Criminal Justice Research Expands in NIJ’s 50th Year

David Muhlhausen, director of the Justice Department’s research agency, predicted at a Washington DC meeting that research will play “an ever more important role in how the criminal justice field operates.” The National Institute of Justice gave $221 million in grants last year.

Research will play “an ever more important role in how the criminal justice field operates,” says National Institute of Justice (NIJ) director David Muhlhausen.

Muhlhausen, who was appointed to NIJ last year by President Trump, made the prediction last week as current and former agency leaders gathered to mark the 50th anniversary of federal anticrime research.

NIJ was established in part as a result of a 1967 report by President Lyndon B. Johnson’s Commission on Law Enforcement and the Administration of Justice, which urged more anti-crime aid from the federal government to state and local justice systems.

David Mulhausen

NIJ Director David Muhlhausen

Last year, the agency awarded nearly $221 million in grants, compared with $2.9 million in its first year, which amounts to $21.4 million in today’s dollars. One grant in that inaugural year was for a paltry $45.

Muhlhausen said last week that, “As our ability to collect and analyze data continues to improve, we will see an increase in the number of research studies and evaluations conducted as randomized controlled trials.”

The director added, “Over the past decade, the evidence-based movement has
begun to take hold in criminal justice. Over the next 50 years, I see data, evidence, and research becoming not just a tool for criminal justice practitioners, but an integral and indispensable part of all criminal justice operations.”

Two former NIJ directors, James K. (Chips) Stewart from the Reagan administration and John Laub from the Obama administration, also addressed the anniversary gathering.

Stewart recalled that at the time of his nomination as NIJ director in 1982, policymakers in Washington generally had a poor impression of the impact of social science research on criminal justice. They often quoted an early-1970s paper by Robert Martinson that concluded “nothing works” to fight crime.

Stewart, a former police officer himself, took the view that NIJ could help police, courts, and corrections agencies around the U.S. verify what approaches do work.

An early experiment supported by NIJ was an examination in Newark, N.J., and Houston by criminologist Lawrence Sherman on how police officers could make a measurable difference in local communities’ sense of safety, Stewart recalled. Crime dropped in the areas studied. The study was received skeptically in Congress, many of whose members favored sending more offenders to prison as the main response to rising crime rates, Stewart said.

Stewart cited several NIJ-supported research projects that had practical results, such as the development of “hot spots” policing in which officers concentrated on proved high-crime areas, requiring drug testing for suspects who were released pending trial, improving body armor that saved many police officers’ lives, and promoting less-than-lethal alternatives than firearms for police use of force.

He hailed the development of DNA evidence analysis, which both identified suspects who had eluded arrest and freed suspects who were mistakenly accused and convicted.

Stewart, who now is based at CNA, a Virginia-based nonprofit research and analysis organization, suggested that NIJ make its future research agenda “more outcome-focused.”

Among questions that deserve more research, he said, are why crime hasdropped in many cities but increased in some, like Chicago and Philadelphia, and how former police chief Bill Bratton was able to help decrease crime both in New York City and Los Angeles.

Stewart urged studying how Camden, N.J., which once was crime-plagued, has seen rates of lawbreaking down and attracted business investments. Police Chief Scott Thompson, who also spoke at the NIJ anniversary, has assigned 80 percent of patrol officers to work in the community and has only 20 percent responding to 911 calls, Stewart said.

Laub, the former NIJ director who returned to his post as a criminologist at the University of Maryland, told the anniversary event that, “Science – not intuition or gut instinct – needs to inform justice policies, practices, and programs.” He cited several subjects on which intuition was wrong: “If you reduce crime, you will reduce fear of crime … As the severity of punishment goes up, crime will go down … (and) boot camps will reduce delinquency and crime.”

Laub urged NIJ to focus on three major areas: “the nature of crime, the causes of
crime, and the response to crime.” He backs the notion of “translational criminology,” meaning that, “If we want to prevent, reduce, and manage crime, scientific discoveries must be translated into policy and practice.”

Laub noted that two of the biggest developments of recent decades—the major increase in prison populations and the decline in crime rates—had no research portfolio at NIJ when he arrived in 2010.

NIJ supported several projects to address these issues, including a National Academies of Sciences study of the causes and consequences of high rates of incarceration, a roundtable on crime trends, and research on such subjects as race, crime, and victimization; the victim-offender overlap; police legitimacy, and swift and certain criminal sanctions.

The federal agency has funded an Executive Session on Policing and Public Safety at Harvard, in which “the leading police executives and researchers come together on a regular basis to tackle the major issues facing the field.”

NIJ also is backing an Executive Session on Community Corrections at Harvard.

Laub concluded that NIJ must “do all it can to promote evidence-based policies within the federal government” and to fund “empirical research to inform DOJ policies on matters such as immigration and crime, crime trends, drug use and crime, forensic sciences, and sentencing.” The agency “should strive to be bold and tackle the hard problems,” he said.

Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report. Readers’ comments are welcome.


Why Traffic Stops Don’t Stop Crime

A new book examines the arrest data produced by police stops in North Carolina, and finds the public safety benefit was minimal. In a conversation with The Crime Report, co-author Frank Baumgartner says it should make police departments across the US reevaluate a practice that is often considered racial profiling.

Traffic stops represent one of the most common interactions between police and citizens in this country. According to the Bureau of Justice Statistics, an estimated 42 percent of face-to-face contacts that U.S. residents had with police in 2011 occurred for this reason alone.

However, in the wake of the tragic shooting deaths of Philando Castile, Terence Crutcher, Walter Scott, and others—all of which resulted from seemingly routine traffic stops—fears about the influence of racial profiling and police bias on these common, day-to-day policing practices have grown.

Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race, co-authored by Frank Baumgartner, a political science professor at the University of North Carolina at Chapel Hill; Prof. Derek Epp of the University of Texas at Austin, and fellow researcher Kelsey Shoub, statistically analyzes recorded traffic stops from North Carolina to discover the hard truth about similar accusations made in the state nearly 20 years ago, and paint a comparative picture for today.

In a conversation with TCR, Baumgartner explains how traffic stops have become an ineffectual tool for catching criminals, why the numbers found in North Carolina represent a systemic problem in law enforcement around the country, and how the argument of “a few bad apples” in policing falls short of reality.

The Crime Report: This book is the end result of a law passed in North Carolina almost 20 years ago that sought to find the truth behind suspicions of racial profiling in policing by collecting and analyzing traffic stop data. Can you explain how it got from there to here?

Frank Baumgartner: When the law was passed that mandated the data collection back in 1999, the law mandated that the state itself, the attorney general, or somebody in the department of justice for North Carolina, should issue periodic reports, every six months, to evaluate these allegations. The law was passed because there were allegations in the (state) General Assembly, essentially members of the black and Hispanic caucus, elected officials, who said they thought there was rampant profiling going on. It was part of a nationwide conversation about the issue of driving while black and brown.

North Carolina was the first state in the nation to mandate collecting the data, so those lawmakers deserve credit. They said that either we’ll put to rest spurious allegations or we’re going to validate these concerns and our police will take immediate steps to alleviate them. And none of that happened. Nobody ever issued a single report. So, when we got the data, and delved further and further into it, it pretty much validated all of those concerns of those legislators back in the 1990s. Everything they alleged and were concerned about, we can show is really true: two-to-one search rates; two-to-one increased likelihood of being pulled over if you are nonwhite.

