An Immigrant’s Story: I Deserve a Second Chance, Too

A Cambodian man who was tried as an adult for crimes he committed as a juvenile now fights deportation, and argues that he’s being penalized twice for the “poor choices” he made decades earlier.

Although there is a large and vast discussion throughout the United States around immigration, a subset of the immigrant population has been virtually ignored: the juvenile offender who is tried as an adult and faces deportation for those criminal convictions, often times many years later, after his or her release from the prison system.

It happened to me.

I was brought to the United States as a child of a refugee. My family fled Cambodia for their lives by trekking across a militarized jungle border and heading into Thailand where I would be born, after they spent two years in emergency refugee camps.

In 1981, I was carried off a plane into LAX and into the U.S. I was 61 days old.

A couple of years later, my parents divorced and my mother abandoned me. I was raised by a single father until I was 16. My father died of cancer at the end of my junior year in high school. I was left to grieve alone. At a time when I needed more support than ever, none was to be had.

I wound up gravitating to my peers on the streets. This ultimately led my arrest at the age of 17. Tried as an adult, I was convicted on three counts of armed robbery. I was sent to prison with 23 years and eight months looming over my head.

Phal Sok, speaking at a demonstration, Photo courtesy of author

After SB260 was passed in California—the result of a trifecta of juvenile offender cases heard in the U.S.Supreme Court—it was recognized that juveniles should not be treated the same way as adults, and that they should not be subjected to mandatory penalties.

That opened the way for me to appear before the parole board, where I was one of the few in that category who met the criteria for release.

For most, liberation brings freedom.

But not for me.

On my release from prison in July 2015, I was put into a cage inside a van, shackled, chained, and hauled off to immigration detention. Two months later, I was ordered deported by an immigration judge.

I was not provided an attorney. The law does not guarantee representation in this type of court. It is not a federal court nor is it a criminal court. It is an administrative court where judges can be fired—and so they are tough.

All those constitutionally supported rules that said I should be treated differently did not apply. Second chances? None. Even though I had legal status as a permanent resident, the nation’s immigration laws offered no mechanism to ask any judge to keep my papers.

After being ordered deported, I was finally released temporarily in March 2016 while I awaited a “travel document” (passport). Four months later, after a passport was issued, Immigration and Customs Enforcement (ICE) took me back into detention a second time, for a flight to Cambodia. But I had learned a few things during my years inside about U.S. legal procedure.

I filed a Petition for Review of the decision and a motion to stay my deportation in order to stop my scheduled flight to Cambodia-a country I have never been in. While that appeal was in process, I was sent to a private for-profit immigration prison in Louisiana until my deportation case was thankfully reopened.

That opened the door for me to return to California.

At my first court, I requested a bond hearing and one was set for three weeks later. The community came to support me on that day and I was granted bond. Then the community really came together and paid it, so I can be here to fight another day.

But if I am to stay in the States, I must receive a pardon from the governor. That is the only window I have. Soon, my time to see another judge will come and I do not know what will unfold on that day.

In the ten months since my release on bond, I consistently volunteer in the community, just like when I came home the first time in March 2016—when I gave my time at a non-profit to keep children connected with their incarcerated parent(s).

I have fed the homeless and I am part of a local church where I volunteer regularly. I am now an organizer with the Youth Justice Coalition (in California) working to protect our youth of today and tomorrow. I am also no longer on parole after earning an early discharge.

I believe I’ve done some good after paying the price for the crimes I committed. But immigration law does not see it that way. It only sees the poor choices I made as a juvenile. It only sees the 17-year old that made those choices.

It only sees the “bad hombre.”

I’m not that person anymore. But will the justice system in the only country I have ever really known recognize that?

Phal Sok lives today in Los Angeles. He is awaiting another hearing, scheduled in February 2018. He wrote this essay as a project for a community writing group in Los Angeles led by The Beat Within, a San Francisco prison writing workshop, and the Youth Justice Coalition. He welcomes readers’ comments.


Why the Stop Enabling Sex Traffickers Act is the Wrong Solution

A bill pending in Congress to make websites liable for publishing information that facilitates sex trafficking doesn’t address the real issues at stake—and may do more harm than good, writes a trafficking expert.

Last month, a bipartisan group of senators introduced a bill that would make websites liable for publishing information that facilitates sex trafficking.

The Stop Enabling Sex Traffickers Act has since become the center of a stormy debate between those who believe this measure will curb a practice that exploits thousands of young women every year, and tech industry giants like Google and their supporters who argue that it threatens free speech.

But the fundamental problem with the bill, sponsored by Senators Rob Portman (R-Ohio) and Richard Blumenthal (D-Connecticut), is that it doesn’t address the real issues at stake —and in fact may do more harm than good.

The measure is not based on any theoretical or empirical research; nor does it reflect an authoritative understanding of the scope and history of how commercial sex and sex trafficking are sold in the United States.

Editors’ Note: A vote on the bill was scheduled as early as this week.

Proponents of the bill make two critically flawed assumptions:

  • Certain websites make it easier to sex traffic than others, instead of the internet as a whole;
  • Website administrators can accurately discern the difference between a law- abiding business, a consenting adult sex worker, and a victim of sex trafficking—something that trained law enforcement have trouble doing.

Legislators, their constituents and anti-trafficking advocates should first understand the history and landscape of commercial sex advertisements before they rush to pass this bill.

Periodicals have been used to disseminate information about the commercial sex trade for centuries. Between 1757 and 1795 Harris’s List of Covent Garden Ladies—a concise almanac of prostitutes available for hire in London—was published annually and disseminated to middle and upper class men.

Harris’s descriptions suggest that many of the sex workers were actually trafficked adults or juveniles.

Between the late 1800s and early 1900s, Blue Books containing brothel advertisements and a directory of sex workers were given to visitors and tourists and those seeking a “good time” while in New Orleans, Louisiana and San Antonio, Texas.

By the mid- to late-20th century, conventional newspapers and specialty erotic magazines, like Swank in New York, were used to share information about the commercial sex trade locally, by various publishers across the country.

These ads eventually transitioned online with the popularization of the internet.

Despite the claims by some legislators and anti trafficking advocates, who typically are narrowly focused on classified advertisement websites like and, one particular website did not facilitate sex trafficking.

