What Rape Reform Needs: More Convictions, Less Punishment

In the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed. But unless critical reforms are enacted to how we convict and punish rapists, just believing the victim won’t be enough, argues a Boston College Law School professor.

In what is being called the “Post-Weinstein era,” victims of sexual assault and harassment are finally being believed. This no doubt is overdue, but in the context of rape, believing the victim will not be enough.

Three reforms are essential to how we convict and punish rapists.

First, the way states currently define the crime of rape does not target the conduct of unwanted sex. In the United States, rape was initially defined by unwanted sex accompanied by an element of force. The proof of force was and continues to be a high bar to meet, usually requiring threats, physical violence, actual injury, or weapons.

In 2017, a California court reversed a rape conviction because the evidence showed that a group of four men “lured” a 15-year-old girl into a house, got her “falling-down drunk” and then penetrated her while she was unconscious.

There was no doubt over her lack of consent. But that was not relevant. The men’s actions did not fall in the definition of rape because the men did not use force during the intercourse. This is not an anomaly; 46 states currently define rape with this additional requirement of force.

But why is force part of the definition of rape?

Before the 1960s, all sex outside of marriage was criminalized in the offenses of adultery (defined as sex with a married person) or fornication (defined as sex by unmarried people). An element of force was needed to prevent a rape victim from unwittingly confessing to these crimes when reporting the rape against her.

This observation is not academic. As recently as 2013, a Norwegian tourist in Dubai was arrested and imprisoned for the crime of adultery after reporting that a man raped her.

Starting in the 1980s, 35 states reformed their laws to include a crime of rape that did not use force. Due to the fears that women would falsely accuse men (what will likely be an anachronistic belief from the Pre-Weinstein era), the states narrowly limited consent to be actionable only in codified power imbalances, such as a prison guard and prisoner, therapist and patient, or certain family members.

The first needed reform to the definition of the crime of rape, then, is to abandon the definitions of rape used by 42 states.

Rape should not be limited to unwanted sex when there is also force or only arising in specific contexts. Rather, all states should simply define rape as only eight currently do: sex without the consent of the other person. Full stop.

The Question of Liability

Second, unlike homicide and theft offenses, rape law has not benefited from having liability arise from more sophisticated mental states that define the crime. If a person drives a car into a crowd and kills someone, it is a tragedy if the driver had fallen asleep at the wheel. But the same death will be prosecuted as a murder if the driver had an intent to kill someone, disregarded the risk of death, or showed callous indifference over whether someone would be hurt.

Known as malice, this capacious mental state is effective in sorting out tragedies from murder.

In his book Missoula, Jon Krakauer interviewed a juror about her reasons for acquitting an accused rapist, which is a significant interview given that Montana is one of the eight states that define rape in its broadest reach as sex without the consent of another.

An important insight from this interview is that even when rape is defined broadly, the mens rea of knowledge requires proof that the defendant in fact knew he was having sex without his partner’s consent.

When framed in this manner, it is possible for the jury to both believe a woman’s testimony that she was raped but not have evidence that the defendant knew the victim was not consenting.

The second essential reform, then, is establishing a new crime of “rape by malice,” a crime that criminalizes both those who knew—or deliberately did not care to know—if their advances were consented to.

Unwanted sex arises from multiple motivations. A mens rea for rape should be flexible and responsive enough to criminalize as much unwanted sex as possible without criminalizing lawful or wanted sex. Other crimes such as homicide have expansive definitions to capture all killings made by the predators, the fools, and the careless. A new crime of rape by malice would do the same.

Rethink Rape Sentencing

Third, these proposed reforms to the redefinition of rape would lead to more convictions. But convicting more rapists under our current criminal justice system should not be welcomed. On paper, 19 states have respective maximum terms of 99 years, 100 years, and life sentences. And 12 states begin at 10 years.

Although only six states and the federal government even compile data on the number and lengths of sentences, where data is available, the range in actual sentences for rape was from eight to 30 years.

These numbers should be alarming. Whereas 40 percent of people convicted of all felonies will be punished with prison terms, about  90 percent of all rapists will receive a prison sentence, and a very lengthy one at that.

In the rush to condemn rapists, throwing people away in prison is a poor policy option that no other developed country follows. In 35 comparable countries, the vast majority impose prison terms that do not exceed five years. This short sentence does not at all communicate that the crime was not heinous, the offender not depraved, or the victim does not merit justice.

In the mass incarceration era, the U.S. makes prisoners suffer with long sentences and harsh conditions, but that only results in high recidivism rates of about 75 percent for all crimes.

Canada, by contrast, provides evidence-based treatment that has resulted in the recidivism rate for sex offenders to fall from 33.2 percent to 14.5 percent. For first-time sex offenders, recidivism rates fell from 27.5 percent to 8.8 percent.

If the goal is to reintegrate into society convicted rapists who will not reoffend, the third essential reform is to impose shorter sentences for rapists. It is shorter sentences and actual treatment that succeed over calls to simply lock them up.

The third reform of shorter sentences also will serve the victims by leading to more convictions. Forty years ago, states faced an analogous problem in figuring out the proper punishment for a driver who killed another. The crime could fit under manslaughter, but when the prosecutor charged this serious offense, the jurors balked and did not convict—knowing from common sense that manslaughter carried a lengthy prison sentence.

In response, state legislatures crafted the new offense of involuntary manslaughter, which reduced the punishment for the killing from 20 to two years. Not surprisingly, conviction rates increased.

Many recoil at light sentences for rapists, on the assumption that a light sentence is letting-off a very bad person. But it is a mistake to contend that the problem with mass incarceration starts and ends with drug offenders. Ninety-five percent of all prisoners leave prison.

We can no longer be outraged by crime and continue to ignore what happens to the criminal.

National surveys of crime victims lend support to the policy goals of rehabilitation over lengthier sentences; 82 percent support “increasing education and rehabilitation services for the people in the justice system.”

In this respect, reforms to rape sentences must be accompanied by a call for more effective criminal justice intervention rather than simply incarceration and more of it.

Kari Hong

Kari E. Hong

Instead of channeling outrage for the first rape, sentencing must also meaningfully seek to rehabilitate and prevent a second.

Kari E. Hong, an Assistant Professor at Boston College Law School, teaches immigration and criminal law. She founded a clinic representing non-citizens with criminal convictions in the Ninth Circuit, and has argued over 100 Ninth Circuit cases and 50 state criminal appeals. Her article A New Mens Rea For Rape: More Convictions and Less Punishment can be downloaded at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3060709. Readers’ comments are welcome.

from https://thecrimereport.org

Rehabilitation is Central to a Prison’s Mission—Except When It Isn’t

Private programs to tutor inmates have to contend with an environment that views volunteers with suspicion. The need to maintain security seems to outweigh all other considerations—including reform, writes a long-term resident of a Washington State penitentiary.

A small army of college students is helping prisoners pass high school equivalency exams and, where the opportunity exists, to earn college degrees.

These volunteers’ ranks are regularly replenished by recruitment from 30 different universities. They march under the banner of the Petey Greene Program.

For the last decade, Petey Greene has trained (typically) undergraduate and graduate students in pedagogical approaches and, thereafter, financed the volunteers’ trips to do service in correctional facilities across the Northeast.

In Pennsylvania, Petey Greene tutors work with young students who are earning their GEDs in juvenile detention facilities.

In Maryland’s sole women’s facility, volunteers work with prisoners in a study hall environment preparing them to pursue higher learning through the Goucher Prisoner Education Partnership.

In Rhode Island, tutors have individual study sessions with prisoners who are completing college courses through the Boston University Education Program.

There are 31 other correctional facilities where members of Petey Greene can be seen. It is an amazing accomplishment—especially since any organization working within a prison environment must contend with a security apparatus that views volunteers with suspicion.

In fact, these sentiments are ubiquitous throughout the correctional system.