TCR: Why was there no follow up?  And is this sort of inaction suggestive of a national problem?

FB: Nobody likes to have someone looking over their shoulder in their workplace, and these allegations were really quite troubling. They were about racial bias within the police forces and they were nationwide. I think it’s a hot button issue, the police agencies are very politically powerful, and this is a topic that a lot of police departments would rather not have in the public domain. It’s uncomfortable. I give a lot of police chiefs credit for engaging with the conversation.

It’s a tough conversation because they’re put on the defensive. So, I think it’s natural that people didn’t want to go there. But we had to. Even though it’s uncomfortable, we have to validate the fact that black and brown Americans are subjected to a quite different style of policing than white middle-class Americans. And if white middle-class Americans don’t understand that, then there’s a terrible empathy gap for the realities of people on the ground who are black and Hispanic. We have to understand how policing works in all of our communities.

TCR: How do traffic stops reflect an evolution in today’s policing that has led to a general increase in racial profiling?

 FB: In the 1960s and 1970s policing changed. It went from being more reactive, finding out that there had been a crime and then trying to hunt down the bad guy, solve the crime, and bring the perpetrator to justice, to a more proactive style of policing where the police thought they could solve the crimes before they happen by interrupting people who look like they might be up to no good. So, I think we developed a whole method and ideology in the profession of policing around an idea that they could keep us safe by interrupting criminal activity before it even happened.

At the core of that idea is the assumption that you can tell if someone might be involved in criminal activity just by looking at them. And that’s where racial profiling became such a concern. The magic of this system is that white middle-class people were unaware that the police were using visual cues towards young men of color and treating them in such a different manner. If you’re black or brown, you’re a suspect citizen right from the beginning.

TCR: How do police use traffic regulations to pursue this kind of biased policing?

FB: The method came out of hunches and seat-of-the-pants ideas that developed into accepted practices in policing. Back in the 1970s, airports were trying to develop profiles of who might be a hijacker and who might be a drug courier, and those are all based on appearances. Police then applied these to the highways.

The first sheriff to do this was in Florida. He kept getting his cases thrown out because judges all said he had no probable cause because he was literally just pulling people over because of appearances. That sheriff then went to the vehicle and highway codes and found that Florida highway laws gave him 500 reasons to pull someone over. He studied the manual and he studied the law and he found that there were so many technical violations of either the vehicle code, such as tinted windows or a crack on the brake light, or the traffic code, such as touching the yellow line, that you can be pulled over for.

The key decision by the U.S. Supreme Court was one that said that if you’re breaking the law you can be investigated. That means if everybody is speeding, then the police can pull over those who they want and say they pulled you over for speeding. Most people speed, so everyone’s open to a police investigation. Once they pull you over, and they start a conversation, they might ask for permission to search your car, and that’s where all the profiling happens. They really did have to find a methodology. The methodology of a traffic stop is fantastic because, if you’re driving a car, you’re pretty much opening yourself up to a police investigation.

TCR: According to your book, the logic behind this practice is that “you have to kiss a lot of frogs before you find a prince.” How did such a general practice come about and is this defence of it valid?

FB: I think that it came to be used because of the war on drugs and the idea that there’s this incredible mania among the law enforcement community about the danger of drug couriers and drug kingpins. But the thing about kissing a lot of frogs, for one, is that it’s unfortunate that the police would think of citizens driving down the road as frogs. They’re citizens and they have the right to their own privacy and the right to be free from unreasonable search and seizure. I think that the idea was that thousands of people would be deprived of their constitutional right to privacy and to travel unimpeded in the hope that one out of a thousand or one out of a hundred might be found carrying some drugs. And the Supreme Court validated this idea.

The police said everybody has to pay a small price so we can all be safe, and the Supreme Court said that since it’s only a momentary inconvenience, it’s a reasonable price to pay. And that makes good sense if you are white and middle class, like most of the Supreme Court justices, and it might happen to you once every ten years. You’re not subjected to that many police pullovers, and certainly not to very many searches. But if you’re a young black or Hispanic male, you might be pulled over frequently. So, it’s not just a momentary inconvenience, it’s a consistent statement by the government that they suspect you of wrongdoing. So, that’s where we really wanted to make the case that the court system has kind of misunderstood this.

They’ve given the police the green light to do these dragnets and very large scale traffic stops, justified by the war on drugs and crime, but it’s a very inefficient use of time and a very big waste of police money that, in addition, alienates so many people.

TCR: What are the psychological effects on minorities from these continual stops?

 FB: Philando Castile, before he was killed in Minnesota, was in his early 30s and had been pulled over by the police, even in his short time as a driver, dozens of times. I’ve been driving since the 1970s, I’ve only ever been pulled over two or three times, and I’ve never been searched. So, if it happens to you once every 25 years, it’s true that that’s a momentary inconvenience.

But, if you’re just a young man of color, and you simply happen to fit a certain demographic profile that the police associate with crime, or if you just happen to live in a neighborhood where there’s more policing because there’s more crime, you might find that to be a routine occurrence. And when you know that it was a pretext, and you really weren’t driving in an unsafe manner, it teaches you that you are not a full citizen, that the police think of you as a potential criminal. And that’s a harsh lesson for a young man to learn.

TCR: When it comes to tragedies like Philando Castile, there is always the argument that it happened because of a “bad apple.” How valid is that argument?

 FB: It’s valid, but it’s incomplete. We found that there were a lot of officers who had statistical patterns that are really quite troubling and I can tell you that I think some of them lost their jobs after their chiefs had seen some of this data. But, that’s not the whole picture, the entire system of racial profiling or disparate outcomes of traffic stops cannot be put at the feet of just a few bad apples, it’s really much more systemic.

Even when we take the bad apples out of the equation or we control for them statistically, we still see dramatic differences in how white and black drivers are treated, even when they’re treated by officers who are not the bad apples. We identified about a third of all officers as having more than a two-to-one ratio of searching black drivers compared to whites. So there are systemic, institutional patterns that are widespread, and then there are a lot of bad apples.

TCR: How does the level of officer discretion contribute to this problem?

FB: I keep thinking, I’m a college professor, and I think there are a lot of us in public service who are supposed to follow rules. Imagine you’re a third-grade teacher, and you teach reading. It’s not optional whether or not to cover certain parts of the curriculum. Principals and other supervisors are going to be pretty hands-on in making sure that all the third-grade teachers in the school are teaching the same curriculum. You have good teachers and bad teachers, easy teachers and hard teachers, but still the curriculum is the curriculum. Policing is really not like that. The disparities in behavior that we see from officer to officer are shocking. It is not particularly a racial thing, but a dynamic of the great degree of freedom and discretion that an individual police officer has. I think that’s an important characteristic of policing as work. It’s a decentralized workplace; it’s really hard for supervisors to monitor exactly what employees are doing.

Frank Baumgartner

Frank Baumgartner

As it turns out, when we looked at …the cases where they pulled someone over for speeding and the percentage of times they gave a ticket rather than a warning, the number goes from 0 percent to 100 percent, from to A to Z. It’s shocking how much variability there is in the outcome of a traffic stop based on who’s the officer. Some officers never search anybody, and some search 30 percent of the people they pull over. Some officers never make an arrest and some arrest 10 percent of the people they encounter. There’s a huge difference.

TCR: What are the different kinds of searches police can engage in?