There are literally thousands of websites that specifically cater to the commercial sex industry. Here’s a partial list:,,,,,, and

Many are hosted internationally, possibly beyond the reach of U.S.-based law enforcement, such as,, and, or on the dark web.

Advertisements hosted on one website are often cross-posted on other forums, social media, dating websites and even in print.

For example, a recent edition of Korean Entertainment Weekly (a free publication for Korean residents in the D.C. Metropolitan Area) features prominent ads for massage parlors that are also advertised on

Ultimately, it is often very difficult to discern legitimate businesses from consenting adult sex industries, and sex trafficked victims.

Sen. Blumenthal, especially, should know this, considering that there is documented evidence suggesting that police in his state, Connecticut, erroneously criminalized at least one victim of sex trafficking. The victim had been trafficked on and off for nearly two decades, but was arrested by the police when she reported her sex trafficker/pimp.

For years, bipartisan anti-trafficking legislators like Portman and Blumenthal were on a crusade to get well-known classified advertisement websites to shutter their “erotic” or “adult” sections.

When acquiesced to that request in 2010, the ads were simply displaced, some to the casual encounters dating section of the same website and many to When also shuttered its adult section earlier this year, the ads were again displaced to the dating section.

Eradicating these commercial sex ads completely is a Sisyphean task.

Third-party businesses should not be held accountable for the crimes committed by traffickers. Instead of avoiding hard decisions for cheap headlines, legislators should start facilitating cooperation between these websites and law enforcement.

Kimberly Mehlman-Orozco

In order to combat the historically clandestine crime of sex trafficking, we must increase the capabilities of law enforcement to use online ads as the catalyst for more arrests and rescues.

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. Dr. Mehlman-Orozco’s writing can be found in The Washington PostThe Houston ChronicleThe Baltimore SunThe Diplomatic Courier, among other media.


Third Degree Lite: The Abuse of Confessions

The “Reid Interrogation Method” was developed in the mid-20th century to eliminate abuses in police interrogations. But it hasn’t eliminated concerns about false confessions and should be shelved, writes a University of Virginia law researcher.

This year 20 million viewers of Making a Murderer had ring-side seats to the interrogation of Brendan Dassey. The video is a play-by-play of how to extract a confession using what is known as the Reid Method.

This interrogation technique is employed by virtually every law enforcement agency in North America. Over the past half-century, hundreds of thousands of officers have been trained to use it. The point of the Reid Method is not to gather information that will help solve the crime; it is to obtain a confession from a suspect that the police have decided is guilty.

To that end, the detectives bullied and cajoled their 17-year old, 73-IQ suspect, all the while feeding him information about the case, which Dassey compliantly regurgitated. These were not overzealous, rule-breaking detectives. They were following protocol.

As Justice White put it, “A confession is like no other evidence.” It’s a shortcut to a conviction, a complete reversal of the presumption of innocence. Until the mid-20th century, the Third Degree was the dominant method of interrogation. The police would beat a suspect until he confessed and lie about it in court.

They got away with it because judges looked the other way.

Then, in 1931, a commission appointed by President Hoover to investigate Prohibition-related corruption, issued the Wickersham Report, which documented the ubiquitous use of the Third Degree. The report, popularized in a widely-read book, shocked the American public.

The Third Degree had to be abandoned when juries started rejecting confessions and doubting police witnesses. This left police without an effective method of extracting confessions. Into this void stepped John Reid, who obtained convictions in several high-profile cases, including that of Darrell Parker in 1955. Reid touted his technique as a reliable way of obtaining confessions without physical abuse.

The Reid Method embodies the spirit of the Third Degree. It seeks to overcome the suspect’s will by deploying coercive psychological tactics, many of them on display during the Dassey interrogation: magnifying his feelings of helplessness by isolating him for extended periods; lying that there’s overwhelming evidence against him, or that he flunked a lie detector test; minimizing the seriousness of the crime and suggesting, falsely, that he’ll suffer minimal punishment if he fesses up.

The problem is that, like the Third Degree, the Reid Method coerces confessions from the innocent as well as the guilty. There are many proven false confessors: The Central Park Five, Norfolk Four, Beatrice Six, Jeffrey Deskovic, and countless others.

As of 2004, Professors Steven Drizin and Richard Leo had identified 125 such cases. (An update is currently being compiled.)

Sometimes, innocent defendants even come to believe in their own guilt. These are not isolated incidents. Because the Reid Method employs such brute psychological tactics, these are foreseeable, even expected, results.

Poster advertising Ken Burns’ film. Photo via Wikipedia

Reid & Associates, a private organization found to train police officers in the Reid Method, claims that false confessions result only from abusing the method. But Darrell Parker, who was interrogated by Reid himself, was found factually innocent and exonerated 50 years later.

Moreover, the Reid Method’s tactics are inherently subject to abuse. For example, it is common for interrogators to feed suspects details known only by investigators and the perpetrator. At trial, prosecutors then argue that the confession must be genuine because it contains details that only to the culprit would know.

In Dassey’s case, Prof. Leo found that approximately half of the 17 corroborating pieces of evidence claimed by the prosecution were prompted by interrogators. The Dassey District Court recounts many of these, the most remarkable of which concerns the shooting.

The detectives work hard to get Dassey to volunteer that the victim was shot in the head, but come up short again and again. Finally, an exasperated detective says: “I’m just going to come out and ask you—who shot her in the head?”

Dassey responds that Avery did and, in doing so, incriminates himself.

In Miranda v. Arizona, the Supreme Court identified the Reid Method as an engine for stripping suspects of their Fifth and Sixth Amendment rights. The Court designed the Miranda warnings to give people the keys to the interrogation room door, but in reality, very few effectively exercise their Miranda rights.

Innocent people are particularly unlikely to invoke Miranda, naïvely believing that the truth will set them free. Miranda also creates the presumption that the confession is voluntary, making it next-to-impossible to prove it’s coerced. False confessions, time and time again, prove themselves so powerful that they convict innocent defendants even in the face of exculpating DNA evidence.

Fortunately, scientifically grounded methods are cropping up, such as PEACE, used with success in England, and HIG, developed by the CIA to interrogate suspected terrorists after the public backlash against waterboarding. LAPD has piloted the HIG method with promising resultsWicklander-Zulawski & Associates, one of the largest police training organizations, publicly denounced the Reid Method after having taught it for over three decades.