For instance, following a large-scale drug and weapons raid in Pennsylvania’s Graterford Correctional Institution in 1996, prison administrators claimed it was necessary to reduce “the number of volunteers entering the prison for such programs as literacy tutoring, Bible study, and gardening.” [The Philadelphia Inquirer, “Struggle to Survive: View From Behind Bars,” August 12, 1996].

More recently, after drugs were discovered in a visiting room bathroom at Washington State’s Stafford Creek Correctional Center, volunteers of the Black Prisoners Caucus were suspended from entering the facility—notwithstanding the fact that countless visitors and staff had equal access to the location where the contraband was secreted.

Unfair as it may seem, prisoners have no right to interact with members of the community. More to the point, volunteers have no right to do service within correctional facilities.

This makes me wonder how Petey Greene has managed to go about its work so freely.

My personal experience with prison officials’ abhorrence for ceding control to anyone outside of the bureaucracy and the correctional system’s hyper-focus on maintaining institutional security convinces me that Petey Greene’s success took the patience of Job and the cunning of Machiavelli.

Understand this: Prison officials are given “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.”

On its face, such declarations are reasonable. But in practice, this “wide-ranging deference” creates a conflict between fostering reform and maintaining institutional security. Indeed, it ultimately undermines public safety by hamstringing outside efforts to rehabilitate prisoners and reduce recidivism.

The Facts on the Ground

The Washington Department of Corrections (WDOC) enables prisoners and others to submit pilot proposals to help reduce re-offending and increase success upon re-entry.

Unfortunately, though, the administrative compulsion to wield authority makes it next to impossible for non-WDOC programs to be established—let alone for them to maintain any real semblance of autonomy.

Take the Redemption Project which was created by WDOC prisoner (and my former cellmate) Anthony Powers. His vision was to develop a program that—according to the mission statement—would “repay society for the negative acts committed against it by helping to prevent others from repeating similar acts.”

Yet as the program transformed from a small group of prisoners who spoke to at-risk youth brought to Stafford Creek into a cognitive behavior therapy program for prisoners throughout the facility, Powers had to relinquish ever more independence to administrators to keep his program growing.

In the end, the Redemption Project became a fixture within WDOC. However, by then, it had transformed into nothing more than a means for prisoners to earn “good time” credit for their participation. As for Powers, prison administrators relegated him to the status of a volunteer for the very program that was his brain child.

The lesson: Compromising to get buy-in from correctional officials can be a slippery slope to ruining a program’s integrity.

The fact that a rehabilitative program is created and controlled by someone who is free does not deter official attempts at encroachment or usurpation. This truth was imparted to me as a member of the Prisoner Advisory Committee for the non-profit University Beyond Bars (UBB).

Since its inception, the UBB has devoted itself to providing opportunities for prisoners at Washington State Reformatory to pursue higher learning. Prison officials nevertheless sought to impose WDOC’s policy of prioritizing prisoners based upon their release dates, deportation and citizenship status, and their likelihood of reoffending.

To the UBB’s credit, the group’s director balked at erecting such a barrier to entry. To her dismay, prison officials then balked—for six years—before finally allowing her to bring donated computers into the facility for utilization by UBB students.

The lesson: When independent programs refuse to acquiesce to correctional prerogatives, there will be consequences.

Keeping the Faith

With these lessons in mind, let me return to the improbable success of Petey Greene. Based on its Program Viewbook the organization appears to have somehow avoided such trials and tribulations. Is it possible that the eight states and 34 prisons where the Petey Greene Program operates are outliers within my construct of the correctional system?

I highly doubt it.

The reality is that Petey Greene has long been plagued by its inability to collect the data that is necessary for receiving grants—difficulties that are due, in large part, to a lack of cooperation by correctional officials.

Were rehabilitation the paramount goal of corrections, prison officials would be falling all over themselves to ensure that Petey Greene was successful in enlarging the amount and type of data it collects about its programming.

Yet at the end of the day, the Supreme Court notes that “central to all other correctional goals is the institutional consideration of internal security within corrections facilities themselves.”

Sadly, assisting a non-profit collect the data required to establish that it is an evidence-based program is not a correctional priority—even if that very program furthers the penological interest in protecting the public from future harm.

Therefore, it remains to be seen if the patience of Job and cunning of Machiavelli that Petey Greene has exhibited thus far will enable the organization to meet its larger objective of measuring the program’s impact on recidivism rates.

I wish the organization the best.

Jeremiah Bourgeois

Jeremiah Bourgeois

But to those running Petey Greene, I urge you to heed this warning:

Compromising and being conciliatory to prison officials to keep a program growing can undermine its mission and destroy its integrity. Yet, remaining steadfast to one’s principles can likewise lead to frustration and grief.

So, you better tread carefully.

Jeremiah Bourgeois is a regular contributor to TCR, and an inmate in Washington State, where he has been serving a life sentence since the age of 14. He welcomes comments from readers.

from https://thecrimereport.org

Who Will Cover Tomorrow’s Crime Stories?

When the NYC websites Gothamist and DNAinfo were shuttered this month, it was a blow to local justice reporting. But it’s also a wakeup call to journalism schools and others to find new ways of filling the coverage gap, writes a NY journalism professor.

The closure of two New York City-based websites, Gothamist and DNAinfo, alarms anyone who cares about the future of local journalism.

But it also raises additional questions about the future of local crime reporting.

A few days before the two sites closed, I ran into a former colleague who reminded me of a story we covered together more than a decade ago. A dispute at an illegal gambling parlor in the Crown Heights neighborhood of Brooklyn, NY, led to a fatal shooting.

My colleague and I showed up the next day to find the betting shop still operating, and the winning numbers scrawled on the wall next to a guy who was preoccupied on the phone trying to field bets.

A mop bucket filled with blood sat in the corner. The dead man’s blood was still smeared on the floor. Business was so good the operators didn’t have time to clean up after the deceased.

We both had a laugh over the bucket of blood. It’s the kind of detail that we crime reporters lived for, chasing crime back when the tabloids and the New York Times were still dedicated to covering what happened in the city on a nightly basis.

There are those who might say that the “if it bleeds, it leads” mentality is best left in the past, a remnant of a booze-soaked newspaper era, a relic of a pre-social-media age best left to fade away in the era of smartphones and social media.

Who needs slightly damaged, slightly alcoholic guys and gals like us to be middlemen-and-women to grind out workaday truths when citizens can do it with an iPhone?

Of course the same detail that delighted me as a crime reporter left the residents on the block terrified. If someone can blow away some guy and then stroll away, what about us, they asked? What about my kids? And what about the gun? How did the gun get here, in this room? How many more guns do the criminals have than the cops?

How many white people get killed by guns purchased in a former Confederate state and smuggled into the heart of New York City? How many black people get killed? How many victims are rich? How many poor?

For many citizens, the only contact they have with their government is with the police. How could a guy be killed in a demonstrably illegal gambling den; and less than 24 hours later, how could that den still be humming before the blood could be mopped up and dumped out into the street?

How did the Buildings Department miss this? Was it the sexy corruption of kickbacks and bribes? Or, more likely, the pedestrian corruption of an overburdened bureaucracy incapable of realistically meeting its legal responsibilities?

I could go on, but I hope the point is clear. Crime is titillating, but it is also the only way we as a society have to talk about the fundamental questions animating human existence, namely: what it means to live in a just society.

What should be illegal in a free society? Who has to deal with the consequences of crime and why? Who watches the watchers? Are we as a society securing the liberty guaranteed by the Founding Fathers?

The crime beat rubs our faces in the way that what we casually think of as justice plays out in countless small ways in courtrooms and street corners all over this demented slaughterhouse of a democracy we call the United States of America.

Crime reporting was a passport to a world that largely remained uncovered by the major newspapers, and it was a way to see how people survive living in abject poverty, to see up close the consequences of inequality.

Who knows how many stories my colleagues and I stumbled on because we were trying to figure out who shot whom, and why, on some cold winter night.

The simple fact of reporters being there, with eyes on the cops at the scene, and their bosses, who know that someone is watching, can be a check on power.