FB: Essentially, if a police officer develops the idea, based on the situation, that there’s a probable cause that the individual is engaged in a crime or hiding contraband, then the officer has the legal right to search that individual and bring them into custody if they don’t agree. Let’s say they see what appears to be a gun, then they have probable cause to believe you have a concealed weapon and they don’t have to ask your permission to search you.

If they don’t have probable cause, then their only way to do a search is to ask the driver if they have drugs in the car and if they can search the trunk. And it’s your constitutional right to say no. But, of course, it’s very intimidating when an officer with a gun says I’d like to search your car. It technically has to be phrased in the form of a question, but that can be done in a way that’s quite intimidating.

TCR: Are there ways to tackle this issue of potential intimidation?

FB: One of the most effective reforms that we found in North Carolina was that some cities mandated the use of a written form. It says, “I hereby voluntarily consent to have my car searched and all of its belongings, and here’s the password to my iPhone because I understand that’s going to be searched as well.” And, of course, nobody signs this form. Once you lay out your constitutional rights to privacy, and you lay out that the officer does not have probable cause and he’s just asking for permission, nobody signs that form. It’s a very effective protection of people’s constitutional right to privacy.

The counter-argument is that this will lead criminals to go free. So, we looked at that very carefully and, essentially, our analysis of all these traffic stops shows that they just don’t catch many criminals. It’s better for the police to just enforce the speeding laws and pull people over who are drunk driving, running through stop signs, and driving dangerously than to use the vehicle code as an excuse to fight the war on drugs. It’s just not very efficient.

TCR: Aside from consent forms, what else needs to be done to create a change?

 FB: Our main proposal is that the traffic police should focus on traffic safety. Don’t use the vehicle code as an excuse to fight a war on drugs or a war on crime more generally. It’ll keep us all safer if you do that and it will reduce the probability that a police officer is going to just make a pretextual traffic stop just because he doesn’t like the look of somebody, and use the traffic rules as excuses to do a police investigation. That’s contrary to our basic American freedoms, and it’s not effective.

Second, de-emphasize the regulatory and equipment failure traffic stops, all these traffic stops that are used as a pretext to get to talk to somebody, and, instead, emphasize ones that are truly related to safety. The problem with these equipment failure stops is that they bring poor people into contact with the police more commonly than wealthy or middle-class people. Middle-class people are less likely to have expired tags or bald tires because money is not a barrier to getting their inspection sticker. But poor people might be in that situation on a much more routine basis because they just can’t afford to get their tires replaced. Now that’s fair when a vehicle becomes dangerous to drive, but many of them are pretexts to pull a person over and see if they’re carrying drugs. It’s a waste of everyone’s time.

We found that police don’t find contraband very often, even when there’s a probable cause search, and when they do find something it’s usually a very, very small amount, so little that they won’t even arrest the person in a typical case. It’s not a cache of guns, or a stack of money. Which calls into question the public safety benefit of all these millions and millions of traffic stops.

TCR: What do you say to those who may claim that this is just a North Carolina problem?

FB: Well we have a paper where we’ve been gathering data. We’ve collected all the data from the statewide databases for Illinois, Maryland, and Connecticut. We’ve looked at other cities and state highway patrol agencies who’ve made their data available. We’ve found the same patterns, and actually much more serious patterns in the Chicago area.

Isidoro Rodriguez

If you remember the DOJ report on Ferguson, Missouri, they did an in-depth analysis of all the troubles in that community and one part of their report was looking at the traffic stops and the searches that resulted from them. And in Ferguson they were concerned by a 70 percent disparity: black drivers were 1.7 times likely to be searched. That’s below the average for North Carolina. Ferguson was an outlier, a tinderbox, in terms of racial resentment between the community and police department, and they only had a 70 percent disparity.

North Carolina is not a hot spot of racial disparity, (but) we find these same things all throughout the country. The state is not peculiar. It is quite generalizable. We should all look at this and try to understand that there is a reason for this resentment. We should take that seriously and police departments should look and see if these policies are really worth the trouble.

Isidoro Rodriguez is a contributing writer to The Crime Report, specializing policing issues. He welcomes readers’ comments.


If You Need to Wear a Halo, Don’t Be a Public Defender

Public defenders are tasked with ensuring the poorest and most vulnerable defendants have their day in court. Sometimes that means swallowing their ideals of social justice.

A recent communiqué from my HR department casually let fall that we’re now a “social justice organization” dedicated to the interests of “the most vulnerable.”

And all these years we thought we were a public defender! We feel like the hero of Kafka’s “Metamorphosis” who woke up one morning to find himself turned into a giant beetle.

As an appellate squawk, we represent people charged convicted of crimes.


Illustration by Squawk.

Sometimes we think they might be innocent or that what they did shouldn’t be a crime, but we’re still not going to enter them into any “most vulnerable” contest. You want vulnerable, go read the Brooklyn DA’s press handouts about crime victims.

Just kidding, don’t go near them.

As for “justice,” that’s exactly what we’re defending our clients against. “Bringing to justice,” “obtaining justice,” etc. are gassy expressions for prosecution and punishment. The Italians are more candid: giustiziare means putting to death. Tacking “social” onto it doesn’t make it less retributive.

Might as well put a hat on a piranha.

As Hamlet said, “Use every man after his desert and who should ‘scape whipping?” We try to help our clients escape whipping, deserving or not.

How would a defense lawyer look plumping for social justice?

DEFENSE COUNSEL: The machete allegedly found on my client should be suppressed as the fruit of an unlawful search. The officer testified that his only reason for stopping him was that he was wearing a Red Sox cap.

PROSECUTOR: We concede there’s no possible interpretation of the Fourth Amendment that could justify the search. But the defendant had the machete hidden in his jacket while walking around the hallway of a public housing project inhabited by itty-bitty little children, marginalized women and the gaga elderly.

DEFENSE COUNSEL: Golly, I guess the interests of the vulnerable come first.

COURT: You bet. Suppression denied.


DEFENSE COUNSEL: The statute requires the indictment to be dismissed if the People aren’t ready for trial within 180 days without good cause. Since it’s now the 181st day, my client is entitled to dismissal.

PROSECUTOR: We candidly admit the delay is due solely to our laziness and incompetence. But the defendant was caught shooting into the window of a bodega, thereby offending the dignity of huddled masses yearning to breathe free.

DEFENSE COUNSEL: Well, I certainly don’t want to be a xenophobe. We’ll let it go this time.


DEFENSE COUNSEL: I move to preclude any testimony about my client’s prior record, pursuant to People v. Rodriguez.

COURT: What does Rodriguez say?

DEFENSE COUNSEL: How should I know? The point is, my client belongs to a marginalized, powerless, historically underrepresented group.

PROSECUTOR: So does the victim.

DEFENSE COUNSEL: Oh, yeah? What supposedly powerless group does your so-called victim belong to?

PROSECUTOR: Dead people.

DEFENSE COUNSEL: Oh. Okay, you win.

Moral: If you need to wear a halo, don’t go into criminal defense.

 Appellate Squawk is the pseudonym of an appellate attorney in New York City, and the author of a satirical legal blog of that name. Readers’ comments are welcomed.


How to Reduce the ‘Safety Hazards’ of Plea Bargaining

The U.S. legal system should apply engineers’ tactics for minimizing risk to the plea bargaining process to prevent innocents from going to jail, Israeli law professor Boaz Sangero writes in a paper for the Pace Law Review.

The U.S. legal system should apply engineers’ tactics for minimizing risk to the plea bargaining process to prevent innocents from going to jail, according to Israeli law professor Boaz Sangero.

