The ‘Environmental Factor’: When Criminals Are Also Victims

In a 1968 murder case, the defendant claimed systemic racism and poverty were mitigating circumstances in his crime. An appeals court rejected the argument, but is the relationship between the “environment” and criminal behavior worth examining today?

On June 5, 1968, at about 3 a.m., Murdock Benjamin and a couple of friends were in a hamburger joint in Washington D.C. when a group of six walked in to order takeout—five men, all U.S. Marines in uniform, and a woman. All were white.

A few minutes later, as Benjamin and his friends were leaving the restaurant, there was a confrontation by the door. At trial, each side said the other started it, and the details remained unresolved.

Benjamin was already outside when he heard one of the Marines say, “Get out, you black bastards.”

Benjamin reentered, pulled his gun, and started shooting. He killed two of the Marines, and seriously wounded another and the woman. He was charged with murder.

At trial, Benjamin’s lawyer admitted there was blood on his client’s hands. But he argued that Benjamin wasn’t criminally responsible for what he’d done. He had a mental condition born of the deprivations he endured as a poor black person, the lawyer argued, adding that his experiences primed him to explode the moment he heard that racial slur.

The defense was a long shot because Benjamin, by all accounts, was a sane young man. But Benjamin’s mind was in the grip of the ugly social forces that had shaped his life, according to his lawyer. After all, racism and poverty might not make a man hallucinate, but they still inflict real harm on both body and brain.

The trial judge, Gerhard Gesell, didn’t buy it.

“We are not concerned with a question of whether or not a man had a rotten social background,” Gesell said. “We are concerned with the question of his criminal responsibility.”

The jury convicted him of second degree murder. He was sentenced to 20 years to life in prison. He was about 20 years old.

But did Benjamin’s defense have any validity?

A closer look at Benjamin’s background suggests how someone’s environment carves out their destiny.

He was raised in the Watts neighborhood of Los Angeles. His father was a construction worker and his mother stayed home to take care of him and his siblings—he had 12. They were poor, but there was always enough for clothes and food. But then his father left the family, and life grew more difficult.

In the summer of 1965, a few years after his father left, Benjamin was one of hundreds of people arrested and jailed following what has been called the Watts Rebellion—one of many uprisings by black Americans in the 1960s that were rooted in systemic oppression. Watts’ residents suffered bad policing, bad schools and few opportunities for work, according to one contemporary report.

Benjamin recalled the experience as the start of his political awakening.

“It was like striking out at something, not caring whether you win or lose, as long as you strike back at it—because it had struck at you long enough,” Benjamin said in a 1970 interview with Malaika Lumumba for an oral history of the civil rights movement.

“They’d blew up four young girls in Alabama not more than two years prior to that,” he added. “[During Watts] we were only paying them back for the slavery and sufferings of our people.”

When he got out of jail, Benjamin found work and moved in activist circles, but his politics wavered. He had a new, promising job as an apprentice machinist, and he wanted to make good; but a year after he was hired, the company laid off all the black and Mexican apprentices.

“I realized that I couldn‘t get away from racism within the United States,” he told Lumumba. “I’d sold my people out by thinking that I could ever make it within the system.”

After he lost the job, Benjamin dealt drugs for a couple of months to get by, before he soured on it. He figured he was helping the white man, hurting his community. He was arrested for a couple of other crimes he said he didn’t commit.

Then Martin Luther King Jr. was assassinated, in April, 1968. Benjamin had now come to believe a race war was coming—a belief his lawyer would later use to argue that Benjamin had a “mental condition.”

Shortly after King’s assassination, he decided to leave Los Angeles to join the Poor People’s March on Washington. A few weeks later, on the other side of the country, Benjamin shot four people.

Benjamin’s lawyers appealed his conviction, arguing that the trial judge shouldn’t have excluded the broader context of Benjamin’s life—his “rotten social background,” as one lawyer termed it—from the question of his guilt.

Shouldn’t a person’s circumstances affect responsibility for his or her actions?

David Bazelon, one of the appeals court judges, struggled so earnestly to answer that question that he made the case famous in academic circles. Bazelon began by conceding that it probably wasn’t fair to convict Murdock Benjamin, because forces beyond his control were responsible for the shooting, more than Benjamin himself.