Human beings, not the greatest specimens that nature has coughed into existence, will generally get away with what they are allowed to. Cops are not unique in this. The simple act of being present at these crime scenes is a deterrent on abuses of power.

With Gothamist and DNAinfo shuttered, it begs the question: what do we do now? What can be done to fill in the gaping holes in coverage left by their absence and the paucity of news coverage by newspapers here?

The short answer is, hell if I know.

If I had an answer to that I’d be filthy rich and not writing this op-ed. The slightly longer answer is that news agencies need to reassess what crime reporting can be. It is not just a blotter. It is a tableau to ask the lofty Big Questions in a small-bore, concrete way.

Schools that teach journalism need to cut their students loose to fill the gap created by the shuttering of DNAInfo and Gothamist. At the City University of New York (CUNY) Graduate School of Journalism, we have a paper that covers the South Bronx.

Similar projects should be vigorously supported in Washington, D.C., Chicago, L.A., and all the cities affected by the closing, as well as any place where there’s a school teaching journalism.

There is a corrosive nihilism at the beating heart of people turning their noses up at “local news.”

Just recently, a student at the school where I teach was talking about how robots can do what I and my fellow crime reporters did back at the turn of the century, when at least three reporters, sometimes more, were out in the streets at crime scenes trying to figure what the hell happened and why and what it all means.

Especially what it means for the real people swept up in their private tragedy, and what it means for all of us who live in the parallel universe of stability and order, a life free of buckets of blood, who like to go to sleep at night thinking we’re good and fair and just.

My friend, who warned me he was likely to be laid off as a result of the closures, said he had recently returned to the spot infamous for that bucket of blood. It’s a French bistro now. A sign of the “gentrification” rampant in the neighborhoods that used to be awash in crime.

It’s fashionable these days to think all the other diners could just use their iPhones to make sense of the chaos, institutional and intimate, going on in this city as they sat and ate.

Daryl Khan

Daryl Khan

But my colleague could have used his experience, streetwise skills – and reporter’s curiosity─to turn that chaos into compelling stories. But he’s now unemployed.

I’m not sure what the other diners were eating. But I asked my friend what he chose off the menu. He ordered the lamb burger, medium well.

Daryl Khan is a professor at the CUNY Graduate School of Journalism and the NYC bureau chief of JJIE, a juvenile justice website. He welcomes readers’ comments.

from https://thecrimereport.org

The New ‘Entrepreneurs’ Behind Today’s Punitive Immigration Policies

“Crimmigration” has become a shorthand term for the increasing overlap of the nation’s criminal justice and immigration control systems in the Trump era. It’s time to reexamine our assumptions about what motivates the current zeal to punish immigrants, writes a criminologist at John Jay College.

The term crimmigration was coined by law professor Juliet Stumpf in 2006, as a shorthand for the increasing overlap of the nation’s criminal justice and immigration control systems.

Other academics quickly took up the term, using it to describe the policies of the Obama administration as it brought immigration enforcement to unprecedented heights, earning President Obama the title “deporter-in-chief”.

The actions of the Trump administration have brought crimmigration into widespread use. It’s a useful term for the media and advocates struggling to describe one of the administration’s few first-year successes in fulfilling candidate Trump’s campaign promises: true to his word, Trump has established a system of punishment for immigrants, built upon the worst excesses of the criminal justice system.

To be sure, his predecessors laid the groundwork for this explicitly punitive approach, but Trump has quickly pushed immigration enforcement past its previous limits in any number of ways. It is more vicious than ever before, more vindictive, more arbitrary—but most importantly, it has comprehensively aligned enforcement policy and practice with the priorities of the president’s voter base and the institutional culture of the agencies involved: ICE (Immigration and Customs Enforcement) and CBP (Customs and Border Protection).

The how of Trump’s punitive immigration control system—its culture, its methods and practices, its constituencies—become clearer with each news item and investigative report. The why, on the other hand, remains largely opaque.

We know that greed and racism motivate this activity, at least in part: that in the background behind this unified front of nativist voters, anti-immigrant policy-makers, and overzealous field agents lie the interests of private prison corporations and local elected officials, particularly sheriffs. But wouldn’t it be naïve—or at least overreach the available evidence—to suggest that immigration enforcement as a whole is motivated by economic considerations?

If we want to investigate the reasons why American immigration policy is increasingly focused on punishing immigrants as criminals, we need to reexamine our assumptions about what constitutes “economic motivation.”

In a recent piece for the academic journal Theoretical Criminology, I proposed that we shift our thinking about the reasons why institutions and individuals involve themselves in immigration enforcement, to consider them as potential entrepreneurs in a punishment marketplace.

We generally think of entrepreneurs as economically motivated innovators: individuals with new ideas about products or services that could revolutionize a particular field—and ideally make the entrepreneur a profit.

A marketplace is where these innovations compete; where the products and services associated with them are bought and sold. It’s challenging to fit immigration enforcement into this formula, because **immigration control is supposed to be a public service: not the kind of service that is bought and sold, but the kind provided by government for the collective benefit of the governed.

Public services, however, can be privatized, and under the neoliberal philosophy of governance that dominates contemporary American policy-making, they increasingly are.

Neoliberalism is a tricky term, in part because it resists the reductive left/right logic of America’s polarized political discourse. A neoliberal approach to governance has much in common with the conservative worldview: both hold up the idea of the “free market” as the natural and best approach to organizing human society.

On the surface, the purpose of immigration control seems antithetical to these “free market” ideals. Doesn’t the American economy benefit from the labor competition and increased productivity that immigrant workers contribute?

Nearly all available evidence suggests that it does; but this question gets to the heart of immigration enforcement’s role as a “public service.”

Contrary to the anti-government sentiment that goes hand-in-hand with the valorization of “free markets” in conservative ideology, markets have always required government regulation to keep them “free.” Paradoxically, the most basic market intervention at government’s disposal is punishment: the consequences meted out to those who fail to respect the private property rights that make markets possible—criminals, in other words.

The Property-Based Rationale for Immigration Enforcement

Immigration enforcement fits neatly into this framework if we view citizenship as property rather than a fulfillment of the social contract—that is, something we own by virtue of who we are, as opposed to something we earn through our contributions to the community or society in which we live. If citizenship—and the rights of residence and membership that go with it—is property, then undocumented immigrants are criminal by definition: “illegal aliens” who have stolen the residency rights of citizenship from their rightful owners.

The “public service” of immigration enforcement is, in this interpretation, the protection of the property rights surrounding citizenship—the policing, in other words, of the boundaries of acceptable behavior in the citizenship marketplace.

The concept of “marketplace” used above requires us to accept that the buying, selling, and investing that go on in these spaces is not an exclusively economic activity, but an application of accumulative, “free market” principles to many kinds of potential benefits: power, security, “freedom”, rights, even physical and mental health.

To view this range of benefits as subject to “free market” competition, as in the contemporary conservative/neoliberal worldview, is to view their gain and loss as a zero-sum game. The rights associated with citizenship can’t be given to immigrants without loss to citizens; conversely, keeping those rights exclusive makes them all the more valuable to those who hold them.

What’s more, “regulatory structures” like federal immigration enforcement allow powerful groups and individuals—or punishment entrepreneurs—to “invest” in these benefits and reap a wide variety of returns.

Who are these entrepreneurs? The handful I put forward in my paper include New Jersey’s Kim Guadagno, a former federal prosecutor-turned Monmouth County Sheriff, whose investment in anti-immigrant rhetoric and a 287g immigration enforcement agreement led her to the state’s Lieutenant Governship, and an (ultimately unsuccessful) bid for the Governor’s mansion.

They include the principals of the Irwin County Detention Center in Georgia, whose investment in immigrant detention paid off handsomely, helped along by their insider knowledge of the correctional industry and their political connections.

The Punishment ‘Entrepreneurs’

But for every well-known punishment entrepreneur like Arizona’s former Maricopa County Sheriff Joe Arpaio, there are hundreds of sheriffs, correctional administrators, private prison investors, and exploitative employers of immigrant labor whose investments in the punitive treatment of immigrants have borne significant returns, particularly with the 2016 election of Donald Trump.