In a paper entitled “Safety from Plea Bargains’ Hazards,” Sangero, who heads the Criminal Law and Criminology Department at the Academic Center of Law and Business in Israel, claims plea bargains pose a safety hazard because of the way they incentivize defendants to plead guilty regardless of their actual innocence or guilt, resulting in false convictions.

Sangero’s article, published this summer in the Pace Law Review, argues that this risk can be mitigated through the adoption of an engineering safety model called the “System-Theoretic Accident Model and Processes” (STAMP).

STAMP seeks to identify potential safety hazards and put “constraints” in place to prevent them before they occur.

The vast majority of cases in the American criminal justice system are settled through plea deals—97 percent of all federal cases and 94 percent of state ones. In a plea-bargain arrangement, the defendant admits to an offense in exchange for a lighter sentence from the prosecutor than could be expected following a conviction at trial.

Advocates of plea bargaining emphasize their supposed benefits for the state and the defendant. The former saves the resources it would otherwise spend on conducting a full trial; the latter receives more lenient sentencing.

But for precisely these reasons, the plea-bargain system runs the risk of locking up the innocent.

Plea bargains make sentencing significantly more efficient for prosecutors, allowing them to file many more indictments than they realistically could try.

This spares prosecutors from needing to screen cases before indicting. While they might otherwise be forced to weed out those cases where the charge is minor and the evidence weak, plea bargains enable them to overcharge, knowing that most cases will be resolved quickly and without going to trial.

Meanwhile, the threat of heavy “trial penalties”—more severe punishments should defendants go to trial and lose—incentivize defendants to plead guilty regardless of their actual innocence or the strength of the case against them.

Sangero cites the 1999 Tulia scandal, in which the testimony of one undercover cop in Tulia, Tx., later shown to be an unreliable witness, resulted in the conviction of 38 people on drug charges, as one example of a case where many innocent defendants were charged, and a majority of them pled guilty.

A judge later overturned all 38 convictions, begging the question why so many innocent people pled guilty in the first place.

The likely answer lies in the disparities in sentencing. A Tulia defendant who accepted a plea bargain received an average of four years in prison, compared to the 51 years received by a defendant who plead innocent and was convicted at trial.

Citing data from the Innocence Project, Sangero estimates that the false conviction rate is at least five percent for the most serious crimes, and potentially higher for more minor infractions.

To put that number in context: in 2006 (more recent aggregate data is difficult to come by), state courts sentenced an estimated 1,132,290 persons for a felony conviction. Using the Innocence Project estimates, that translates to over 55,000 false felony convictions at the state level alone.

But while false convictions are not uncommon, they often go undetected. Exonerations are exceedingly rare, leading policymakers and the public to believe that the justice system is functioning well when in fact large numbers of innocent people are behind bars.

“The plea-bargain system in its entirety is truly a disaster, particularly from the perspective of the need for safety from false convictions,” Sangero writes.

“Indeed, it is an anti-safety system.”

Though Sangero himself is a proponent of abolishing plea bargains entirely, he concedes this is unlikely to happen any time soon. So to mitigate the harm he says is caused by the process, he proposes applying STAMP to the criminal justice system to reduce the number of innocent defendants who are incarcerated on plea deals.

STAMP involves determining what “constraints” are necessary to make the system function without mishap and creating a structure that will enforce those constraints.

In the case of the plea-bargaining system, this means strengthening the pre-screening procedures for indictments. Courts, Sangero says, should review whether the evidence of the defendant’s guilt merits his or her indictment in the first place.

He also calls for recognizing defendants’ right to a fair plea-bargain offer so that the offer a defendant receives is not dependent on the goodwill of a particular prosecutor.

The court should supervise the prosecution’s policy for determining the divergence between the punishment offered in a plea deal and that expected if convicted at trial, Sangero writes, so as to remove any enticement to confess for the innocent. This it a normal practice in the German legal system, he points out.

In the event that a guilty plea is entered, the court must ensure that the defendant’s confession of guilt was made with adequate legal representation and not under duress from the prosecution.

“There have always been, and always will be, accidents. In some aspects of our life, this appears to be an inevitable reality,” Sangero writes.

“However, a high rate of accidents is not an unavoidable fact of life, but rather the product of human negligence; or even indifference—when we are aware of the danger but do not act purposefully to reduce it.”

Sangero argues that adopting STAMP will “significantly reduce the terrible phenomenon of false convictions based on plea bargains.”

Elena Schwartz is a TCR news intern. Readers’ comments are welcome.


Why Can’t We Redeem the Sex Offender?

Restrictions on sex offenders, regardless of the details of their cases, have created a huge population of people whose potential contributions to society have been foreclosed. It’s time to give them the same chance as other returning citizens for full reintegration when they pose no further threat, says a former sentencing mitigation researcher.

Before soliciting a teenage girl who turned out to be an undercover cop on the internet, Joshua Hoe was director of the University of Michigan’s debate team.

Although he now runs a podcast that features staffers from prestigious criminal justice reform organizations like the Brennan Center for Justice, Families Against Mandatory Minimums, and #Cut50, he still cannot get a salaried day job in the field because of his conviction for a sex crime.

Nick Dubin, who has a doctorate in psychology, was a nationally renowned speaker on the autism rights circuit. That changed forever in 2010, when he was prosecuted for viewing inappropriate images of young adolescents on the internet. He did not deliver a keynote speech to an audience again until 2018, and he only did so to use his story as a cautionary tale for the parents of autistic kids.

There are almost one million Americans on sex offender registries. These include individuals who committed grave offenses, but also people like Hoe and Durbin who were convicted for comparatively minor sex crimes.

A number of those on the registry were in fact convicted for offenses committed when they were children themselves.

But the stigma applied to the sex offender, which treats him or her the same as the worst rapist and child abuser imaginable, regardless of the details of the case, has created a huge population of people with skills whose potential contributions to society have been foreclosed.

Civil liberties advocates have begun to acknowledge the need for a more humane approach to individuals who have been involved with the justice system and have paid the price with time served.

The American Civil Liberties Union (ACLU), for example, has pushed to end employment discrimination against those with criminal records. But only recently has the organization started to hire people who had previously committed serious violent acts.

Bill Cobb, the deputy director of ACLU National’s Smart Justice Initiative has a record that includes kidnapping and robbery. Esmie Tseng stabbed her own mother to death at 16 years old and recently started working at ACLU of Kansas. And Bruce Reilly, who went to law school with a second-degree murder conviction, was able to get internships and fellowships at the Brennan Center and the Vera Institute of Justice, though he ended up at a less high-profile organization for full-time work.

There is no sex offender equivalent of these redemption stories.

The closest example is Guy Hamilton-Smith, who is on the sex-offender registry for looking at pictures of naked underage teens on the internet. Hamilton-Smith graduated toward the top of his  law school class at University of Kentucky, and was categorically rejected by the Kentucky Bar due to his registry status.

But he was able to land a legal fellow position at Mitchell Hamline School of Law’s Sex Offense Litigation and Policy Research Center.

Nevertheless, it appears that to this day, there is not one ACLU branch that employs a sex offender registrant as a staff member.

This disparity underlines a serious gap in the American victims’ rights movement.

The New Yorker recently ran a piece about that movement, describing how it fused the conservative “tough on crime” mentality of the 1980s and 1990s with trauma-centered feminism.