But if Benjamin wasn’t responsible for his actions, that only made things more complicated, because he wasn’t insane and he was likely still dangerous.

Society doesn’t know what to do with someone who’s sane, violent and, hypothetically, innocent.

Sane people can’t be locked up in an asylum, harm demands a response, and innocence precludes prison. Bazelon’s ruling offered up “social reconstruction.

Systemic equality, he suggested, might prevent more violence than any punishment.

Bazelon seemed to want to convict America itself.

But the other two judges outvoted Bazelon. In that 1973 appeal, they reaffirmed Benjamin’s conviction and kept him in prison.

“The ultimate responsibility for [the marines’] deaths reaches far beyond [Murdock Benjamin],” agreed Judge Carl McGowan.

But he added: “As courts, however, we administer a system of justice which is limited in its reach.”

In the decades since, judges have continued to wave off “environmental” defenses like Benjamin’s, often with good reason.

Lawyers sometimes cooked up farcical excuses for their clients, like Super Bowl Sunday Syndrome, trying to spin an individual’s misconduct into a mass phenomenon in which they had no control.

Judges are probably also wary of arguments grounded in society’s inequities because they would be so powerful.

Black people aren’t the only ones overrepresented in the justice system. The poor, the young, and the queer—among many other demographic groups—are all disproportionately likely to be arrested for a crime.

Researchers have also found that people who have a certain genetic attribute, and who also suffered abuse as children, are more than nine times more likely than the average person to behave criminally.

Benjamin’s case highlights the tension at the core of modern American justice.

Courts try people, not inequality. Judges reliably exclude big-picture phenomena—like genetics, or the ravages of white supremacy—from the question of someone’s guilt. They only consider it at sentencing, where the standard for evidence is lower.

But even then, it seldom makes much of a difference. A 2012 study polled judges on how they’d sentence a man, diagnosed with psychopathy, who committed terrible violence. Overall, the judges ruled the man’s mental condition made him less responsible for his crime.

But they also ruled that the same mental condition made him more of a menace.

FT Green

F.T. Green

“Psychopathy may make the defendant less morally culpable, but it increases his future dangerousness to society,” one of the judges explained to the researchers. “In my mind, these factors balance out.”

Still, the question from Murdock Benjamin’s case still hovers on the edges of every courtroom today.

Should the victims of racism be held solely responsible for its inevitable consequences?

F.T. Green is a reporter in Toronto. His website is ftgreen.xyz. He welcomes comments from readers.

from https://thecrimereport.org

The ‘Womb-to-Prison Pipeline’

Justice reformers focus on preventing schools from employing disciplinary approaches that send troubled youths into the justice system. But a Washington State inmate argues that for many young black males, the so-called school-to-prison pipeline begins a lot earlier.

It is interesting how researchers conceive phrases and terms that capture their findings in readily accessible ways that resonate in the mind of the public. They capture a phenomenon that makes their conclusions marketable to policymakers and officials—even if the findings later prove to be (at best) misleading, or (worse yet) erroneous.

Take the bogus “superpredator theory.” Officials saw fit to prosecute me as if I were an adult when this theory was in its infancy and sentenced me to life without parole when I was only 14 years old, under the fiction that I was irredeemable and beyond reform.

Today, I often read about a “School-to-Prison Pipeline.”

Most often, it is cited by policymakers and proponents of both education and criminal justice reform. For those unfamiliar with the research behind the theory, here is a brief summary.

The necessary materials and ingredients for building a School-to-Prison Pipeline are black boys, bureaucrats, and overt and implicit bias. With this, one can create environments within schools where the “students who are most in need of support and attention from the public education system are most harmed by its impersonal mechanisms,” according to Breaking the Chains, The School-to-Prison Pipeline, Implicit Bias, and Racial Trauma.

For instance, a black male student with an intellectual, emotional or physical disability “has a 33.8 percent chance of being suspended in a given school year compared to only a 16.2 percent chance for similarly situated white males,” explain the authors of Breaking the Chains.

The authors also say that “black boys are seen as older and less innocent” than their White same age peers. So, when “black students do indeed misbehave in class, teachers [are] more likely to see these actions as the product of a pattern when compared with White students,” and this “negative stereotyping of a black student’s disobedience has been associated with the black escalation effect.”