Americans have great faith in their justice system—law enforcement in particular. But they react forcefully when that trust is betrayed.

The Wickersham Report’s outing of the Third Degree led to its abandonment. When the abuses at Abu Ghraib and Guantanamo became public, law enforcement had to find other methods of interrogating suspected terrorists. Documented police abuses are forcing change in the way police patrol many urban areas.

If the public were to become aware of psychological torment inflicted on criminal suspects using the current Reid Method, many of them innocent, they would force law enforcement to adopt new methods of interrogation that do not trample on constitutional rights.

America is waking up. It’s time for another Wickersham Commission to investigate the uses and abuses of the Reid Method by federal, state and local law enforcement authorities—some 20,000 nationwide. Wickersham II should include representatives of all interested parties—police, prosecutors, defense attorneys, criminal justice scholars and, most importantly, exonerated false confessors who can report first-hand how they came to inculpate themselves in heinous crimes they did not commit.

Wyatt Kozinski

If the Reid Method can withstand the tsunami of criticism compiled in my paper, then it will be validated as a useful law enforcement tool. I believe, however, that the Reid Method will be shown for what it really is: The Third Degree of the psyche.

Wyatt Kozinski is a student at the University of Virginia Law School. He has an undergraduate degree in Cognitive Psychology from the University of California at Irvine. He welcomes comments from readers, and can be reached on Twitter. @WyattKozinski


The Ordeal of Gay and Transgender Prisoners

In most prisons in America, LGBTI inmates face systematic discrimination and cruelty. But the Stafford Creek facility in Washington has implemented model policies that address their special needs.

One day last year, when I was enrolled in a vocational program at Stafford Creek Corrections Center in Washington State, a classmate of mine disappeared.

The reason behind his vanishing act was strange and, to me, seemed to be nothing more than prisoner rumor-mongering.

Here’s the story. While working in the kitchen he went outside to dump the trash and then proceeded to climb the security fence that separated the kitchen area from the facility’s industrial complex.

He wasn’t trying to escape—he could only have gone from one part of the compound to another. Instead, it appeared to be an attempt at suicide-by-correctional officer.

Or a loss of sanity.

The rumors of his fence-climbing turned out to be true. When he was released from disciplinary segregation three weeks later, he was allowed to go back to school and he ended up seated next to me in the classroom. I couldn’t help but ask what led him to pull a stunt like that.

Voice tinged with sadness, my classmate quietly revealed to me that he was a “she”—that is, transgender. She had felt alone and depressed, and had long been struggling with her sexual identity.

That was the last thing I expected to hear that morning. But once I heard this, I realized that I understood just where she was coming from—at least with respect to feeling alone and depressed.

I have long known how cruel life can be for gay, bisexual and transgender prisoners.

It can be a miserable existence.

Over the 25 years that I have been confined, the treatment they often receive is amongst the foul things I have had to turn a blind eye to—and it haunts me.

Most prisons are “an all-male world shaped by deprivation” and it can be especially loathsome for a prisoner who is a “gal-boy,” according to prison author Wilbert Rideau. He recounts how such inmates of Louisiana’s Angola prison were often forced to serve as sexual outlets and “sold, traded, used as collateral, gambled off, or given away” by their “owners.”

Victor Hassine, an inmate in Pennsylvania’s Graterford Correctional Institution, recounts in his book, “Life Without Parole: Living in Prison Today,” incidents when (presumably homosexual) staff members in Graterford isolated, overpowered and raped openly gay prisoners; and in other instances, denied “entitlements, such as positive parole reports, until victims agree to have sex.”

Such is life for many gay and gender-nonconforming prisoners in America. It is a portrait of a world of depression.

From an evolutionary standpoint this is understandable.

In his book, “Origin of the Species,” Charles Darwin explains how depression “is well adapted to make a creature guard itself against any great or sudden evil.”

When depression is experienced by prisoners who are already at risk because of their sexual identity, life can be worse than it otherwise would be in a correctional facility. That’s because the behavior of depressed people can produce negative reactions from those around them and lead to rejection, according to research published by J. Strack and J.C. Coyne in the Journal of Personality and Social Psychology.

Other researchers have demonstrated that once feelings of rejection become the norm, those who are depressed will begin associating with people who reinforce their poor self-image.

These are the last people a “gal-boy” should be associating with if prison safety and security is taken seriously.

Maybe this factored into why Stafford Creek began implementing policies and practices embracing gay, bisexual, transgender, and intersex prisoners.

It began last November when an LGBTI Support Group was formed with the blessing of the Associate Superintendent, Jeneva Cotton.

According to the original flyer, the purpose of the group was to foster “a supportive and educational environment” and “provide a safe platform for open dialogue about topics such as Gender Identity, Stigmas, Spirituality, Resources, Self-Acceptance [and] Incarceration.”

This group is now dubbed the “Community,” and one of the ground rules is to “Have Each Other’s Back.”

In the nine months since the Community began to meet regularly there have been noticeable changes throughout the facility.

LGBTI prisoners have been seen to wear pants so tight that—were any other prisoner wearing them—they would be rushed to the clothing room to receive pants that are looser fitting.

The appearance of some prisoners has been altered dramatically by the plucking of eyebrows and application of homemade rouge on cheeks.

Sports bras have been issued and some at times are obviously stuffed with…something.

And correctional officers can be made to perform “modified” pat searches if a prisoner proclaims her gender non-conformity.

Make no mistake about it: This is a social experiment under the auspices of Stafford Creek Superintendent Margaret Gilbert.

While many believe these changes are predicated on the whim of highly-placed sympathizers within the state Department of Corrections (DOC), they’re actually rooted in pre-existing policies and legislative decrees.

One of the purposes of punishment in the State of Washington is to “offer the offender an opportunity to improve himself or herself.” The Legislature has also mandated that the correctional system should treat all prisoners “fairly and equitably.”

Over the years, such dictates have led to accommodations being made for prisoners besides those who are marginalized due to their sexual identity.

For instance, there was a time when African-American hair products were not sold within the DOC system, but the Black Prisoners’ Caucus successfully advocated for Afrocentric conditioners and hair grease.