Equally important to recognizing this accumulation of benefits to the few that is the hallmark of “free market” logic, is recognizing that a great many of the voters who chose Trump for his anti-immigrant stance benefit from the harsh enforcement policies his administration has put into action.

These benefits may be largely psychological, and rooted in their exclusionary perspective on citizenship and membership rights. Supporters of Trump’s harsh immigration policies benefit from their relative security—their “freedom” from the fear of detention or deportation—and they benefit from the increasing invisibility of people they think of as “others,” and their relatively more exclusive use of public space.

They also benefit from the relative absence of these “others” from constitutionally protected public services like education and healthcare. And perhaps most of all, they benefit as consumers, as frightened immigrant laborers are more easily exploited, keeping the costs of many goods and services artificially low.

Those who would advocate for immigrant rights must reckon with the reality of these widely perceived benefits, and the worldview that makes them acceptable.

The radically neoliberal “free market” philosophy of contemporary American conservatism excuses the equally radical curtailment of empathy necessary for the dehumanizing immigration policies enacted by the Trump administration. What appears to many observers as deeply inhumane is for others the straightforwardly necessary protection of their real interests, and those of their families and children.

The work of advocating for humane and rational immigration policy in the contemporary context is nothing less than the steep challenge of culture change. The neoliberal/conservative worldview that sees the distribution of rights and benefits as a zero-sum game holds clear advantages for the entrepreneurs who are able to manipulate it to their advantage, and these privileged few will continue to promote this perspective as long as it serves their interests to do so.

Empathy must be taught and modeled across the cultural landscape in order for more humanist perspectives to take root. Culture change on this scale is a generational fight.

Daniel L. Stageman

Immigrant advocates working today need the courage today to work for victories tomorrow.

Editor’s Note: See also other TCR articles by Daniel Stageman examining local immigration enforcement. In Etowah County, ALFrederick County, Md.; and Orange County, Ca.; Read Stageman’s introduction to the series, “Where Will Trump’s Deportation Force Strike Hardest?” here.

Daniel L. Stageman, Ph.D., is Director of Research Operations at CUNY John Jay College of Criminal Justice. He is also a criminologist whose scholarship focuses on making sense of America’s punitive approach to immigrants. He can be contacted at dstageman@)jjay.cuny.edu. Readers’ comments are welcome.

from https://thecrimereport.org

Why Meek Mill is Not Alone

The recent sentencing of the Philadelphia rap artist over a probation violation underlines why America’s system of community supervision needs to change, argue two prominent justice reformers.

 The recent sentencing of Philadelphia rap artist Meek Mill to two-to-four years in a Pennsylvania prison for a probation violation that occurred 11 years after his original offense should cause policymakers and advocates alike to reexamine what “mass supervision” tools such as probation and parole do to exacerbate the problem of mass incarceration in America.

The answer is: plenty.

That’s why we signed a statement in August calling for the end of mass probation and parole supervision in America.

Glen Martin

Glenn E. Martin

The truth is that Meek Mill’s story is the rule, not the exception.

He will be locked up and become another statistic in America’s massive prison and jail system —but not because he was tried, convicted and sentenced for a crime. He will be put in a cage because he violated a condition of probation, a sentencing measure that’s often seen as a gift of compassion and the opportunity for a second chance.

That misguided view helps explain why almost five million people are on probation and parole in America today, up more than three-fold since 1980. There are more than twice as many people under community corrections supervision in America as are incarcerated.

An appalling one out of every 53 adults in America is under parole or probation supervision. As with every other area of our criminal justice system, the racial disparities are alarming. One in four young black males is under correctional control in the U.S. Most of them are on probation and parole.

These individuals suffer a partial loss of liberty due to being under government supervision. They are at risk of greater loss of liberty due to potential violations, many of which are innocuous and could be cured with measures that fall far short of incarceration.

The average person carries 15 conditions as part of their probation. A violation of any of them, like missing an appointment, failing a drug test, associating with another person with a felony conviction, or failing to pay a fine, can and often does result in incarceration. Because of this, probation and parole—founded as alternatives to incarceration—have become punitive systems that actually drive incarceration.

Vincent Schiraldi

Vincent Schiraldi

The result? Almost half of all the entrants into prison last year were incarcerated for a probation or parole violation.

It might come as a surprise to some, but our call for ending mass supervision is now mainstream thought among the very people who run America’s community corrections agencies.

The statement we signed in August calls community corrections “a significant contributor to mass incarceration.” Its signers believe that “it is possible to both significantly reduce the footprint of probation and parole and improve outcomes and public safety.”

This is not radical thinking, as demonstrated by the fact that every major probation and parole association in America also signed the statement, along with an additional 35 current and former probation and parole administrators.

Advocates and policy makers who care about reducing incarceration need to look in the mirror on this issue. Despite what are sometimes good intentions, Meek Mill’s case demonstrates that unnecessary supervision all too often leads to unnecessary incarceration.

Yet, in our efforts to eliminate mass incarceration, far too little attention is paid to mass supervision. Now is the time to change that.

Glenn E. Martin is the founder and president of JustLeadershipUSA, a national, member-driven advocacy organization that seeks to cut the U.S. correctional population in half by 2030 through empowering people who have been directly impacted by the criminal justice system to drive criminal justice reform.

Vincent N. Schiraldi , is a senior research scientist and adjunct professor at the Columbia University Justice Lab, previously served as a Senior Adviser to the New York City Mayor’s Office of Criminal Justice, Commissioner of the NYC Department of Probation, and Director of the District of Columbia’s Department of Youth Rehabilitation Services. They welcome readers’ comments.

from https://thecrimereport.org

Is Mass Murder Exceptionally American?

According to an Idaho historian and commentator, events like the recent mass shootings in Texas and Las Vegas and the 2015 massacre at a Charleston, S.C., church belong to a litany of similar tragedies occurring around the world—including countries where there are strict gun licensing laws.

The recent tragedies in Las Vegas and Sutherland Springs, Texas, are causing many Americans to wonder, “Is this kind of mass murder peculiarly American?”

The facts suggest otherwise.

There is nothing exceptionally American about mass murder or even firearms mass murder —even though some of the rhetoric accompanying these tragic events portrays the U.S. as singularly plagued by them.

For starters: the FBI defines mass murder as four or more dead (including the killer) in one event, in one location. [FBI, Serial Murder: Multidisciplinary Perspectives for Investigators, 8]

Of course, we are excluding the genocidal mass murders that largely define the 20th Century (for example, the Turkish extermination of the Armenians; the Holocaust; Rwanda; among far too many).

The types of mass murder referred to here are crimes not committed by or with the acquiescence of governments.

Former President Barack Obama, for example, declared after the 2015 shooting at a historic black church in Charleston, S.C., that left nine people dead and three injured “this type of mass violence does not happen in other advanced countries.”

He went on to say, “It does not happen with this kind of frequency.”

The implication was that the U.S.’s relatively laissez faire approach to gun control is at fault.

According to Politifact, the first sentence was incorrect, noting that between 2000 and 2014 there were 23 incidents of mass shootings in ten other countries besides the United States; though, it added, the second sentence was “not quite as wrong as the first claim.”

The more commonly accepted measure of crime is events per 100,000 population or dead per 100,000. Even then, the U.S. is only fourth on the list of mass-murder deaths per 100,000 people (0.15) compared to #3, Finland (0.34), #2, Norway (1.3), and #1, Switzerland (1.7).

Mass murders (as well as the far common ordinary murders) are disproportionately committed by persons with severe mental illness problems, whose actions are clearly a consequence of those problems—and the U.S. is not alone in suffering from the consequences of their actions, whether they involve firearms or not.

Christian Dornier

Christian Dornier. Photo via Wikipedia

A few examples over the last several decades:

Christian Dornier, 31, under treatment for “nervous depression,” murdered 14 people in three villages in eastern France. He was later found innocent by reason of insanity.