This has been translated too often into a perspective that allowing someone who sexually wronged someone else move on and contribute to society in a meaningful fashion is equivalent to “tell[ing] all survivors that they don’t matter.”

Such black-and-white thinking, which is frequently encouraged by law enforcement officials, leaves out a multitude of victim experiences, offenses, and cultural attitudes.

After David Bowie’s death, the internet went into a frenzy over a statutory rape he had committed in his early-to-mid 20s against a 15-year-old girl who many decades later still considers the encounter consensual.

To legitimize the controversy for purposes of debate, a writer at Mic noted that “[t]he age of consent in California was (and still is) 18 years of age.” But that also puts California at odds with the vast majority of the nation, which sets the age at 16 or 17, as well as the world, where the age averages between 15 and 16.

Some developed nations go even lower: Germany and Italy set the age at 14, and until 2013, Spain set it at 13. The trend in recent years is to increase the age, but Malta just decreased the age from 18 to 16.

The imbalance produces Kafka-esque cases like Edward Marrero, who admitted in court, while testifying in defense of a friend, that he took sexual photos of his 17-year-old girlfriend when he was only 20.

As a result of that admission, Marrero now faces 15-to-30 years in federal prison for photos of a relationship that would be legal nearly everywhere.

Is a close-in-age relationship between a young adult and a teenager morally worse than murder, kidnapping, or robbery? The dearth of otherwise-qualified sex offenders in criminal justice reform careers shows how far we have tilted the scales from reality.

Criminal justice reform organizations should be able to ask these questions and answer them realistically, without putting too much credence in the byzantine and cruel state of American sex laws.

After all, we know better than anyone that the law is not always what is right. Let’s hire sex offenders when we believe in them.

Rory Fleming, founder of Foglight Strategies, worked as a sentencing mitigation researcher on felony sex offense cases, where he employed a sex registrant. He is also a friend of Guy Hamilton-Smith, mentioned above, and facilitated Smith’s writing for the Appeal, a publication of the Fair Punishment Project, at Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. Fleming blogs at The Digest and tweets from @RoryFleming8A.


How Soccer Corruption Gets Kicked into the Shadows

As France and Croatia prepare for battle in this weekend’s World Cup Final, a new report warns there is little hope that efforts to end systemic bribery and kickbacks in the Fédération Internationale de Football Association (FIFA) will succeed. A Michigan law professor says it’s time for Switzerland to force the organization to become accountable.

As millions of fans gear up for this weekend’s World Cup Final, a new report warns there is little prospect that efforts to clean up soccer corruption inside the Fédération Internationale de Football Association (FIFA) will succeed.

“After more than a century of scandals and a broad array of Potemkin-like reform maneuvers carefully packaged in pleasant press releases, it is clear that, absent accountability, FIFA will continue to operate as it has, seeking maximum personal profit for those at the top of football,” writes Bruce W. Bean, a law professor at the Michigan State University-School of Law.

In a report published in The Palgrave Handbook on the Economics of Manipulation in Sport, and posted online this week, Bean offers a somber assessment of the chances for eliminating the chicanery that has plagued the professional football (soccer) industry since at least 1974, with the election of FIFA president Joao Havelange (who has been called the “Father of FIFA Corruption”).

 The report is unlikely to faze fans of the world’s most-watched athletic event, except possibly for the Olympics, as they prepare for Sunday’s final match between France and Croatia. (England and Belgium square off in a contest for third place Saturday)—and it is even less likely to surprise critics who have been calling futilely for reforms for decades.

But, in his review of the history of efforts to eradicate FIFA corruption, Bean provides a timely reminder of what happens when huge amounts of money become entangled with sport.

Soccer accounts for almost 40 percent of the $80 billion in annual revenues from sports worldwide. FIFA reported that it earned $4.8 billion alone for the four-year cycle ending with the 2014 Rio World Cup, with a profit of $2.6 billion.

The organization’s top executives have reaped personal windfalls as a result. In 2015, FIFA’s president earned a salary of $3.9 million, and the general secretary went home with $2.2 million.

The extraordinary wealth has contributed to giving FIFA “the impunity of a sovereign, rogue nation,” Bean writes.

As one example, ahead of the 2014 World Cup in Brazil, FIFA successfully demanded the country change its 10-year-old law banning the sale of alcohol at football matches for the event.

But its vast global reach is also what makes prosecuting FIFA executives so difficult. FIFA is organized under the Civil Code of Switzerland, but it has had presidents from seven different countries.

Bean notes the Swiss government has not been cooperative in prosecuting corruption allegations, often claiming that its reach cannot extend to criminal activities in other countries—a reluctance that Bean says has earned it the well-deserved title of the “Nirvana for Sports Criminals.”

A series of reports and initiatives have been formulated to try and amend the corruption evident within the FIFA organization—with limited success.

An Independent Governance Committee (IGC) was established in 2011 to assess FIFA’s response to allegations of corruption in the past. and to make recommendations going forward. The makeup of the committee was not entirely independent, as was intended, and involved FIFA paying committee members $5,000 a day for their work.

The IGC published its first report in March 2012, which included recommendations to create an audit and compliance committee, add independent chairs for independent committees, establish term limits for FIFA executive members, amongst others. The IGC said in this report that FIFA’s cooperation with the investigation left a lot to be desired.

“Overall, the answers by FIFA regarding the handling of alleged misconduct were not fully satisfactory to the IGC,” the report, cited by Bean, said.

“Based on the discussion of specific examples, FIFA has—in the opinion of the IGC—shown a lack of proactive and systematic follow-up on allegations.”

The IGC released a final report in 2014 saying it was concerned about how seriously senior FIFA officials were taking the recommendations, adding that an outside, independent body should continue to work with FIFA to help enact reform.

Near the end of 2014, the chair of the Investigative Chamber of the Ethics Committee, Michael Garcia, submitted the Garcia Report to Hans-Joachim Eckert, FIFA’s head of adjudication of ethical matters. The 450-page report was withheld from the public in lieu of a 42-page summary prepared by Eckert.

Eckert’s report concluded that the 2018 and 2022 World Cup locations were not chosen on the basis of bribery—which was a hotly contested discussion—and that cash was not given to voting members in exchange for votes. Garcia responded by demanding the publication of the full report, and then resigning after his demand was not met.

In fact, half of the 22 FIFA Executive Committee members who voted in 2010 to choose Russia as the site of the 2018 World Cup, have been accused of corruption related to the process.

In 2015, the Americans became involved in the “cesspit of corruption” when U.S. Attorney General Loretta Lynch revealed a 47-count indictment charging football officials from CONCACAF, the Caribbean, Central and North American Confederation, and from CONMEBOL, the South American Confederation, with numerous crimes involving kickbacks and bribery amounting to $150 million.

But that only earned criticism of the U.S. for involving itself in the football world, with Russian President Vladimir Putin saying it was an attempt to “extend U.S. jurisdiction to other states.”

By the end of 2017, 24 out of 26 defendants being tried in the U.S. had pled guilty.

But the lesson drawn by Bean is that only the Swiss government has the legal authority and clout to end FIFA’s pattern of corruption.

Switzerland, which is home to at least 65 international sports organizations, should apply its own rules of corporate governance to the association, amending them as necessary to exert jurisdiction over FIFA’s worldwide activities, wrote Bean.

“The football world deserves an honest FIFA,” he wrote. “Switzerland must pioneer the way to bring accountability to so-called not-for-profit entities.”