Non-Christian faiths are given the freedom to practice their religions even when correctional officials have reason to believe the “religion” is simply a front for a security threat group

Muslim prisoners can even be seen every Friday at Stafford Creek wearing religious garb to their prayer service.

Ironically, many of the very prisoners who have the freedom to express their minority cultures and non-conventional religious ideologies are staunchly opposed to LGBTI prisoners having a Community with the stated vision of creating “A Positive, Pro-Social Environment that Nurtures Acceptance, Individuality & Equality.”

Grumbling aside, I seriously doubt that Associate Superintendent Cotton and other administrators at Stafford Creek are simply hell bent on enforcing political correctness. There is actually an argument to be made that such policies and practices further the goal of rehabilitation.

It all comes down to programming.

According to researchers Keith O’Brian and Sarah Lawrence of the Washington State Institute for Public Policy, job training, vocation educational programs, and work release “produce modest but statistically significant reductions in recidivism.”

Yet as Michael Lovaglia notes in his book, “Knowing People: The Personal Use of Social Psychology, “Depression creates profound problems in the social functioning of those who suffer from it, more so than any other psychiatric disorders.”

My fence-climbing, transgender classmate’s experience demonstrates quite clearly how prisoners’ desire to take advantage of program opportunities can be inhibited when they feel alone, isolated, and are struggling with their sexual identity in a hyper-masculine subculture that views them contemptuously.

Without such programming (or the ability to do so effectively), there will not be “statistically significant reductions in recidivism” for prisoners who are marginalized due to their sexual identities.

The DOC in Washington State also has an avowed commitment “to non-discrimination in offender programming” and seeks to “prevent discrimination from occurring by identifying practices and procedures that could have the effect of discrimination and take steps to eliminate the potential for discrimination.”

So, for those who believe that allowing stuffed sports bras, plucked eye brows, and tight slacks is going too far simply to make some “weirdos” feel adjusted enough to program effectively—you should know that the DOC is directed to “positively impact offenders” and the Legislature believes “[a]ll citizens, the public and inmates alike, have a personal [ ] obligation in the corrections system.”

In light of all this, my suggestion to the dissenters inside prison is this: Bite your tongue and consider your acquiescence a fulfillment of your personal obligation to the correctional system.

If you feel differently, go ahead and say or do the wrong thing and I promise that you will feel the full wrath of bureaucracy.

Or maybe not.

Jeremiah Bourgeois

Soon there will be a new regime at Stafford Creek when Margaret Gilbert retires on September 15.

In Gilbert’s farewell message she wrote, “Every time you make a decision to do the right thing you’re creating a future. Every time you make a bad decision it affects someone else.”

Only time will tell what the future will bring for LGBTI prisoners at Stafford Creek.

Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he is currently serving 25 years to life for a crime committed when he was 14. He welcomes comments from readers.


How to Tackle the Nation’s Missing Persons Challenge

A federally funded database called NamUs provides free forensic and analytical resources for missing, unidentified and unclaimed person cases. But unless all states make it mandatory for use by local authorities, its full potential won’t be realized, say three Florida researchers.

On any given day in the United States, there are close to 100,000 active missing persons entries in the FBI’s National Crime Information Center (NCIC) database.

Approximately 4,400 unidentified human remains will be recovered every year, on top of the 40,000 that currently exist nationally.

These numbers are only estimates, because there has not been a national endeavor to locate and track unidentified decedents from years past. Many of these cases slipped through the cracks because they either were never entered in NCIC or investigative efforts ended prematurely—or both—which means that many victims have been cremated or are lying in unmarked graves.

These long-term cases are often fraught with errors, as science and investigative methods have changed over the decades. The degree to which old cases are updated to current standards is highly variable across jurisdictions.

Erin Kimmerle

This has generated an enormous problem: The number of missing and unidentified persons is beyond the capability of the majority of law enforcement and medical examiners/coroners to identify these individuals and reunite them with their families.

In order to help solve these cases, there are a number of tools and resources in place, but one of the most effective is the federally funded program called NamUs, which provides an invaluable, free resource that has been proven to work.

NamUs, an acronym for the National Missing and Unidentified Persons System, operated by the National Institute of Justice, is a resource center housing a database of missing persons and unidentified decedent records across the U.S.

It comprises three databases: The Missing Persons Database, the Unidentified Persons Database and the Unclaimed Persons Database.

Thomas McAndrew

In addition to being a data clearing-house, NamUs provides free forensic and analytical resources for missing, unidentified and unclaimed person cases. It’s a free online system that can be searched by medical examiners, coroners, law enforcement officials and the general public (including victim’s families) from all over the country in hopes of resolving these cases.

When a new missing person or unidentified decedent case is entered into NamUs, the system automatically performs cross-matching comparisons between the databases, searching for matches or similarities among cases. The system also has an advanced search feature that allows for public users as well as law enforcement, medical examiners and coroners to locate potential matches based on unique features, such as scars, marks, tattoos, jewelry, skeletal or biometric information, and other physical descriptions.

But the system can accomplish so much more if it is used to its fullest potential.

Currently, the use of this tool is voluntary. In Florida, for example the NCIC lists 3,233 missing persons and 783 unidentified persons. However, the NamUs system reports only 1,086 missing cases and exceeds NCIC with 870 unidentified person’s cases.

James Markey

These cases will only be solved if we know who we are looking for and if all available resources and tools are deployed to ensure each case has its best chance at being solved.

Many medical examiner and coroner’s offices around the country do not have access to NCIC. Having an online database is therefore crucial. The public user interface brings awareness and rejuvenates cold cases for possible new leads. It provides free resources and services for cases in NamUs that would not otherwise be available to some agencies.

The public user interface is also a successful tool for families searching for their loved ones based on unique characteristics. The different access levels for public and criminal justice personnel allow for detailed investigative notes and the results of forensic analysis to be hidden from public view.

It offers internet accessibility and ease of use for all users as it streamlines case management by serving as a single source for all case information and digital images. Comprehensive case reports and Missing Person Posters are accessible to print out and customized per user type. Geo-mapping helps to find the closest resources available. Geo-mapping is also available for cases that are returned as a result of an advanced search.

 And it’s cost-efficient.

Some have argued that this tool creates a burden for busy and resource-strapped investigators. But it is actually a tool that helps save time and money by solving cases. The free resources available include training on how to use NamUs and technical support for adding entries.