This educational experience, or escalation effect, according to this line of thinking, pushes many young black males out of public schools and into the juvenile justice system and eventually— if they are as unlucky as me—into the penitentiary.

This is the School-to-Prison Pipeline theory. I do not doubt any of these findings. However, while the outflow of the pipeline is apparent, I disagree with where it actually begins.

Allow me to present the “Womb-to-Prison Pipeline,” and highlight the missing materials and ingredients for funneling Black boys to state institutions.

The essential components for building this section of the pipeline are black children who were exposed, in utero, to drugs and alcohol, maternal stress, and malnourishment; then come to suffer traumatic experiences at the hands of caretakers who abuse and neglect them.

The presence of any of these conditions increases the risk for delinquency and serious youth violence, according to the U.S. Department of Justice.

Other factors identified by the Department of Justice as having a cumulative effect on the risk for delinquency and violence are: a family history of criminal behavior and substance abuse; family management problems; family conflict; extreme economic deprivation; exposure to media portrayals of violence; community disorganization; and low intelligence, hyperactivity, and attention-deficit disorders.

These are the adverse experiences that define the lives of countless black children who enter the public-school system. They learned to disassociate or be aggressive in order to survive their traumatic experiences and environments. Then, as explained in Breaking the Chains, those behaviors become “maladaptive in the school setting” and are “misinterpreted by school staff” as evidence of “ill-intentioned misbehavior.”

Through this lens, one can see that our problems began in the home rather than in a school setting. Teachers are then left to corral and educate what have become, in essence, defective units.

Few liberals would dare to express such a thing.

For good reason, they are cowed by those who would cry that such a view is both politically incorrect and vacuous because it gives credence to the notion that black folks are responsible for everything that has befallen them throughout American history: From slavery—as evidenced by literature trumpeting the complicity of West African rulers—to a Bell Curve implying that the educational deficits of blacks stem from their immutable characteristics as opposed to America’s history of racism.

It is well-nigh heresy for a black prisoner to believe that the home front was the proximate cause of our predicament. I know this from personal experience.

In the past, I have provoked consternation and irritation by expressing these sentiments during meetings of the Black Prisoners’ Caucus. How dare I cite our shortcomings during a discussion on mass incarceration or miseducation—especially in the presence of bright-eyed white guests from the community who are our allies and potential advocates.

The implicit message is that we must always blame the system. This is the script to follow if one wishes to be accepted by their brethren and not be labelled a fool or sellout by those who are “woke.”

As a result, I have long since refrained from attending these gatherings. My absence enables the group to collectively absolve the childhood caretakers whose abuse, neglect and ignorance greased the walls of the School-to-Prison Pipeline.

To be clear: I believe that mass incarceration is a product of historical antecedents, contemporary policies and practices, and overt and implicit bias against African Americans by those with the power to subjugate us. Furthermore, I accept the notion that reforming the public school system can ameliorate (or at least, stop facilitating) mass incarceration.

Yet the power that lords over us initially is parental authority, and the School-to-Prison Pipeline seems to ignore this reality.

It is the abuse of this authority that leaves Black children at the mercy of the system, whether that system endeavors to educate or incarcerate. If reducing mass incarceration is the objective, the focus should be on repairing the Womb-to-School section of the pipeline to prison.

Then again, I have to remember that a catchy phrase like School-to-Prison Pipeline is simply a marketing strategy.

Jeremiah Bourgois

Jeremiah Bourgeois

At the end of the day, if ignoring the man in the mirror and absolving our kin of culpability furthers criminal justice reform, so be it. I have no problem falling back and letting others articulate the raison d’etre for narrowing the pipeline to the penitentiary.

I am willing to do whatever is necessary to reduce the likelihood that my nephew finds himself in prison with me.

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 is currently petitioning for release from the Stafford Creek Corrections Center. Readers who wish to support him are invited to sign up here.

from https://thecrimereport.org

Will Marijuana Legalization Have a ‘Gateway’ Effect?

It doesn’t take an excess of optimism to conclude that soon the entire continent of North America may be weed-friendly. It may pave the way for a closer look at other now-illicit drugs that can be used for therapeutic purposes.

Marijuana’s reputation as a gateway drug—a drug whose use almost inevitably leads to the use of other, stronger, harder drugs—has been largely (though not completely) discredited.