Marianne Dodson is a TCR news intern. She welcomes comments from readers.


Fed Drug Penalty Enhancements Show Racial Disparities: Report

The US Sentencing Commission found that black offenders constituted the majority (51.2 percent) of federal offenders who received a seldom-used penalty enhancement for drug offenses, followed by white offenders (24.3 percent), and Hispanic offenders (22.5 percent).

While penalty enhancements for federal drug offenders are rarely used, they disproportionately impact black offenders,said a report released Thursday by the United States Sentencing Commission (USSC).

The report, the fourth in a series on mandatory minimum penalties, examines the use of 21 U.S.C. § 851, a penalty enhancement for drug offenders with a prior felony drug conviction. To trigger an “851 enhancement,” a prosecutor must file an information citing which prior convictions support the enhanced penalties.

Subjecting an offender to an 851 enhancement significantly affects his or her sentence length, the USSC analysis found. Offenders’ sentences increased by over five years on average when the government filed an 851 information. Offenders who remained subject to the increased minimum at sentencing received an average sentence of nearly a decade longer than the average sentence for offenders who received relief from the filed 851 information.

Relatively few drug offenders actually saw their sentences increase, however – only 3.9 percent of eligible offenders. This is due in large part to a low filing rate. In 2016, the government filed an 851 information against only 12.3 percent of offenders eligible for an increased penalty under the statute – 757 individuals – and withdrew the information in 22.5 percent of those filings.

The application of 851 enhancements showed great geographic variation. For example, prosecutors in five judicial districts sought 851 enhancements against over half of eligible drug trafficking offenders, while the government in 19 districts did not seek a single 851 enhancements against any eligible offenders.

In cases where 851 enhancements are used, the USSC found, mthere was a ore significant impact on black offenders than on other racial groups.

Blacks were more likely to have the requisite prior convictions to qualify for the enhancement: they comprised 42.2 percent of eligible offenders. Even after accounting for eligibility, however, black offenders made up an increasingly large proportion of offenders as they progressed through each stage of the 851 process.

Black offenders constituted the majority (51.2 percent) of offenders against whom the government filed an information seeking an 851 enhancement, followed by white offenders (24.3 percent), and Hispanic offenders (22.5 percent).

The prevalence of black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with black offenders representing 57.9 percent of such offenders.

In its 2011 Mandatory Minimum Report, the USSC recommended that Congress more finely tailor the scope and severity of recidivist enhancements for drug offenses to reduce inconsistency. This report calls into question whether that recommendation has truly been put into action.

This summary was prepared by TCR News intern Elena Schwartz. She welcomes readers’ comments.


Trade Fraud: The ‘Wild New Frontier of White Collar Crime’

Federal prosecutions of importers for fraud increased by 900 percent between 2000 and 2016, according to a study in the Oregon Review of International Law. But the government has barely scratched the surface of criminal activity that has cost millions of dollars in lost revenue and endangered the health of Americans, say the authors.

Federal prosecutions of shady importers have increased 900 percent over the past 16 years, but officials can barely cope with a swelling volume of trade fraud that costs the government millions of dollars in lost revenue and endangers consumer safety, according to a study in the Oregon Review of International Law.

“Countries’ borders are too vast, the volume of imports too great, global customs inspections too porous, and law enforcement resources too few for effective monitoring or deterrence,” the study said.

After compiling a database of trade fraud cases between 2000 and 2016, the authors examined 47 criminal and civil cases involving hundreds of defendants, ranging from “mom and pop” businesses to large conglomerates who had been prosecuted by the Department of Justice.

They concluded that the only way to tame what they described as the “wild, new frontier of white-collar crime” was to develop interagency teams that focused on bringing cases under the False Claims Act, a law enacted enacted in 1863 at the height of the Civil War to combat suppliers of fraudulent goods to the Union Army—and amended several times since.

“For many crimes, criminal prosecution is the only way to protect the public from perpetrators,” said wrote the authors. “However, for white-collar frauds against the government, this is not true.

“The FCA’s stiff penalties, treble damages and heightened mens rea requirement carry a big bang for the buck and can deter future wrongdoing effectively.”

Taking note of the fierce contemporary debate between free trade advocates and protectionists, the authors said both sides should be able to agree that import fraud must be “aggressively pursued.”

“No one has the right to lie about what they are bringing into a country,” they wrote.

According to the study authors, Pamela Bucy Pierson of the University of Alabama School of Law and a former Assistant U.S. Attorney, and Benjamin Patterson Buey, an attorney with Frohsin, Barger & Walthall, a white-collar law firm, the primary motivation for unscrupulous importers was avoiding taxes. But in the process, they facilitated the purchase of goods that endangered the health of whoever bought them.

One example in the cases they examined was an importer who claimed to sell flounder and grouper that that was in fact “Vietnamese catfish laced with prohibited antibiotics.”

While the study conceded that it was impossible to completely isolate and block the flow of adulterated drugs, food or fake goods in an economy that imports some $2.71 trillion worth of products annually , they called on the Department of Justice to adopt a more pro-active strategy to “enhance” the effectiveness of FCA prosecutions.

Their recommendations included:

  1. Team up with other federal agencies responsible for border security and trade, such as Customs and Border Protection, Homeland Security, and the Commerce Department, to create an inter-agency task force devoted to fighting trade fraud;
  2. Hire and train dedicated U.S. Attorneys to specialize in investigating trade fraud;
  3. Enhance the transparency of international shipping records by developing a centralized repository to facilitate the investigation of fraud allegations by informers;
  4. Make information about trade fraud cases more readily available to the public and investigators by creating central databases similar to those created for Medicare fraud.

Noting that increased inspections alone wouldn’t address the scope of the problem, the authors said curbing dishonest trade required the use of sophisticated techniques such as “forensic accounting to trace monetary transactions, grants of immunity to obtain testimony, analysis of paper trails, piercing of fictitious organizations, and dissecting layers of fraudulent transactions.”

The study said fraudulent imports can cost American jobs, citing the example of a family-run lighting business forced to cut its staff after a competitor bought cheap lighting in China, falsified the country of origin, and avoided paying import duties—enabling him to undercut prices.

The impact of the FCA on healthcare is illustrative. Until the FCA was amended in 1987 to stiffen penalties and widen its scope, few cases of health care fraud were successfully prosecuted. But by 2016, there were 501 such cases, and nearly $2.5 billion realized in recoveries, the authors said.

“The FCA’s effectiveness is due, in large part, to the public-private partnership it creates between individuals, qui tam relators, (insider informants who reveal fraudulent practices) and the U.S. Department of Justice,” the study said.

Such insiders are crucial to unearthing some of the world’s most complex transactions.

“While all white-collar crime is difficult to detect, trade fraud is harder,” the authors said. “(It) is hidden in layers of organizations, concealed in byzantine electronic communications, and obscured by money laundering.”

A full copy of the study can be downloaded here.

TCR News Intern John Ramsey assisted in the preparation of this summary. Readers’ comments are welcome.


Will Trump End Federal Support for Justice Reinvestment?

The Trump administration wants to change the direction of a longstanding partnership with nonprofits aimed at reducing prison populations. Thirty-five states have taken part in the program.

Advocates of the 11-year-old national Justice Reinvestment Initiative (JRI) are worried that the Trump administration plans to scuttle federal involvement in the project.

JRI encourages states to reduce prison populations and reinvest money that is saved in programs that help ex-inmates reenter society successfully.