NamUs is currently undergoing a re-build/upgrade into the NamUs 2.0 system. The upgrade will have a mechanism to allow for data exchange between agencies and in some instances even state databases. Data exchange between NamUs and NCIC is prohibited by federal legislation that the FBI must follow with regard to the data contained in the NCIC system.

Therefore, the only current way to ensure effective use of the NamUs Program – for all users to help solve cases—is for each agency to enter its own cases. NCIC data is limited in nature compared to NamUs data fields and therefore a case will still need enhancements once imported from NCIC.

These barriers need to be addressed. All law enforcement agencies and medical examiners/coroners should be required by law and/or state policy to use NamUs for long-term Missing and Unidentified individuals.

New York, Ohio, Connecticut, and Tennessee already have state laws requiring the use of NamUs. California’s Penal Code states that the clearinghouse must share data with NamUs. There are similar proposals in other states as well, but all state legislatures should be concerned that missing- and unidentified-persons cases have their best chance at being solved.

At a minimum, effective legislation should require:

  • that human remains of unknown unidentified persons are not destroyed (i.e. cremated);
  • that biometric data is collected and tested to aid with identification; and
  • that the NamUs entries be mandatory.

Furthermore, in regards to long-term missing person cases, law enforcement should be required to obtain family reference samples for entry into the national DNA database.

If the systems that have been put in place are used to their fullest potential, the unidentified stand a much better chance of being given back their name.

Erin Kimmerle, PhD. Thomas C. McAndrew, M.A.,and James Markey, M.Ed. are co-founders of TANC (Time to Address the Nation’s Cold Cases), a think tank dedicated to addressing policy issues related to unresolved violent crime investigations. Kimmerle and McAndrew are on the faculty of the Florida Institute for Forensic Anthropology & Applied Sciences at the University of South Florida. Markey is a retired Phoenix police officer on appointment to the University of South Florida. To learn more, please visit or visit their blog at Readers comments are welcome.


Is Crime Predictable?

In Philip K. Dick’s “Minority Report,” criminals could be identified before they committed a crime. Computer-generated risk algorithms used by courts to determine whether individuals should be released ahead of trial have brought us a step closer to that world–and our challenge is to use them responsibly, says a George Mason University professor.

Should the increased use of computer-generated risk algorithms to determine criminal justice outcomes be cause for concern or celebration?

This is a hard question to answer, but not for the reasons most people think.

Judges around the country are using computer-generated algorithms to predict the likelihood that a person will commit crime in the future. They use these predictions to help determine pretrial custody, sentence length, prison security-level, probation, parole, and post-release supervision.

Proponents argue that by replacing the ad-hoc and subjective assessments of judges with sophisticated risk assessment instruments, we can reduce incarceration without affecting public safety.

Critics respond that they don’t want to live in a “Minority Report” state where people are punished for crimes before they are committed—particularly if risk assessments are biased against blacks.

Which side is right?

Should the increased use of computer-generated risk algorithms to determine criminal justice outcomes be cause for concern or celebration? This is a hard question to answer, but not for the reasons most people think.

It’s hard to answer because there is no single answer: The impacts that risk assessments have in practice depend crucially on how they are implemented.

Risk assessments are tools—no more and no less. They can be used to increase incarceration or decrease incarceration. They can be used to increase racial disparities or decrease disparities.

They can be used to direct “high risk” people towards support and services or to punish them more harshly.They can be implemented in such a broad set of ways that thinking about them monolithically just doesn’t make sense.

Take bail reform, for example.

Bail reform is one of the most active areas of change in criminal justice right now, and risk assessments have been a key part of many reform efforts. The idea behind the current bail reform movement is that pretrial custody decisions should be made on the basis of risk, not resources.

Instead of conditioning pretrial release on the ability to pay bail—which discriminates against the poor—reformers argue that pretrial release should be determined by a defendant’s risk of crime or flight.

Traditionally, risk of crime or flight was evaluated informally by a judge. Now, many jurisdictions are providing judges with computer-generated risk scores to help them decide whether the defendant can be safely released.These risk scores take into account factors like criminal history, age and sometimes even socio-economic characteristics like employment or stable housing.

One of the more popular pretrial risk assessment instruments, called the PSA, was developed by the Laura and John Arnold Foundation in 2013 and has since been adopted in some thirty jurisdictions as well as three entire states. The results have been mixed.

New Jersey has seen a dramatic decline in its pretrial detention rate: the number of people detained pretrial has dropped by about a third since the PSA was adopted in January. Lucas County which hosts the low-income city of Toledo, Ohio, has actually seen an increase in the pretrial detention rate since the PSA was adopted.

And a recent report suggests that Chicago judges have been largely ignoring the PSA. Why such different results in different places?  It’s too soon to say for sure, but there are a number of details related to implementation that could make all the difference.

For one, determining what level of risk should be considered “high” is a subjective determination.

In fact, there is little consensus on this issue: depending on the instrument and the jurisdiction, a high risk classification can correspond with a probability of re-arrest that’s as low as 10% or as high as 42%. 

Editor’s Note: For a critical view on the validity of risk-assessment tools, see Eric Siddall’s Viewpoint in TCR, Aug. 25, 2017.

With the PSA, jurisdictions can decide themselves where to set the cutoff points between a low, moderate, and high risk ranking.

These groupings are important, because many jurisdictions also adopt specific recommendations for each risk classification. For example, New Jersey uses a decision-making framework that recommends pretrial detention only for defendants with the highest risk scores: this has been defined so as to include only about 5% of arrestees.

In Mecklenberg County, another PSA site, generally only defendants who are ranked “low” or “below-average” on their risk score are recommended for release without secured monetary bond, making it less likely that risk assessment will increase release rates very much.

The impact that risk assessments have in practice will also depend on the extent to which judges use them. In most jurisdictions, judges are given the final say, and if they do not want to follow the recommendations associated with the risk assessment they don’t have to.

recent survey showed that only a small minority of judges thought that risk assessments were better at predicting future crime than judges.

If judges are skeptical, what would them motivate them? They will be more likely to use the risk assessment if they are incentivized to do so; for example, if deviating from the recommendations requires a detailed written reason for doing so.

Or, if there is a system of accountability where their actions are tracked and monitored. Finally, it’s always possible to implement risk assessment in a way that doesn’t involve judicial discretion at all.