Eric Borel, 16, murdered his family with a hammer and a baseball bat, and then went on a shooting rampage in the nearby town of Cuers, France, in September 1995. He killed 12 in total beside himself.

In March 2002, Richard Durn murdered eight local city officials and wounded nineteen others in Nanterre, a suburb of Paris. Durn had a master’s degree in political science and “a long history of psychological problems.”

After his arrest, he was described as “calm but largely incoherent,” then leaped to his death through a window.

In April 2002, 19-year old Robert Steinhaeuser went into a school in Erfurt, Germany, and murdered 18 people before killing himself.

In April of 2011, Wellington Menezes de Oliveira went into a school in Rio De Janeiro, Brazil, murdering 12 children, before killing himself. His suicide note was unclear, but a police officer described de Oliveira as a “hallucinating person.”

Later the same month, Tristan van der Vlis went into a shopping mall in Alphen aan der Rijn, the Netherlands, and shot six people to death. The Netherlands has very strict gun licensing laws; nonetheless van der Vlis had a gun license in spite of a history of brief mental illness hospitalizations and suicide attempts.

Countries with more restrictive gun control laws also have non-firearm mass murders, such as the five stabbed to death in Calgary, Alberta, in 2013. Matthew de Grood was found not criminally responsible because of “a mental disorder.

Australia is sometimes given as an example of the effectiveness of gun control for preventing mass murders such as the 1996 Port Arthur massacre which killed 35 people and wounded 23.

But Australia still has mass murders after that gun control law, such as the mass stabbing that killed eight siblings in Queensland, Australia, and blunt object mass murders such as one that killed five people in Sydney in 2009.

The mental illness often present in these tragedies, schizophrenia, is a genetic disease affecting about 1 percent of the population.

Obviously, not all mass murders fit into the mental illness category.

Some are acts of terrorism. A few fit no existing pattern. The recent mass murder in Las Vegas, for example, seems to be a Black Swan crime: a multimillionaire who engaged in meticulous planning with devastating loss of life (although lower than at least four other U.S. mass murders in the last three decades).

Eight terrorist mass murder attacks in Paris in 2016 resulted in 130 deaths, although only four of the incidents qualify as mass murders (15 dead at Le Carillion and Le Petit Cambodge restaurants, with firearms; five dead at Café Bonne Biere; 90 dead at the Bataclan concert hall, from firearms and grenades).

For many people, it is a surprise to find out that there are many mass murders committed with weapons other than firearms.

USA Today gathered data on mass murders (“defined [as] killing four or more victims”) committed in the U.S. from 2006 through 2010.

“A third of mass murders didn’t involve guns at all. In 15 incidents, the victims died in a fire. In 20 others, the killer used a knife or a blunt object,” the newspaper reported.

Mass murders by arson are also a problem in other countries:

Childers, Queensland’s Palace Backpackers Hostel was intentionally burned in 2000, killing 15.

The 2011 Quakers Hill Nursing Home fire killed 11, set by a nurse after police questioned him about drug abuse.

Other weapons besides guns and fire are also used. In the last few years, there have been multiple motor vehicle mass murders in Europe and Australia (84 murdered with a truck in Nice, France, 12 in Berlin, Germany, with a truck, three with a SUV, one by stabbing in London, five with a truck in Stockholm, 13 with a truck in Barcelona, Spain.

cramer

Clayton Cramer

While all of these were terrorist mass murders, others have been mental health-related (six murdered with car in Melbourne, Australia).

While our rates of firearms mass murder are higher than most other developed nations, we are not at the top of the list.

Including non-firearms mass murders might move us further down the list.

Clayton Cramer teaches history at College of Western Idaho. His ninth book, Lock, Stock, and Barrel, will be published by Praeger Press in February 2018. Readers’ comments are welcome.

from https://thecrimereport.org

Prison Story: When ‘Extraction Squad’ Comes for You

An inmate at Pelican Bay State prison in California recounts being shackled, beaten with nightsticks and Tasered because he neglected to hand over a pack of coffee. The humiliation, he writes in an essay for The Beat Within prison writers’ workshop, was nearly as awful as the pain.

As I stared up at the ceiling of my cell, my body still aching from the brutal beating I received the day before, unable to move more than the few inches or even scratch the unrelenting itch t at the tip of my nose, due to being chained to a concrete slab, completely naked in five-point restraints, my mind drifted off to the events that led up to this particular brand of humiliation.

It was a Tuesday morning and breakfast was close by. I could hear the squeaking wheels from the food cart echoing outside the pod door. I had been up since 4 am, a normal routine ever since arriving to the Security Housing Unit (SHU) in Pelican Bay, and as I drank my lukewarm coffee out of a milk carton, I watched a few minutes of the morning news.

North Korea was at it again and George W. Bush was sounding more and more like John Wayne. Once the coffee had kicked in, I jumped right into my daily workout routine of 500 ten-count burpees straight, trying desperately to leave as many negative thoughts and emotions as I possibly could in that puddle of sweat on my cell floor—while at the same time preparing myself for the everyday possibility of the wrong cell door being popped open, intentional or accidental, and the term “survival of the fittest” becoming way too real.

Imagine how it feels to know at some point your cell door was going to be popped open and you would be forced to fight another prisoner sometimes two, usually with weapons, in a gladiator style fight for your life, while the guards sit in gun booths, watching and wagering money on which prisoner would win.

Having to live each and every day on the edge of chaos and insanity, forcing you to work out as if your life depended on it.

Because at some point it definitely will.

Once I finished exercising, I took a bird bath using a milk carton as a shower head, then cleaned my cell and prepared myself for breakfast, as I watched more of the morning news.

Then the pod door opened and the food cart rolled. The guard yelled, “Show time! Bright lights on!” as he carried the trays to each cell, passing them through the slot on each cell door. Once the last tray is passed out, you officially have five minutes to eat before the guards are back to collect the trays, whether you’re finished eating or not.

On each tray there’s a single serving pack of coffee that must be turned in with your tray, whether you decide to drink the coffee or not. The reason for this, according to prison officials, is because the packs are lined with aluminum in order to keep the coffee fresh.

For security reasons prisoners are not allowed to keep the packs in their cells. In fact, they aren’t allowed to have anything in its original packaging. Everything has to be placed in paper bags and paper cups. All of this is done in the name of institutional security, but unfortunately, I forgot to turn in the coffee pack with my tray.

It was an honest mistake on my part, but apparently the guard didn’t think so.

Rather than just asking me for the coffee pack, he chose instead to threaten me, calling me names and telling me how he was going to make me wish that I wasn’t alive if I didn’t hand over the coffee pack.

He was taking things far beyond the normal everyday humiliation that comes with just being in the SHU, talking to me in such a way that I could no longer swallow my pride. How many times can you swallow your pride before you run out of pride to swallow?

I told the guard that if he really felt that way, then why not just open the door and come and get it himself. But, of course, he didn’t. They never do, choosing instead to summon the Extraction Squad and have me “cell extracted,” or better yet, forcibly removed from my cell.

pelican bay

Aerial Shot of Pelican Bay prison. Photo by Jelson25 via Wikipedia.

About 20 minutes later, I heard the Extraction Squad approaching, marching into the pod in paramilitary style formation, each of them wearing crash helmets, face and body shields, and carrying night sticks, Tasers and 37 mm block guns. Without saying a word, they popped open the tray slot on my cell door and shot me on the top of my forehead at point blank range with the block gun, while at the same time shooting me with the Taser gun.

Prongs were embedded in my chest with volts of electricity so intense that my body locked up, to the point that not even my mouth could move causing me to black out, and when I regained consciousness I was hog tied. I was handcuffed behind my back, legs shackled together, and a chain running from my hands to my feet, forcing my hands and feet to meet and separating my shoulder in the process.

It was causing pain so excruciating that I blacked out once again, regaining consciousness as I was being dragged down a flight of stairs, head bouncing up and down off each step like a basketball being dribbled.