The advocates’ concern is based on two recent developments.

Early this year, the administration asked Congress to end funding for federal participation in JRI, starting with the fiscal year beginning Oct. 1.

Congress hasn’t completed the spending process for next year, but both the Senate and House Appropriations Committees rebuffed the request and included money for justice reinvestment in their proposed budgets for next year.

The Senate panel would fund the program for $28 million. The House panel provided $30 million, although $5 million of that is for anticrime projects unrelated to the core JRI concept. (See earlier coverage in The Crime Report.)

The second action causing concern is a request for grant applications that the Department of Justice (DOJ) issued on June 28.

In it, DOJ sought proposals for a different concept for JRI, one that would focus on reducing recidivism of state prison inmates.

The DOJ document noted that Congress has said that it intends JRI to fund “activities related to criminal justice reform and recidivism reduction.”

The department then announced a “Justice Accountability Initiative” that it says “has been developed to meet the JRI goals to reduce recidivism and reform the  system by improving the effectiveness of risk assessments and to be more data-driven system-wide.”

The DOJ plan proposes to start pilot projects that would improve risk assessment tools that are now being tested to predict repeat criminality among those on probation.

As of 2016, there were 6.8 million people in the U.S. under the supervision of adult correctional systems, with nearly 4.6 million of them on probation or parole.

DOJ says that today’s probation and parole caseloads typically “include high risk individuals who pose a greater threat to public safety and have more criminogenic needs that may require additional services and increased supervision.”

A U.S. Bureau of Justice Statistics study issued earlier this year said that 83 percent of offenders recidivate within 9 years.

“While the use of risk assessments has become wider spread,” DOJ says, “the effectiveness and objectivity of these tools could be improved, updated, or better utilized.”

DOJ is seeking applicants by July 30 that would ‘”develop a new, or improve an existing, risk assessment tool, moving it to a more scientifically rigorous and objective risk prediction tool (based on a computer-driven algorithm), and develop aligned offender monitoring and supervision plans and policies.”

The Justice Department also wants grantees to do related projects, such as assessing  current supervision strategies for former prisoners “and their impact on crime and recidivism and train staff in supervision strategies.”

Other aspects of the proposal include assessing a suggested “data-sharing system” for localities “that would focus on crime and recidivism among offenders released into their communities” and to “improve justice system partners’ abilities to produce a cross-system analysis that provides a better understanding of the contributions of pretrial, probation, parole, reentry, and other services to crime trends.”

The Justice Department proposal, which calls for spending $20 million next year, did not explicitly say that it would end the long-term partnership with outside entities on JRI.

DOJ officials would not elaborate to The Crime Report, but at least one Trump administration official in the department has said he believes that JRI is not consistent with the administration’s “tough on crime” practices.

In a fact sheet issued this week, Pew Charitable Trusts, the principal nonprofit that has partnered with the Justice Department on JRI, said that since 2007, 35 states have reformed sentencing and corrections policies through the initiative.

Other non-federal entities involved in the project are the Council of State Governments Justice Center and the Crime and Justice Institute, and other organizations. The partnering organizations declined to comment on the DOJ actions.

It is possible that they will ask members of Congress who support the current direction of JRI to object to the Trump administration’s changes.

As described by Pew, the state reforms vary, but they “aim to improve public safety and control taxpayer costs by prioritizing prison space for people convicted of serious offenses and investing some of the savings in alternatives to incarceration that are effective at reducing recidivism.”

Since 2007, state imprisonment totals have dropped by 11 percent while crime rates have continued a long-term decline, Pew said. State justice reinvestment laws are expected to save billions of dollars in imprisonment costs.

The Pew publication includes a chart that lists various reforms enacted by states. The policy changes date from laws passed by Texas in 2007 that include easing terms of probation and improving government interventions in offenders’ mental health problems.

Six states passed JRI-related reforms last year, Pew said, including Arkansas, Georgia, Louisiana, Montana, Rhode Island, and North Dakota.

It was not immediately clear whether Pew would continue the aspects of the JRI project that involve helping states pass legislation on corrections issues if the federal government ends its participation.

Louisiana, which had led the nation in state incarceration rates, recently moved to number two behind Oklahoma as the result of changes enacted as part of the JRI initiative.

This week, Gov. John Bel Edwards announced that the state had saved $12.2 million in the current fiscal year, doubling Pew’s initial projections of $6.1 million.

One aspect of the new DOJ Justice Accountability Initiative that could delay or derail it is that like other Justice Department grant programs, applicants must cooperate with federal officials on immigration issues. In other words, “sanctuary cities” or “sanctuary states” would not qualify.

Lawsuits already are pending challenging such requirements for other grants. It is possible that applicants also will contest that announced limitation on the new initiative.

Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report. He welcomes readers’ comments.


Lucas County, Ohio: A Case Study in Fixing America’s Broken Jails

Justice stakeholders in Lucas County, in Ohio, used a grant from the MacArthur Safety +Justice Challenge to tackle jail overcrowding. They achieved significant reductions of 24 percent in pretrial population alone.

For years, the jail in Lucas County, Ohio was an embarrassment.

Elevators didn’t work; inmates slept on floors because of overcrowding; and living conditions resembled an “overall cesspool,” recalls Sheriff John Tharp.

John Tharp

Lucas County Sheriff John Tharp

But today overcrowding has eased with a 24 percent reduction in the pretrial jail population, and a spirit of optimism is shared across the county that they are on their way to significant change.

What happened?

The answer, Tharp and other Lucas County officials told a conference at John Jay College this week, came from a shift in perspectives that involved rethinking how all the parts of the justice system could work together efficiently.

And it involved listening to the individuals who were at the system’s short end: the jail inmates themselves.

“People felt that the system was listening to them,” said Holly Matthews, executive director of the county’s Criminal Justice Coordinating Council, a multi-stakeholder group formed to guide the county’s painstaking journey towards reform.

“They felt they had a voice in the system…[and] this is the outcome you want,” she said.

Holly Matthews

Holly Matthews. Photo by John Ramsey/TCR

In 2016, Lucas County was one of ten “core” sites selected as part of a nationwide effort by the John D. and Catherine T. MacArthur Foundation “Safety + Justice Challenge” to explore ways to fix the nation’s broken jail system. Over the past several decades, jails have emerged as the hidden drivers behind the rise in mass incarceration, with jail populations—particularly in rural areas—tripling since 1980 even as prison numbers fell.

“Research has shown that spending as few as two days in jail can increase the likelihood of a sentence of incarceration,” the foundation said in a statement describing the program. “(It makes) jail a gateway to deeper and more lasting involvement in the criminal justice system.”

See also: Rural (InJustice): The Hidden Crisis in America’s Jails

The $25 million program, which will expand to an estimated 40 jurisdictions, aims to incubate innovative approaches that could serve as models across America of ways to relieve overcrowding.

The county received a grant of $1.76 million to implement its plan for change over a two-year period.

The key stakeholders gathered at John Jay to discuss the results of what was, in effect, a case study in changing hearts and minds before a group of rural reporting fellows participating in a two-day conference exploring the roots of the jail crisis.

The Challenge

The growth of the jail population in Lucas County and the consequent overcrowding reached a degree which demanded a reform in Lucas County’s method of making pretrial release and detention decisions.

In 2014, a year after Tharp was elected sheriff , his focus became building a new jail to remedy these pressing issues. His fervor helped initiate the process of positive change.