Kentucky, a leader in the use of pretrial risk assessments, recently revised its procedures so that all low and moderate risk defendants facing non-serious charges are automatically released immediately after booking.

As for racial disparities, we know very little about how these have been impacted by the adoption of risk assessment. But what little we do know suggests that implementation details are important.In a recent study, I found that pretrial risk assessment in Kentucky benefited white defendants more than black, but this was solely because judges in the predominantly-white rural counties followed the recommendations of the risk assessment more than judges in the more racially mixed urban counties.

In other words, the increased racial disparities brought on by risk assessment were caused by regional trends in use, not by the bias of the instrument.This pattern might have been reversed if training, monitoring, and accountability in urban areas were higher.

Furthermore, risk assessment is more likely to reduce racial disparities if it is used to replace monetary bail. Since black defendants tend to have lower incomes, they tend to be less able to afford bail than white defendants.

One study shows that half the race gap in pretrial detention is explained by race differences in the likelihood of posting a given bond amount.

Megan Stevenson

We already live in a “Minority Report” state: the practice of grounding criminal justice decisions on predictions about future crime has been around a long time. The recent shift towards adopting risk assessment tools simply formalizes this process—and in doing so, provides an opportunity to shape what this process looks like.

Instead of embracing risk assessment wholeheartedly or condemning it without reserve, reformers should ask whether there is a particular implementation design by which risk assessment could advance the much-needed goals of reform.

Megan T. Stevenson is an economist and Assistant Professor of Law at George Mason University. She welcomes comments from readers.


Breaking Good: How to Heal a Life Spent Behind Bars

Most prisoners on the verge of release focus on how to get back on their feet. But finding ways to contribute to the community matters much more—and ensures that they will never return to prison, writes a Washington State inmate on the eve of his parole hearing.

On August 15, I had my first parole hearing.

I have been confined since 1992.  At the age of 14, I murdered a convenience-store owner and wounded his business partner after one of the men finished testifying against my then-15-year-old brother.  Several months earlier, my brother had shot the man I later killed, along with another of the store’s co-owners.

In the 25 years since, I’ve obtained a college education, I have written in academic journals, and I am a regular columnist for The Crime Report.  I intend to earn my master’s degree if the parole board sets me free.  My brother (who spent four years in a juvenile detention facility for his crimes) is now a mortgage broker, a homeowner, a devoted father, and a little league coach.

Our lives illustrate that prisoners do not have to be defined by the commission of (even heinous) crimes.

As for the victims, there is no happy ending.

Those who survived the shootings were forced to abandon their convenience store. The American Dream that they pursued after immigrating to this country from war-torn Eritrea was gone.  While I was engaged in college studies, the murder victim’s family decided to return to East Africa rather than remain in America’s inner city.

Their lives powerfully illustrate victimization.

No matter my remorse and personal reform, I cannot undo this tragedy. This truth often brings the following question to my mind: What do I owe society in the event that I am freed?

I rarely hear this question posed behind prison walls.

I have watched countless men serve lengthy sentences, and the prevailing sentiment is that their imprisonment satisfies the “debt” owed to society. They believe that one’s loss of liberty serves to wipe the slate clean.

Typically, the most positive thing that I hear men express as their release dates approach is a commitment to be a “square” and make a living by working legitimately.

They pledge to forsake friends who are still “in the game,” and vow they’ll no longer abuse drugs—or rather, to only smoke marijuana occasionally.

They desire to have a relationship with a “solid female” and want to raise a family.

All of this is a perfectly fine strategy for not becoming a recidivist. But why should crime desistance be the sole measure of rehabilitation and successful reintegration?

Why do so many prisoners give little heed to the notion of restoration?

It is true that making amends to the victims of violent crimes is—all too often—impossible to achieve.  Still, there are countless ways in which we can try to improve the communities where we caused so much pain and suffering.

Last year at Stafford Creek Corrections Center, Matthew Emerzian, the founder of a California-based not-for-profit group called Every Monday Matters, illuminated ways that people can make positive changes in their community. He has carried his message of achieving positive change by setting goals every Monday of the year (“52 Mondays”) across the country to get citizens involved in his cause.

But this was the first time he had relayed it to a group of people locked away in a penitentiary.

After receiving a poignant letter from a prisoner at Stafford Creek, Emerzian pulled the necessary strings to give a presentation about his life and his program to approximately 100 men seated attentively in the visiting room.

I was among them.

On that day, we learned that the mission of Every Monday Matters is to get people to take “personal responsibility to make a difference. To matter—one day, one action at a time,” Emerzian explained.

He also summarized the 2007 book he co-authored with Kelly Bozza, which highlights “the benefits of your actions and the collective actions of many” and provides “a specific plan for exactly what you can do and where you can go to make a difference.”

Emerzian had never been imprisoned.  Still, his personal narrative on how his wealth and success could not inoculate him against depression, and that his efforts to make a difference brought new meaning to his life, was certainly compelling.

However, I must admit that I felt his message was empty rhetoric in the confines of a prison environment. In my experience, prisoners who seek to change this community find themselves transformed for the worse. They become consumed by frustration and despair.

As I sat quietly in the room, I began to feel unease when I saw the enraptured looks on the faces of the prison administrators who were listening.

I saw how easy this program could be hijacked—if Emerzian was seduced by the DOC—and morph into something purported to be reformative but devoid of transformational qualities.

This is no conspiracy theory.

Behind the pretense of rehabilitation, the object of prison is retribution and incapacitation, both of which are accomplished through coercion and compulsion. I wasn’t the only one who was skeptical.  As one commentator on the restorative justice concept noted, there are reasons to doubt whether a “constructive ethos” can be integrated “within a punishment-based social institution such as a prison.”

Such projects are often a foil “used to add legitimacy to an institution which remains essentially punitive,” according to Odillo Vidoni Guidoni, who was involved in creating a restorative justice program at a prison in Italy.

With such thoughts running through my mind as I listened to Emerzian and bore witness to administrative glee, I decided to tune out the subsequent brainstorm session on ways to transform Stafford Creek into a community where, hereto, “Every Monday Matters.”  The entire notion seemed pretentious and ridiculous.

I was having none of it.