As they dragged me through a corridor before ramming my head into a door frame and knocking me out cold and then being Tasered awake by 50.000 volts of prongs. I was then wheeled naked to what’s known as VCU (The Violence Control Unit), which is like a prison within a prison within a prison, before finally being moved to the infamous “Butt Naked Cells,” a kind of torture chamber used for prisoners who dared to think they had any rights that Pelican Bay was bound to respect.

It was here that I was chained naked to a bed in what’s known as five-point restraints: both hands, both feet, and a chain across my neck. There wasn’t much else in the cell. No mattress, no bedding, no clothing.

Nothing whatsoever to shield me from the humiliation that comes with being chained up this way.

I was stripped of all my clothing and my dignity, all over a single serving pack of coffee.

As I lay there, staring up at the ceiling, trying desperately to take my mind off the growing need to use the bathroom, there was a toilet right next to me, but I was unable to move more than a few inches due to the restraints.

So, it might as well have been in another country. As I began to come to terms with the fact that it was only a matter of time before I would be forced to use the bathroom on myself, these feelings of shame and humiliation began to sweep over me.

It was then that I realized just how painful one’s pride can be.

“Jesse J” is an inmate at Pelican Bay State Prison in California, the state’s only “supermax” penal institution, located in Del Norte County. The Crime Report is grateful to the San Francisco-based prison writers’ and artists’ workshop operated by The Beat Within for permission to publish his essay. Readers’ comments are welcome.

from https://thecrimereport.org

Fewer Prisoners, Less Crime? The Elusive Promise of Algorithms

Early evidence suggests some risk assessment tools offer promise in rationalizing decisions on granting bail without racial bias. But we still need to monitor how judges actually use the algorithms, says a Boston attorney.

Next Monday morning, visit an urban criminal courthouse. Find a seat on a bench, and then watch the call of the arraignment list.

Files will be shuffled. Cases will be called. Knots of lawyers will enter the well of the court and mutter recriminations and excuses. When a case consumes more than two minutes you will see unmistakable signals of impatience from the bench.

Pleas will be entered. Dazed, manacled prisoners—almost all of them young men of color—will have their bails set and their next dates scheduled.

Some of the accused will be released; some will be detained, and stepped back into the cells.

You won’t leave the courthouse thinking that this is a process that needs more dehumanization.

But a substantial number of criminal justice reformers have argued that if the situation of young men facing charges is to be improved, it will be through reducing each accused person who comes before the court to a predictive score that employs mathematically derived algorithms which weigh only risk.

This system of portraiture, known as risk assessment tools, is claimed to simultaneously reduce pretrial detentions, pretrial crime, and failures to appear in court—or at least that was the claim during a euphoric period when the data revolution first poked its head up in the criminal justice system.

We can have fewer prisoners and less crime. It would be, the argument went, a win/win: a silver bullet that offers liberals reduced incarceration rates and conservatives a whopping cost cut.

These confident predictions came under assault pretty quickly. Prosecutors—represented, for example, by Eric Sidall here in The Crime Report—marshaled tales of judges (“The algorithm made me do it!”) who released detainees who then committed blood-curdling crimes.

Other voices raised fears about the danger that risk assessment tools derived from criminal data trails that are saturated with racial bias will themselves aggravate already racially disparate impacts.

ProPublica series analyzed the startling racial biases the authors claim were built into one widely used proprietary instrument. Bernard Harcourt of Columbia University argued that “risk” has become a proxy for race.

A 2016 study by Jennifer Skeem and Christopher Lowenkamp dismissed Harcourt’s warnings as “rhetoric,” but found that on the level of particular factors (such as the criminal history factors) the racial disparities are substantial.

Meanwhile, a variety of risk assessment tools have proliferated: Some are simple checklists; some are elaborate “machine learning” algorithms; some offer transparent calculations; others are proprietary “black boxes.”

Whether or not the challenge of developing a race-neutral risk assessment tool from the race-saturated raw materials we have available can ever be met is an argument I am not statistician enough to join.

But early practical experience seems to show that some efforts, such as the Public Safety Assessment instrument, developed by the Laura and John Arnold Foundation and widely adopted, do offer a measure of promise in rationalizing bail decision-making at arraignments without aggravating bias (anyway, on particular measurements of impact).

The Public Safety Assessment (PSA), developed relatively transparently, aims to be an objective procedure that could encourage timid judges to separate the less dangerous from the more dangerous, and to send the less dangerous home under community-based supervision.

At least, this practical experience seems to show that in certain Kentucky jurisdictions where (with a substantial push from the Kentucky legislature) PSA has been operationalized, the hoped-for safety results have been produced—and with no discernible increase in racial disparity in outcomes.

Unfortunately, the same practical experience also shows that those jurisdictions are predominately white and rural, and that there are other Kentucky jurisdictions, predominately minority and urban, where judges have been—despite the legislature’s efforts—gradually moving away from using PSA.

These latter jurisdictions are not producing the same pattern of results.

The judges are usually described as substituting “instinct” or “intuition” for the algorithm. The implication is that they are either simply mobilizing their personal racial stereotypes and biases, or reverting to a primitive traditional system of prophesying risk by opening beasts and fowl and reading their entrails, or crooning to wax idols over fires.

As Malcolm M. Feeley and Jonathan Simon predicted in a 2012 article for Berkeley Law, past decades have seen a paradigm shift in academic and policy circles, and “the language of probability and risk increasingly replaces earlier discourse of diagnosis and retributive punishment.”

A fashion for risk assessment tools was to be expected, they wrote, as everyone tried to “target offenders as an aggregate in place of traditional techniques for individualizing or creating equities.”

But the judges at the sharp end of the system whom you will observe on your courthouse expedition don’t operate in a scholarly laboratory.

They have other goals to pursue besides optimizing their risk-prediction compliance rate, and those goals exert constant, steady pressure on release decision-making.

Some of these “goals” are distasteful. A judge who worships the great God, Docket, and believes the folk maxim that “Nobody pleads from the street” will set high bails to extort quick guilty pleas and pare down his or her room list.

Another judge, otherwise unemployable, who needs re-election or re-nomination, will think that the bare possibility that some guy with a low predictive risk score whom he has just released could show up on the front page tomorrow, arrested for a grisly murder, inexorably points to detention as the safe road to continued life on the public payroll.

They are just trying to get through their days.

But the judges are subject to other pressures that most of us hope they will respect.

For example, judges are expected to promote legitimacy and trust in the law.

It isn’t so easy to resist the pull of “individualizing “and “diagnostic” imperatives when you confront people one at a time.

Somehow, “My husband was detained, so he lost his job, and our family was destroyed, but after all, a metronome did it, it was nothing personal” doesn’t seem to be a narrative that will strengthen community respect for the courts.

Rigorously applying the algorithm may cut the error rate in half, from two in six to one in six, but one in six are still Russian roulette odds, and the community knows that if you play Russian roulette all morning (and every morning) and with the whole arraignment list, lots of people get shot.

No judge can forget this community audience, even if the “community” is limited to the judge’s courtroom work group. It is fine for a judge to know whether the re-offense rate for pretrial releases in a particular risk category is eight in ten, but to the judges, their retail decisions seem to be less about finding the real aggregated rate than about whether this guy is one of the eight or one of the two.

Embedded in this challenge is the fact that you can make two distinct errors in dealing with difference.

First, you can take situations that are alike, and treat them as if they are different: detain an African-American defendant and let an identical white defendant go.

Second, you can take things that are very different and treat them as if they are the same: Detain two men with identical scores, and ignore the fact that one of the two has a new job, a young family, a serious illness, and an aggressive treatment program.

A risk assessment instrument at least seems to promise a solution to the first problem: Everyone with the same score can get the same bail.

But it could be that this apparent objectivity simply finesses the question. An arrest record, after all, is an index of the detainee’s activities, but it also a measure of police behavior. If you live in an aggressively policed neighborhood your history may be the same as your white counterpart’s, but your scores can be very different.