Gene Zmuda

The Hon. Gene Zmuda. Photo by John Ramsey/TCR

The obvious first question in constructing a new jail is “What size does it need to be?’

It was a seemingly simple question, but it caused county officials to step back and examine what was driving their increase in jail numbers. They singled out an assessment instrument used in determining whether defendants would be offered bail—a tool used for decades but provided little useful information about the arrestee’s background.

“It was the gospel tool, but it really wasn’t efficient,”  said Judge Gene Zmuda of the Lucas County Court of Common Pleas, who became one of the prime players in the criminal justice coordinating council.

Zmuda said the tool, which had been used for decades in many jurisdictions around the country, contributed to the harmful system in which high-risk, wealthy individuals are frequently released from jail pending trial, while low-risk—usually nonviolent—defendants spend a significant amount of time in jail simply because they cannot afford to post bail.

In order to holistically consider the factors that contribute to an individual’s risk to society and therefore their release, Lucas County adapted the Arnold Foundation Public Safety Assessment (PSA) tool in 2015.

As defined by the Arnold Foundation, the PSA pretrial risk assessment tool “uses evidence-based, neutral information to predict the likelihood that an individual will commit a new crime if released before trial, and to predict the likelihood that he will fail to return for a future court hearing.”

Additionally, the tool indicates individuals who have a heightened probability of committing a violent crime while release on recognizance.

Race and gender neutral, this tool considers the answers to nine questions, gathering information on factors such as age, current offense, and prior convictions (including violent offenses).

“Because this is a risk-based tool, it allows judges to make more informed decisions,” explained Zmuda.

Within three years, this new method resulted in a 30 percent reduction in the average Failure to Appear (FTA) rate, and a 50 percent reduction in the average crime committed, including violent crime, said Matthews.

These figures underscored the county’s goal of keeping the community safe while lessening the strain, both fiscal and social, that a swollen jail population creates.

The positive effects that this one change induced led officials to examine additional areas of their justice system where reform seemed promising and impactful.

“We know we can do [even] better while still maintaining public safety and providing the appropriate services to our community,” says Matthews.

At that point, Lucas County applied for and was selected to participate in the Safety + Justice Challenge.

Strategies for Change

Lucas County selected five strategies to implement after sitting down with stakeholders to fully understand their system and identify problem areas.

One: Pre-arrest Deflection

The main goal of this first strategy is to prevent an individual from coming in contact with the jail (and the justice system) in the first place.

This “pre-arrest” phase revolved around law enforcement. Police have the discretion to determine the next step for an individual: take him or her into custody, send the individual  home, or refer her to a crisis center. Officers received training in skills needed for crisis intervention.

In partnership with the Center for Court Innovation, Lucas County planned to implement a four-hour deflection curriculum class for individuals who commit specific targeted offenses including drug possession, disorderly conduct, and obstructing official business.

If an individual completes this course within a month of eligibility, no charges will be filled against. This breaks the revolving door,  and reduces the amount of low-risk, nonviolent offenders being sent to jail.

The reason for the delay in complete implementation, notes Matthews, is finding a place where officers feel comfortable bringing an individual eligible for this deflection class, but who needs to be removed from the scene and assessed.

For example, an intoxicated individual arrested for disorderly conduct will not understand the conditions of the diversion course until after he or she is sober.

Two: Managing Based on Risk

The notion of whether or not someone will be released from custody after  arrest using a validated risk tool is just the beginning, says Zmuda.

“Once you decide that a [person] is not really a threat to the community or themselves, and therefore shall be released,… how do we deal with it?” he said.

It’s important to get an individual who poses no threat released as quickly as possible from jail,because even a few days in jail can make someone more “criminal minded” and therefore more likely to commit additional offenses, said the judge.

The question then becomes what extent of oversight should the justice system have on that released individual?

Strategy Two has created a “risk score” using the PSA tool to determine the amount of connection that an individual has with the court. The higher the score, the more the connection.

This score, along with the results from the PSA questions, are entered into a digital dashboard allowing officials to easily find comprehensive information for specific offenders in a timely manner.

Zmuda also notes the effectiveness of electronic monitoring as a risk oversight tool, saying that the person is not taking up resources in custody, yet is still not free; there are considerable restrictions placed upon those individuals.

With the digital dashboards, information of offenders supervised by electronic monitoring who enter a restricted zone is immediately added to the dashboard, notifying officers, officials, as well as victims (if applicable).

Three: Population Review Team

The sharing of information is crucial to understanding the whole picture, especially in the case of an offender. Under this strategy, the digital dashboards are shared with all stakeholders involved. This is especially useful for judges, who can now see information on an individual in real-time on the bench when making sentencing or bail decisions.

In order to compile this data, Lucas County has formed a population review team, consisting of a group of officials who review the pretrial jail population on a weekly basis. They look at each specific case to determine exactly who is in the jail and why, including examining documents such as arrest reports, affidavits, and plea negotiations.

According to Matthews, this comprehensive collaboration and review saved 1,800 contracted jail bed days in 2017, effectively eliminating the county jail’s sentence-serving population.

In addition, this team of pretrial service professionals reviews bond recommendations which includes prosecutors, public defenders, pretrial service professionals, mental health personnel, the Lucas County Sheriff’s office and Commissioners’ office. This results in the identification of individuals who are suitable for expedited case resolution or bond modification, getting a defendant through the system as quickly as possible.

This strategy is very effective in quantifying trends that show who is being put in jail, why and for how long, allowing officials to pinpoint potential issues within the jail system.

Four: Diversion of the Underserved Population

Reaching populations that are under-served and overlooked within the system is imperative to addressing underlying issues driving jail numbers.

With the PSA tool, there are no disparities in the release decision of an offender. When determining an individual’s situation, a judge has no racial or gender-based bias that would lead to inequality in this decision (if based solely on the PSA).

In this implementation, as well as the deflection curriculum course, Matthews reported that the feedback of these strategies was overwhelmingly positive.

Five: Coordinated Probation Practices

When reviewing exactly who was in the Lucas County Jail, officials found that over30 percent of the population comprised individuals who violated parole.

One of the reasons why this number is so high is due to the lack of coordinated probation practices. Lucas County maintains five adult probation authorities which serve each of the five independent criminal courts within the county jurisdiction.

These different authorities did not coordinate in operating policies and procedures for offender supervision or case management for offenders serving probation in more than one court. This forces individuals on parole to juggle different, sometimes conflicting, standards and obligations, resulting in technical violations of parole, landing the individual in jail for a minor infraction.

To facilitate coordination, Lucas County hired a community corrections coordinator who brought training and evidence-based practices to the facilities; stressing the importance again of sharing information.


Since the implementation of these strategies in 2016, the Lucas County average daily jail population has undergone a 26.3 percent reduction.

Not only is the general total on a decline but the population of inmates in jail for pretrial detention was reduced by 20 percent.

Lucas County found that African Americans represent 58 percent of the arrested jail population while they represent only 19 percent of the general community population and 29 percent of those diverted from the system.

This made it clear that in order to address racial and ethnic disparities within the justice system, the focus must be on arrest and diversion.

As Lucas County shows, the role that pretrial deflection and post-conviction supervision plays in the reducing the jail population is critical.

After seeing the success that the SJC brought about within the jail system, Lucas County is currently applying to multiple foundations for additional grants, striving to expand these efforts and bring about greater positive results.

Laura Binczewski is a TCR News Intern. Readers’ comments are welcome.