A year later, Emerzian’s creed has come back to me and I now see the importance of his message.

My change of heart was prompted when a member of the parole board asked me during my hearing, “If you could say anything to the son of the man that you killed, what would you tell him?”

The question shook me.

I doubt that I will ever forget the feelings of self-loathing and grief that flooded me as I answered the question.

These are the emotions that I have tried mightily to subsume despite my remorse for my crimes.

As these feelings overwhelmed me I came to see why prisoners readily accept the proposition that one’s loss of liberty sets things right, for embracing this fiction is nepenthe to relieve the troubled psyche.

Pragmatically, I agree that it seems sensible for prisoners on the verge of release to focus their attention on how to get back on their feet, rather than bettering their community given the impediments to reentry.

But staying free and making a difference are not mutually exclusive.

Nor is devoting oneself to being a “square” from here forward the sole prescription for avoiding recidivism.

It may not be a novel concept, but I have come to believe that developing a social conscience can go a long way towards reducing the risk of re-offending. In fact, putting it into practice is not as difficult as it may seem.

Emerzian and Bozza highlight “52 Mondays to make a difference” by doing things as simple as donating blood, planting a tree, or treating the homeless with dignity. Some might think this is corny, but it’s a useful way to avoid  the mindset that leads two out of three former prisoners to return to the penitentiary.

When one endeavors to do something positive for society it inculcates morality. In so doing, a former prisoner’s likelihood of reoffending diminishes because he or she sees the value of being a benefit to his community.

At least that’s my theory. I hope to one day practice what I’m preaching.

The parole board will determine my destiny by September 15, 2017.  If given the opportunity to be freed, I will indeed make Every Monday Matter.

Jeremiah Bourgeois

It is the least I can do for society.

For my humanity.

I have left many victims in my wake. As have countless others behind bars. We all have a moral imperative to try to forge justice from the injustices we commit.

A weekly activity aimed at making “a difference in a small but significant way” can accomplish more than Emerzian originally conceived.  For someone like me, it is one of the few ways to make amends for all my wrongdoing.

Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he is currently serving 25 years to life for a crime committed when he was 14. He welcomes comments from readers.


Bail Reform: Why Judges Should Reject ‘Risk Assessment’

Tools that use algorithms to determine whether to detain accused individuals before a trial are increasingly being used across the country as an alternative to the bail system. But the vice president of the Los Angeles County Association of Deputy District Attorneys argues that the tools also lead to tragedies.

If you aren’t following bail reform, you may not be aware that accompanying the attempt to eliminate bail across the country is the touting of “risk assessment tools” to determine who should be detained on bail before trial.

Eric Siddall

The chief proponent of such tools is the Arnold Foundation, which maintains that its own “risk assessment tool” is a cutting-edge way of providing an objective assessment in this area.

The tool’s principal developer, (former New Jersey attorney general Anne Milgram), has said she introduced “rigorous statistical analysis” to the process in order to “moneyball criminal justice.”

Editor’s Note: 38 jurisdictions currently use the tool developed by the Arnold Foundation.

However, the use of this tool has led to the wholesale release of violent criminals—and tragedy.

Three recent examples in New Mexico, New Jersey and San Francisco illustrate my point.

A story published by the conservative website The Daily Wire said the assessment tool has led to virtually every defendant arrested in New Mexico for a violent crime being released without bail.

The story quoted a report from Albuquerque NBC affiliate KOB4, saying, “Even with the highest rate of failing to appear in court and the highest rate of new criminal activity for a defendant, the tool still recommends that person[s] be released on their own recognizance unless the prosecutors have filed for preventative detention.”

In New Jersey, according to the Washington Post, the tool determined that a man jailed for illegally possessing a gun was not a danger and recommended his release.  Days later, that man hunted down a rival and shot at him 22 times, killing him.  The family of the victim is now suing the Arnold Foundation, amongst others, for the death.

In San Francisco, the online website SFGate reported that a man suspected of murder was released days earlier after being arrested for possession of two guns.  According to the website, the judge, relying on the assessment tool, rejected the District Attorney’s office recommendation that the man be kept in jail on a probation violation.

A spokesman for the DA’s office was quoted as saying the use of the tool has caused “many instances of contention.”

He continued: “As it relates to this case along with many other cases, we have a disagreement with how that risk assessment is being calculated. They suggested release with certain conditions, and the judge carried out that recommendation and this defendant was released.”

The Arnold Foundation argues that its tool is needed because “failing to appropriately determine the level of risk that a defendant poses impacts future crime and violence, and carries enormous costs–both human and financial.”

The examples in New Mexico, New Jersey and San Francisco certainly attest to the truth of that statement.

Additional Reading: Risk assessment tools have triggered a contentious debate in the criminal justice community. In June, the Supreme Court refused to hear the case of a Wisconsin man who was sentenced to six years in prison by a judge who consulted the results of a  risk assessment algorithm.The plaintiff argued that the use of the algorithm violated his rights to due process. 

The tools represent a threat to the bail bond industry, which has backed two federal lawsuits seeking to end the algorithm’s use.

Eric W. Siddall is Vice President of the Los Angeles Association of Deputy District Attorneys (ADDA), the collective bargaining agent representing nearly 1,000 deputy district attorneys who work for the County of Los Angeles. This is an edited version of an essay that appeared earlier this month on ADDA’s website. Readers’ comments are welcome.


Do Criminal Defendants Have Web Rights?

A Supreme Court ruling in June overruled the conviction of a sex offender for violating his probation after posting on Facebook. But that opens up a new legal minefield over limitations on internet access for anyone convicted of a crime, warns a Washington, DC attorney.

Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service.

In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.

While the majority opinion and concurrence seems grounded in—and specific to—sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts.

Lester Packingham pleaded guilty to having sex with a 13-year-old girl when he was 21. Eight years after his conviction, Lester bragged on Facebook about a happy day in traffic court, using the screen name of J.R. Gerrard, and exclaiming:

“Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent…Praise be to GOD, WOW! Thanks JESUS!”

A police officer tracked down court records, obtained a search warrant, and correctly identified “J.R.” as an alias for Lester Packingham.

He was subsequently convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds.

According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.

Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD—all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.

But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.

There may undoubtedly be pedophiliac versions of Tinder or which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions. Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior. Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?

There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes. For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.