And risk assessment approaches are extremely unwieldy when it comes to confronting the second problem. A disciplined sticking-to-the-score requires blinding yourself to a wide range of unconsidered factors that might not be influential in many cases, but could very well be terrifically salient in this one.

This tension between the frontline judge and the backroom programmer is a permanent feature of criminal justice life. The suggested solutions to the dissonance range from effectively eliminating the judges by stripping them of discretion in applying the Risk Assessment scores to eliminating the algorithms themselves.

But the judges aren’t going away, and the algorithms aren’t going away either.

As more cautious commentators seem to recognize, the problem of the judges and the algorithms is simply one more example of the familiar problem of workers and their tools.

If the workers don’t pick up the tools it might be the fault of the workers, but it might also be the fault of the design of the tools.

And it’s more likely that the fault does not lie in either the workers or the tools exclusively but in the relationship between the workers, the tools, and the work. A hammer isn’t very good at driving screws; a screw-driver is very bad at driving nails; some work will require screws, other work, nails.

If you are going to discuss these elements, it usually makes most sense to discuss them together, and from the perspectives of everyone involved.

The work that the workers and their tools are trying to accomplish here is providing safety—safety for everyone: for communities, accused citizens, cops on the streets. A look at the work of safety experts in other fields such as industry, aviation, and medicine provides us with some new directions.

To begin with, those safety experts would argue that this problem can never be permanently “fixed” by weighing aggregate outputs and then tinkering with the assessment tool and extorting perfect compliance from workers. Any “fix” we install will be under immediate attack from its environment.

Among the things that the Kentucky experience indicates is that in courts, as elsewhere, “covert work rules”, workarounds, and “informal drift” will always develop, no matter what the formal requirements imposed from above try to require.

The workers at the sharp end will put aside the tool when it interferes with their perception of what the work requires. Deviations won’t be huge at first; they will be small modifications. But they will quickly become normal.

And today’s small deviation will provide the starting point for tomorrow’s.

What the criminal justice system currently lacks—but can build—is the capacity for discussing why these departures seemed like good ideas. Why did the judge zig, when the risk assessment tool said he or she should have zagged? Was the judge right this time?

Developing an understanding of the roots of these choices can be (as safety and quality experts going back to W. Edwards Deming would argue) a key weapon in avoiding future mistakes.

We can never know whether a “false positive” detention decision was an error, because we can never prove that the detainee if released would not have offended. But we can know that the decision was a “variation” and track its sources. Was this a “special cause variation” traceable to the aberrant personality of a particular judge? (God knows, they’re out there.)

Or was it a “common cause variation” a natural result of the system (and the tools) that we have been employing?

This is the kind of analysis that programs like the Sentinel Events Initiative demonstration projects about to be launched by the National Institute of Justice and the Bureau of Justice Assistance can begin to offer. The SEI program, due to begin January 1, with technical assistance from the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School, will explore the local development of non-blaming, all-stakeholders, reviews of events (not of individual performances) with the goal of enhancing “forward-looking accountability” in 20-25 volunteer jurisdictions.

The “thick data” that illuminates the tension between the algorithm and the judge can be generated. The judges who have to make the decisions, the programmers who have to refine the tools, the sheriff who holds the detained, the probation officer who supervises the released, and the community that has to trust both the process and the results can all be included.

james doyle

James Doyle

We can mobilize a feedback loop that delivers more than algorithms simply “leaning in” to listen to themselves.

What we need here is not a search for a “silver bullet,” but a commitment to an ongoing practice of critically addressing the hard work of living in the world and making it safe.

James Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He has advised in the development of the Sentinel Events Initiative of the National Institute of Justice. The opinions expressed here are his own. He welcomes readers’ comments.

from https://thecrimereport.org

Elections 2017: Beginning of the End of Willie Horton Politics?

Democrats’ victories in Virginia and New Jersey this week seemed to represent a clear rejection by voters of law-and-order, nativist views of their opponents, says the director of a crime research group. But it’s not yet clear whether the surge of “penal populism” that influenced national politics in previous decades has fizzled out.

Ed Gillespie sacrificed his future as a rising politician on the national scene when he embraced the Trump/Bannon political playbook in this year’s Virginia gubernatorial race.

Long regarded as a centrist Republican, he resorted to hot-button charges that painted his opponent, Democrat Ralph Northam, as an immigrant-hugging, soft-on-pedophilia wuss.

Virginia voters couldn’t have made their response clearer. Northam soundly defeated Gillespie with 53.9 percent of the vote on November 7.

Meanwhile, in New Jersey, Lt. Governor Kim Guadagno lost to Phil Murphy, a Goldman Sachs alum, after running a negative campaign that borrowed the guilt-by-association approach polished to a dark art by Lee Atwater, the campaign manager of the first George Bush in his victorious 1988 campaign against Michael Dukakis.

Horton

From Willie Horton ‘Attack Ad’ used in 1988 campaign. Photo courtesy Wikipedia

Politico New Jersey said her television ad claiming Murphy would “have the backs of deranged murderers” was “reminiscent of George H.W. Bush’s infamous Willie Horton ad.”

Horton committed armed robbery and rape while on a weekend furlough from a Massachusetts prison. Campaign ads with the photo of Horton, an African American, attempted to associate Dukakis’ liberalism with being soft on crime.

Atwater was said to have told associates, “by the time we’re finished, they’re going to wonder whether Willie Horton is Dukakis’ running mate.”

The rejection of Willie Horton tactics extended to the mayor’s race in Jersey City, where Ravi Bhalla overcame a campaign that flirted with racism. There were flyers with his photo captioned “Don’t Let Terrorists Take Over Our Town.” Further down the ballot, mailers charged that two school board candidates in Edison, NJ were spearheading a Chinese/Indian “political takeover”—with proposals such as developing cricket fields in local school grounds.

That tactic similarly failed to defeat Jingwei Shi and Falguni Patel.

For the anti-Trump forces, the 2018 midterm elections may still represent an uphill struggle, but the notable failures of the “Willie Horton tactics” attempted in some of this year’s campaigns offer encouragement to those battling the “tough on crime” rhetoric that helped boost Donald Trump and many of his allies into office last year.

Trump’s self-style description of himself as “the law and order candidate,” and his spurious claims that the nation was in the midst of a crime wave, soon followed by Attorney General Jeff Sessions’ efforts to reverse the previous administration’s more lenient approach to drug sentencing, have left criminal justice reformers fearing that a resurgence in penal populism could damage what appeared to be a growing bipartisan consensus about getting “smart on crime.”

The Rise of Penal Populism

Penal populism, according to Oxford University criminologist Julian V. Roberts, embodied a trend—first exemplified in the 1988 presidential campaign—of candidates gaining political capital by stoking fears of crime among the public, tapping their anger and their punitive instincts toward those who commit crimes.

It was an approach used by both Democrats and Republicans in their bid for votes.

From 1994—the year that the “tough on crime” Violent Crime Control and Law Enforcement Act was signed into law by President Bill Clinton—until 1997, crime was the number-one social concern cited by Americans in the annual Gallup Poll.

Political rhetoric and media depictions of violent crimes had given the impression that our streets had become a battle zone. Yet Americans’ actual fear of crime in their local neighborhood had peaked back in 1981, declining thereafter to an all-time low in 2017.

Phil Murphy

Photo courtesy Phil Murphy campaign.

And just 22 percent of Americans now say that someone in their household was a crime victim in the last 12 months, the lowest proportion since 2001.

The actual decline in crime rates, coupled with reduced fears about crime, has created a political opening over the past decade for rethinking some of the misguided crime control policies embraced in prior decades.

From coast to coast, state policy makers have enacted new measures to address drug crimes from a public health and harm-reduction perspective, eliminating many mandatory-minimum sentencing laws, and increasing judicial discretion to consider more effective and humane penalties for people charged with criminal offenses across the board.

At the same time, effective crime control strategies in a few urban areas are reducing incarceration rates in both local jails and state prisons. Since 1996, a 55 percent reduction in New York City’s use of both local jail and state prison beds was accomplished, while at the same time the city was becoming the safest in America, with serious crime declining by 58 percent.