But will the legalization of marijuana lead to the legalization of other, stronger, harder drugs? If it does, is that a good or bad thing?

It doesn’t take an excess of optimism to conclude that soon the entire continent of North America may be weed-friendly.

On Nov. 6, Michigan voters approved a ballot proposal legalizing recreational marijuana, and it has already gone into partial effect. In Michigan, it is now legal to grow up to 12 marijuana plants at home, to possess up to 10 ounces of marijuana, and to carry (though not smoke in public) 2.5 ounces if you are at least 21 years old.

The state (which is mostly opposed to marijuana legalization) has until Dec. 6, 2019 “to form regulations and make applications available for recreational marijuana businesses,” and up to another year to expand sales beyond existing medical marijuana dispensaries.

Two more states (Missouri and Utah) voted to permit medical marijuana only. That makes 32 medical marijuana states, 10 of which also permit recreational use.

More than one-fifth of the U.S. population—about 73 million people—now live in one of the 10 states (plus the District of Columbia) where recreational marijuana use is now legal to some extent.

That’s more than twice the population of Canada (35 million), where recreational marijuana became legal on Oct. 17. Canada was only the second nation in the world, after Uruguay, to enact such legislation.

Despite predictions of calamity, the major problem so far has been marijuana shortages.

The number of people in North America who can enjoy legal recreational marijuana may have doubled Oct. 31 when Mexico’s Supreme Court ruled that “the effects caused by marijuana do not justify an absolute prohibition on its consumption.”

That in effect decriminalized marijuana. (Under the country’s legal system, once the Supreme Court reaches a similar decision in five separate cases, the standard set by the rulings applies to the country’s entire court system.)

So Mexico’s 119 million citizens (the adults anyway) can now light up, vape, eat or otherwise engage in marijuana consumption. That doesn’t make it legal for you to sell it to or buy it from anyone.

A senator in Mexico has introduced legislation to officially confirm the ruling making recreational marijuana legal. According to World Politics Review, Mexico’s new President Andres Manuel Lopez Obrador favors legalization, and plans to hold a public referendum on how and whether to legalize marijuana within his first three years in office.

With the U.S. likely to formalize the laissez-faire attitude towards state legalization at the federal level—in June, President Donald Trump said he, would “probably” sign the STATES (Strengthening the Tenth Amendment Through Entrusting States) Act—North America could in effect become the first continent with legal recreational marijuana.

If marijuana becomes completely legal to the south and the north of us, the fear of missing out on those legal marijuana tax revenues may be enough to turn the tide.

On the other hand, there are still a couple of big stumbling blocks, not least of which is the U.S. Senate—which may find it politically unacceptable to make marijuana use more acceptable in any way. That also includes the regulatory agencies (the Drug Enforcement Administration, the Food and Drug Administration) which seem more interested in criminalizing kratom than legalizing cannabis.

Elsewhere, South Africa, Georgia (the Caucasus), China, and several other Asian nations also are considering legalization, mostly for medical marijuana. Even the United Nations’ World Health Organization is reviewing marijuana’s status as a controlled substance.

Mexico may go even further. There is a movement afoot to also legalize the medical use of opium to relieve pain and to further hurt the illegal drug traffickers who profit off opium-derived heroin.

Opium was brought to the U.S. by Chinese workers in the mid-19th century, then demonized during the anti-Chinese wave of the late 1870s-early 1880s, and made illegal by the Harrison Narcotics Act of 1914. Subsequently—in a pattern repeated following other attempts to prohibit or restrict substances—American addicts resorted to stronger opiates such as codeine, morphine, and heroin.

In a contest over the dangers of opium vs weed, opium is the clear winner. Despite marijuana’s Schedule 1 placement, it’s not a deadly drug. No one has ever died directly due to an overdose of marijuana alone. Opium itself is not as deadly as other opioids, such as heroin and fentanyl.

Then again, there’s even a movement to legalize and regulate heroin so that it will be of a known strength and purity (not laced with fentanyl) that is traced to marijuana’s legalization success. And fentanyl is legal for some conditions.

Opium isn’t the only drug receiving similar consideration. So are so-called “psychedelic”, hallucinogenic, or psychotropic drugs.