Web restrictions for these defendants are now also in play in a post-Packingham world.

The intention of the judges seeking to restrict web access in these cases is understandable. They want to remove potential tools of victimization from the hands of convicted criminals. But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.

We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net—likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.

In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.

To some, this may be an uncomfortably high price to pay for web freedom.

On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.

While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release.

So, somewhat ironically, the next Lester Packingham may find himself spending more time in prison because of his inability to convince a judge that self-restraint on the computer can adequately replace judicially-imposed restraints.

Perhaps the safer bet here is on technology – that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights.

James Trusty

James Trusty is a Member at Ifrah Law, PLLC, where he leads the White Collar Practice Group. He was formerly Chief of the Department of Justice Organized Crime & Gang Section, and has spent 27 years serving as either a local or federal prosecutor. He also teaches criminal Justice courses at University of Maryland (Shady Grove). He welcomes comments from readers.


The Wrong Path: Involuntary Treatment and the Opioid Crisis

The use of involuntary commitment for drug addiction is expanding across the country, as desperate families seek help for their loved ones. But it is likely to make things worse.

In May, nine people committed to the Massachusetts Alcohol and Substance Abuse Center in Plymouth briefly walked out from the minimum-security facility. State authorities mounted a manhunt, using helicopters and dogs to apprehend these treatment “patients.”

The episode illustrates a dangerously-blurred line between substance use treatment and prison, based on a statute that allows for involuntary commitment of “alcoholics or substance abusers.”

In this case, the facilities housing criminals and patients were, in fact, one and the same.

The Massachusetts provision—Section 35—allows family members, doctors and police to petition a judge to civilly commit an individual with substance use disorder, where the condition creates a “likelihood of serious harm.”

Across the US, at least 33 states have similar statutes, though their precise parameters and level of deployment vary widely. In Massachusetts, an individual can be ordered to a course of treatment for up to 90 days.

The use of this mechanism has rapidly expanded as the opioid crisis has worsened, used primarily by desperate families seeking to get help for their loved ones.

In some of the over 8,000 Section 35 commitments a year in the state, the mechanism is being invoked by the very individual who is to be committed. This is because many see Section 35 as the only—or the most expedient and cheapest—way to access treatment.

That highlights the perversion of our drug treatment system.

It’s easier to voluntarily submit oneself to “involuntary” treatment, just to receive rapid and free access to assistance. This is despite the fact that the path is through a coercive, criminal justice-based structure, rather than through normal health care navigation channels.

Drug users committed under this provision have committed no crime. Treating them as criminals and depriving them of agency and liberty without adequate justification violates basic constitutional and ethical principles, as recent and previous litigation has posited. To make matters worse, these individuals are now subject to being physically restrained in treatment facilities, raising concerns about possible physical abuse.

The parallel provision in Massachusetts law applying to mental health cases, such as cases of suicide risk, imposes only a three-day commitment and requires authorization from a mental health clinician. In contrast, Section 35 authorizes a person to be held for up to 90 days and considers clinical judgment non-binding.

Further, the rules of evidence do not apply to Section 35 hearings. And, for police and physicians, “committing” individuals through Section 35 recently became easier because a standing order in some courts now allows those petitioners to simply fax the petition rather than appearing in person.

In the meantime, police, family support groups, and others are disseminating information and instructions on how to “section” SUD-affected individuals.

Leo Beletsky

As it turns out, coerced and involuntary treatment is actually less effective in terms of long-term substance use outcomes, and more dangerous in terms of overdose risk.

Mandated evaluation of overdose data in Massachusetts has found that people who were involuntarily committed were more than twice as likely to experience a fatal overdose as those who completed voluntary treatment. (See page 48-49 in this preliminary analysis.)

Though further research is needed to confirm these findings, there are several possible reasons for this. One is that recovery is much more likely when it is driven by internal motivation, not by coercion or force (i.e. the person must “want to change”).

Second, the state may actually route individuals to less evidence-driven programs on average (e.g. “detox”) than the kind of treatment accessed voluntarily (i.e. outpatient methadone or buprenorphine treatment).

Finally, those receiving care in outpatient settings may also receive services that help address underlying physical or mental health needs, which are often at the root of problematic substance use.

Another important concern is that mechanisms like Section 35 massively shift financial responsibility for substance use treatment from insurers directly to taxpayers. In Massachusetts, care provided under Section 35 has to be paid for by state public health dollars (or criminal justice dollars, depending on the location of commitment). In contrast, care received voluntarily is paid for by health insurers.

This is in addition to the fact that the gold standard for most people with opioid use disorder is outpatient treatment, which does not require “beds.” In other words, taxpayers are left holding the bag for something that is more costly, less effective, and more traumatizing. Misuse of those resources also raises questions about what alternative evidence-based investments could be made with those resources.

Despite these and other weighty concerns, policymakers in Massachusetts and elsewhere have looked to expand the scope of mechanisms like Section 35, because they seem them as a key tool in addressing the opioid crisis. The recent federal announcement of a public health emergency will likely accelerate this trend.

Though involuntary commitment represents an attractively decisive policy option, it is in fact the wrong solution to the crisis.

Elisabeth Ryan

Across Massachusetts and throughout the U.S., families are desperate for solutions, but increased reliance on Section 35 is not the way to go. Many individuals who are in crisis are unable or unwilling to access help. There are formidable logistical, financial, and other barriers to receiving on-demand treatment and related services.

The way services are currently rendered is also a barrier.

Many users do not want to engage in existing programs because those programs use unproven methods and approach care in ways that traumatizes and denigrates patients. Others may simply not be ready to enter treatment.

Currently, there is no alternative mechanism that would trigger timely assistance and intensive case management of the kind that is necessary to support people in crisis and their families in non-coercive, evidence-driven way.

Any conversation about reducing over-reliance on involuntary commitment provisions like Section 35 must include a discussion of such alternatives.

See also: Leo Beletsky, Law Enforcement, Drugs and the ‘Public Health’ Approach 

Leo Beletsky is an Associate Professor of Law and Health Sciences at Northeastern University. He’s on Twitter at @leobeletsky. Elisabeth Ryan is a Legal Fellow at the Center for Health Policy and Law, Northeastern University School of Law. She runs, on Twitter at @phlawwatch. They welcome comments from readers.