According to John Pratt and Michelle Miao, however, penal populism in the 1990s set the stage for the flowering of a more “free-flowing political populism” in recent years.

They trace the emergence of a “new kind of victimhood”—the perceived vulnerability of the state itself to “mass immigration.” Indeed, Trump’s populist rhetoric has constructed the “criminal alien” as the new Willie Horton, while the MS-13 gang has emerged as a reincarnation of the 1994 “super-predator” threat.

Yet every credible research study indicates that immigrants are far more law-abiding than our own citizens.

One wants to believe that Tuesday’s off-year election results—especially in Virginia and New Jersey–augur well for the continuation of pragmatic criminal justice reform efforts.

Could it be that the resounding defeats of Ed Gillespie and Kim Guadagno signal that our urban/suburban voters are rejecting the populist hype about a mass immigration crime wave?

Is the shrill claim that, “They’re bringing in drugs. They’re bringing crime. They’re rapists…” losing its mesmerizing hold on our body politic?

Judy Greene

Judy Greene

For the benefit not just of Democrats, but of all Americans who want justice reform, it’s something to hope for.

Judy Greene is Director of Justice Strategies, a non-partisan policy research group that works on both criminal justice and immigration issues. She welcomes comments from readers.

from https://thecrimereport.org

Texas Cops Forge Different Approach to Policing Mentally Ill

Clinicians and cops in three cities team up to divert troubled individuals towards medical treatment instead of jail. A podcast by a North Texas police officer reports on a model program he says could work anywhere in the county.

An extraordinary effort is underway in three Texas cities to proactively police the mentally ill.

The Behavioral Intervention Unit (BIU) in the cities of Hurst, Euless and Bedford, in the Dallas-Fort Worth metropolitan region, is based on a modified Crisis Intervention Team program developed about a decade ago by local mental health coordinator Ken Bennett and the Hurst Police Department, which sought better integration of mental health clinicians and police.

The Behavior Intervention Unit builds on that by deploying teams of clinicians and cops who patrol each weekday, seeking out those with mental illness to intervene before there is a crisis.

You can hear the unit in action in a special episode of the biweekly Quality Policing podcast, which I produce with Prof. Peter Moskos of the John Jay College of Criminal Justice.

The BIU addresses a problem faced by law enforcement throughout the United States: As mental health funding has been cut and cut, not only have police become the first responders to mental illness in America, but jails have become our asylums.

As communities seek to divert people from jail to the mental health system, they increasingly find that there are simply no beds available in the mental hospitals. So, in a nation without mental health resources and a strong desire to divert the mentally ill from jail, the question becomes, “Divert to where?”

See also: “Proactive Policing Credited With Crime Reductions” (TCR Nov 9 2017)

Our Quality Policing podcasts cover issues of good policing, spurred by news developments around the U.S.

Officer Casey Sanders interacts with Floyd, a 64-year-old homeless man, at a Euless park. Photo by Nick Selby.

In this episode, we meet Floyd, a suicidal and homeless 64-year old man with broken ribs, as he is being helped by the BIU. We hear how Floyd is transported to the county hospital for mental health observation, patched up physically, and we follow his journey towards homeless outreach and help.

Soon after, we meet Colt Remington—yes, that’s his real name—an officer who, after talking down a suicidal man holding a gun to his own head, and convincing the man to put the gun down and get some help, was disciplined by his supervisor for not shooting the suicidal man.

This continuum—from the absolute wrong way to the absolute right way—is representative of how “mental health policing” is done in America. Sadly, there are many more police agencies on the left side of that continuum (the reactive, “we’re-cops-not-social-workers” side).

The episode spells out why.

It explains how this is a bipartisan mess. Neither Democrat nor Republican administrations have done “better” at coping with the problem of mental illness. Every president since Lyndon Baines Johnson has cut funding to mental health care in America.

The results should concern all of us: There are ten times more seriously ill patients in America’s prisons and jails than in state and community hospitals.

But in Texas, we can point to examples that can be models for policing nationwide.

The story of this story began about six months ago, when I began speaking with Ken Bennett, the mental health coordinator for the three Northeast Tarrant County suburban police departments.

I had been looking to highlight the wide variation in police department responses to mental illness. Most agencies are still reactive. While many have embraced CIT training, very few have displayed the boldness of the Hurst/Euless/Bedford plan.

Particularly impressive was the proactive determination shown by the three cities and their leaders in establishing the program.

As I say in the podcast, there was no political cost to not implementing the Behavior Intervention Unit’s program.

There were several inspirations for the program. First, I recognized that the Sandra Bland Act, signed into law by Texas Gov. Greg Abbott in June, could have a profound impact on how the U.S. handles mental illness.

The law requires jailers who learn of a patient’s mental illness to transport that patient to a mental health facility. But in writing about it—in the National Review and, along with Texas Mental Health Peace Officer Colt Remington in USA Today—I realized we needed to hear the people, to humanize the story.

Ken Bennett arranged for permission for me to ride out with and record the BIU teams in October, 2017.

One of the first people we encountered was Tarrant County Sheriff Bill Waybourn.

“Our jail population this morning was 4,100; and 25 percent of those people are mental health patients,” he said. “They’re on mental health meds.”

Additional research added weight to our program. The National Alliance on Mental Illness should be everyone’s first step when researching mental illness in America. I spoke with current and former hospital staff at John Peter Smith Hospital near Fort Worth, as well as police, EMTs, and mental health attorneys.

Texas media have also done some great reporting. One example: Bud Kennedy’s work in the Fort Worth Star-Telegram .

But it was on the street that the challenges to police officers became clear.

“The first thing is to be very non-threatening, to establish that you’re there to help them,” Euless Officer Casey Sanders told us.

“You want to establish some rapport, where you can change their behavior, and that all begins with empathy.”

Unlike most clinicians, Ken Bennett has negotiated, face-to-face, with armed suicidal people. When he spotted Floyd in J.A. Carr Park, they had a long conversation before Floyd admitted being suicidal.

Floyd didn’t ask for help. Actually, his most pressing problem was broken ribs: Floyd could barely breathe and was wheezing. Bennett noticed a hospital band on Floyd’s wrist, and suggested the BIU transport Floyd back to John Peter Smith Hospital for treatment before going to homeless outreach.

Then Sanders recognized Floyd—Floyd’s appearance has changed over the past decade. Sanders’ face lit up. He was genuinely happy to see Floyd.

And I saw Sanders exude the empathy he had described. Even when he patted down Floyd for weapons, the officer continued a light-hearted chit-chat that Floyd responded to with openness and trust.

I thought about the will-power it took for Bennett to envision and create a job and a strategy no one asked him to create; to convince the chiefs of police, the city council, the mayors and the lawyers of three cities to try something so new you can’t even agree on how to measure success.

And I also thought about the risks that all those officials took in moving forward at all.

There was no political penalty for sticking with traditional policing. They built the mental health group anyway.

“This can be a very emotional job,” said Bennett. “Every call you deal with is someone who’s mentally unstable.

“We can’t save everyone. But if we do our jobs and we’re proactive, we’ll probably save more than if we just took a reactive approach.”

If you’d like to hear more, I invite you to listen to Sheriff Waybourn, Ken Bennett and the officers on the teams. Our podcast is available for download here, and also available on iTunes, Stitcher and other podcast outlets.

Selby

Nick Selby

Nick Selby is a Texas police detective who investigates computer fraud and child exploitation. Also a cyber-security incident responder, he is co-author of Cyber Survival Manual: From Identity Theft to The Digital Apocalypse and Everything in Between; In Context: Understanding Police Killings of Unarmed Civilians; and Blackhatonomics: Understanding the Economics of Cybercrime; and technical editor of Investigating Internet Crimes: An Introduction to Solving Crimes in Cyberspace. He adapted his podcast script for a feature article for the Dallas Morning News, which ran on Nov. 5, 2017.

He welcomes comments from readers.

from https://thecrimereport.org