Oregon is considering a voters ballot initiative to legalize therapeutic uses of psilocybin, the ingredient in psychedelic or “magic” mushrooms. Like marijuana, it is illegal Schedule 1 drugs under the US federal Controlled Substances Act. Likewise, it and the party drug MDMA (Ecstasy) have been celebrated as “breakthrough therapy” for depression, post-traumatic stress disorder, and other psychological illnesses.

Digital tech workers and entrepreneurs in Silicon Valley have touted the benefits of microdosing LSD—small doses that produce no hallucinogenic effects—for creativity and treatment of depression although it, too, is a Schedule 1 drug. A placebo-controlled study is now underway in London.

Ibogaine and other psychedelics for the treatment—maybe cure—of addiction is similarly stymied by being confined to Schedule 1. Proponents—who have been around since the 1960s—say that one “trip” can remove addiction and the desire to use drugs again. Ibogaine is only legal in New Zealand, Brazil, and South Africa.

Meanwhile, kratom—an herbal substance related to coffee—is facing renewed criminalization by the FDA and DEA. Heretofore its status has been unclear. It is marketed as a “dietary supplement”, a class of product that “can go to market without any safety, purity, or quality testing by the FDA”.

Some users and scientists say kratom has opioid-like pain relief properties that are safer (no respiratory depression) than opioids. They want it regulated as a dietary supplement, not banned. It is is not mentioned at all by the United Nations Drug Conventions or US law, though it is controlled in several European Union and Asian nations, as well as Australia and New Zealand.

Prohibition doesn’t stop drug use. It only prevents the research evidence of their therapeutic effects that drug legalization opponents claim is lacking, as well as making the substances less safe and turning otherwise law-abiding citizens into criminals. It also can be politically motivated.

Stephen Bitsoli

Stephen Bitsoli

While many people use marijuana because they enjoy it, not for its medical benefits, that doesn’t mean it doesn’t have medical benefits, or that such enjoyment is necessarily a bad thing.

Marijuana legalization is long overdue, as is serious research into and consideration of other pharmacological solutions. If that legalization is a bellwether for more scientific and apolitical research, that is a good thing.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction treatment, politics, history, and related matters for several blogs. A lifelong avid reader, he loves learning and sharing what he’s learned. Readers’ comments are welcome.

from https://thecrimereport.org

Will Marijuana Legalization Have a ‘Gateway’ Effect?

It doesn’t take an excess of optimism to conclude that soon the entire continent of North America may be weed-friendly. This could pave the way for a closer look at other now-illicit drugs that can be used for therapeutic purposes.

Marijuana’s reputation as a gateway drug—a drug whose use almost inevitably leads to the use of other, stronger, harder drugs—has been largely (though not completely) discredited.

But will the legalization of marijuana lead to the legalization of other, stronger, harder drugs? If it does, is that a good or bad thing?

It doesn’t take an excess of optimism to conclude that soon the entire continent of North America may be weed-friendly.

On Nov. 6, Michigan voters approved a ballot proposal legalizing recreational marijuana, and it has already gone into partial effect. In Michigan, it is now legal to grow up to 12 marijuana plants at home, to possess up to 10 ounces of marijuana, and to carry (though not smoke in public) 2.5 ounces if you are at least 21 years old.

The state (which is mostly opposed to marijuana legalization) has until Dec. 6, 2019 “to form regulations and make applications available for recreational marijuana businesses,” and up to another year to expand sales beyond existing medical marijuana dispensaries.

Two more states (Missouri and Utah) voted to permit medical marijuana only. That makes 32 medical marijuana states, 10 of which also permit recreational use.

More than one-fifth of the U.S. population—about 73 million people—now live in one of the 10 states (plus the District of Columbia) where recreational marijuana use is now legal to some extent.

That’s more than twice the population of Canada (35 million), where recreational marijuana became legal on Oct. 17. Canada was only the second nation in the world, after Uruguay, to enact such legislation.

Despite predictions of calamity, the major problem so far has been marijuana shortages.

The number of people in North America who can enjoy legal recreational marijuana may have doubled Oct. 31 when Mexico’s Supreme Court ruled that “the effects caused by marijuana do not justify an absolute prohibition on its consumption.”

That in effect decriminalized marijuana. (Under the country’s legal system, once the Supreme Court reaches a similar decision in five separate cases, the standard set by the rulings applies to the country’s entire court system.)

So Mexico’s 119 million citizens (the adults anyway) can now light up, vape, eat or otherwise engage in marijuana consumption. That doesn’t make it legal for you to sell it to or buy it from anyone.

A senator in Mexico has introduced legislation to officially confirm the ruling making recreational marijuana legal. According to World Politics Review, Mexico’s new President Andres Manuel Lopez Obrador favors legalization, and plans to hold a public referendum on how and whether to legalize marijuana within his first three years in office.

With the U.S. likely to formalize the laissez-faire attitude towards state legalization at the federal level—in June, President Donald Trump said he, would “probably” sign the STATES (Strengthening the Tenth Amendment Through Entrusting States) Act—North America could in effect become the first continent with legal recreational marijuana.

If marijuana becomes completely legal to the south and the north of us, the fear of missing out on those legal marijuana tax revenues may be enough to turn the tide.

On the other hand, there are still a couple of big stumbling blocks, not least of which is the U.S. Senate—which may find it politically unacceptable to make marijuana use more acceptable in any way. That also includes the regulatory agencies (the Drug Enforcement Administration, the Food and Drug Administration) which seem more interested in criminalizing kratom than legalizing cannabis.

Elsewhere, South Africa, Georgia (the Caucasus), China, and several other Asian nations also are considering legalization, mostly for medical marijuana. Even the United Nations’ World Health Organization is reviewing marijuana’s status as a controlled substance.

Mexico may go even further. There is a movement afoot to also legalize the medical use of opium to relieve pain and to further hurt the illegal drug traffickers who profit off opium-derived heroin.

Opium was brought to the U.S. by Chinese workers in the mid-19th century, then demonized during the anti-Chinese wave of the late 1870s-early 1880s, and made illegal by the Harrison Narcotics Act of 1914. Subsequently—in a pattern repeated following other attempts to prohibit or restrict substances—American addicts resorted to stronger opiates such as codeine, morphine, and heroin.

In a contest over the dangers of opium vs weed, opium is the clear winner. Despite marijuana’s Schedule 1 placement, it’s not a deadly drug. No one has ever died directly due to an overdose of marijuana alone. Opium itself is not as deadly as other opioids, such as heroin and fentanyl.

Then again, there’s even a movement to legalize and regulate heroin so that it will be of a known strength and purity (not laced with fentanyl) that is traced to marijuana’s legalization success. And fentanyl is legal for some conditions.

Opium isn’t the only drug receiving similar consideration. So are so-called “psychedelic”, hallucinogenic, or psychotropic drugs.

Oregon is considering a voters ballot initiative to legalize therapeutic uses of psilocybin, the ingredient in psychedelic or “magic” mushrooms. Like marijuana, it is illegal Schedule 1 drugs under the US federal Controlled Substances Act. Likewise, it and the party drug MDMA (Ecstasy) have been celebrated as “breakthrough therapy” for depression, post-traumatic stress disorder, and other psychological illnesses.

Digital tech workers and entrepreneurs in Silicon Valley have touted the benefits of microdosing LSD—small doses that produce no hallucinogenic effects—for creativity and treatment of depression although it, too, is a Schedule 1 drug. A placebo-controlled study is now underway in London.

Ibogaine and other psychedelics for the treatment—maybe cure—of addiction is similarly stymied by being confined to Schedule 1. Proponents—who have been around since the 1960s—say that one “trip” can remove addiction and the desire to use drugs again. Ibogaine is only legal in New Zealand, Brazil, and South Africa.

Meanwhile, kratom—an herbal substance related to coffee—is facing renewed criminalization by the FDA and DEA. Heretofore its status has been unclear. It is marketed as a “dietary supplement”, a class of product that “can go to market without any safety, purity, or quality testing by the FDA”.

Some users and scientists say kratom has opioid-like pain relief properties that are safer (no respiratory depression) than opioids. They want it regulated as a dietary supplement, not banned. It is is not mentioned at all by the United Nations Drug Conventions or US law, though it is controlled in several European Union and Asian nations, as well as Australia and New Zealand.

Prohibition doesn’t stop drug use. It only prevents the research evidence of their therapeutic effects that drug legalization opponents claim is lacking, as well as making the substances less safe and turning otherwise law-abiding citizens into criminals. It also can be politically motivated.

Stephen Bitsoli

Stephen Bitsoli

While many people use marijuana because they enjoy it, not for its medical benefits, that doesn’t mean it doesn’t have medical benefits, or that such enjoyment is necessarily a bad thing.

Marijuana legalization is long overdue, as is serious research into and consideration of other pharmacological solutions. If that legalization is a bellwether for more scientific and apolitical research, that is a good thing.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction treatment, politics, history, and related matters for several blogs. A lifelong avid reader, he loves learning and sharing what he’s learned. Readers’ comments are welcome.

from https://thecrimereport.org

Don’t Make the First Step Act the Only Step in Justice Reform

Legislators and advocates need to begin focusing on the real challenges of fixing our broken justice system. That includes addressing the criminogenic disorders and behaviors that drive crime and recidivism, writes Texas scholar William Kelly.

The Senate’s approval of the First Step bill raises a fundamental question about the future prospects for reform in the American criminal justice system.

By now, the need for justice reform has become part of a bipartisan consensus that includes advocates, celebrities and legislators at both the federal and state levels.

We routinely hear about the need to address mass incarceration, use of lethal force by the police, racial bias in prosecution and sentencing, the lack of resources for indigent defense, recidivism and the revolving door, and the enormous cost of running the world’s largest correctional system.

The advocacy and legislative efforts are well supported by public opinion.

The vast majority of Americans (over 90 percent) support criminal justice reform. Nearly three-quarters believe prison populations should be reduced, and over 70 percent would vote for a candidate advocating for the elimination of mandatory sentences.  Most (84 percent) believe individuals with mental illness belong in mental health treatment, not prison.

On one level this is all good news.  There is widespread recognition that American criminal justice is in need of fixing and there is some movement to begin repairs.

However, I see two major problems with current efforts at criminal justice reform.

The first is that there is no consensus about what reform means.  It seems that one common denominator is the reduction of prison populations.  There has been a decline of nearly 7 percent in the number of prisoners since the peak in 2009.

But, I would ask, to what end?  What are we trying to accomplish other than reductions in numbers – prisoners and dollars.

Many states have gotten their feet wet by modestly reducing their prison populations, a response to the recession of the late 2000s and the fiscal pressure it put on state governments?

What is happening to those that we don’t incarcerate?

The last time we made substantial changes to the criminal justice system, we had a unifying rallying cry. It was the simple mantra “tough on crime.”

That led to a number of catchy slogans (“do the crime, do the time” and “lock ‘em up and throw away the key”), which provided a pretty clear roadmap for justice policy.

I suggest that there are two different unifying themes or rallying cries this time around.

One addresses what I think should be the primary outcome of a properly functioning criminal justice system: recidivism reduction.

If the end game is reducing re-offending, then the focus should be on changing behavior through means other than simple punishment.

We know that the vast majority of offenders in the justice system have a variety of criminogenic disorders, deficits, impairments, and circumstances.  The evidence is clear that the only way to reduce re-offending is to address these criminogenic factors.

We also know that punishment usually serves to aggravate these already serious conditions.

The other theme for reform focuses on procedural, due process matters and includes things like use of force by police, racial disparities in prosecution and sentencing, problems with plea bargaining, wrongful conviction, and seriously underfunded indigent defense, among others.

Granted, this is more of a collection of issues, which poses challenges in terms of a homogeneous strategy.  Nevertheless, due process is a foundational concern that deserves serious attention.

One final thought.  While it is necessary to recognize and applaud changes to date, I believe it is important in the same breath to acknowledge that what has been done so far is piecemeal.

The First Step Act, for example, is lauded as a federal criminal justice reform. But the reality is more modest. It reduces some mandatory sentences for serious drug offenses from 20 to 15 years, and for repeat drug offenders from life to 25 years.

It also gives federal inmates more good time credits toward early release and provides some expansion of job training and educational programming in prison. There is very little here that is aimed at reducing reoffending or addressing due process.

My fear is that such partial efforts will fulfill the reform mandate for many legislators.

The truth is that it is just the beginning.

Kelly is professor of sociology at the University of Texas at Austin and the author of four books on criminal justice reform. He discussed his latest book, co-written with U.S. District Judge Robert Pitman, “Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform,” in a recent conversation with TCR’s J. Gabriel Ware.

from https://thecrimereport.org

How High-Priced Drugs Cripple Prison Health Care—and Reform

Expensive medications for inmates not only strain state and county corrections budgets. They can lead to delays in treatment and substandard care that can have lasting—even deadly—consequences for incarcerated individuals, writes a prison health care advocate.

In a deeply divided political electorate, prison reform is one of the few issues that attracts bipartisan support. Yet there’s something missing from the current conversation about criminal justice reform: the high cost of prescription drugs.

In 1976, a landmark Supreme Court case, Estelle v. Gamble, established an individual’s fundamental right to access medical treatment while behind bars. Specifically, the court found that “deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment.”

Prisons and jails, in other words, are constitutionally required to provide health care to people in their care.

When the drugs needed to treat inmates are expensive, it puts enormous strain on state and county corrections budgets. That, in turn, leads to delays in treatment and substandard care that can have lasting, even deadly, consequences for people who are incarcerated.

It also impacts the state’s ability to improve prison conditions or implement rehabilitative programming that helps keep people from re-offending, things that the current First Step bill currently before the Senate seeks to do.

Unless high drug prices are addressed, prisons and, to a lesser extent, jails will face a difficult trade-off between providing healthcare and enacting the reforms needed to keep people out of the system for good.

Nothing illustrates this problem as powerfully as the ongoing Hepatitis C crisis in state prisons. According to the Centers for Disease Control and Prevention, 17 percent of inmates in prisons and jails—around 400,000 people—are infected with the virus, which is transmitted through blood contact and can lead to liver failure if left untreated.

People who are incarcerated represent less than 1 percent of the population, but they account for about a quarter of all diagnosed Hep C cases in the U.S.

The most common way for an inmate to get the disease is by sharing needles used for injecting drugs, tattooing, or piercing with people who are already infected. And since prisons and jails hold a large number of people with histories of substance abuse— a situation that has gotten worse with the opioid and heroin epidemics—the disease is widespread.

There are highly effective cures for Hep C. Prisons pay anywhere from $25,000 to list prices of $90,000 for a two- or three-month course of one-pill-a-day Sovaldi-based treatment combination, manufactured by the pharmaceutical company Gilead.

Using the low end of that range, it would cost $1 billion to treat 40,000 people—just 10 percent of the number of incarcerated people infected.

Sovaldi is so expensive in part because the drug is protected in the U.S. by a fortress of 29 granted patent and patent applications, amounting to more than 30 years of monopoly power that prevents generic competition. Other countries, including Egypt, Ukraine, Argentina, Brazil, Russia, and 38 countries in Europe, have rejected or restricted Gilead’s patents on Sovaldi for failing to meet the requirements warranting a patent.

Last year, my organization, the Initiative for Medicines, Access & Knowledge, successfully challenged Gilead’s patents on Sovaldi in China, opening the door for generic competition and billions of dollars in savings in that country. The U.S. Patent Office, in contrast, would not allow our challenges to Gilead’s patents on Sovaldi to go to trial.

Gilead’s monopoly pricing in the U.S., unsurprisingly, puts the drug out of reach of millions of Americans, not least those in our prisons and jails. According to a recent survey, 97 percent of people in state prisons with Hep C aren’t being treated.

That has led to a string of lawsuits. Prisoners in Massachusetts, Colorado, Indiana, Pennsylvania, Michigan, Minnesota and Florida have sued and either won or reached a settlement securing their right to effective and timely treatment for Hep C. Similar lawsuits are pending in California and Tennessee.

Across the board, state administrators have cited the prohibitive price of Hep C treatment, and in virtually every case the courts concluded that cost couldn’t be used as justification for failing to screen for Hep C, not treating, or treating with older, less effective drugs.

And that’s just one drug for one disease.

People in prison or jail with diabetes, asthma, opioid addiction, and other conditions also need treatment and many of these are also expensive. Drugmaker monopolies lie at the heart of the problem, and we need our policymakers to take bold action to correct this abuse.

Where else could those billions of state and corrections dollars be spent on if America didn’t pay more per capita for prescription drugs than any other nation in the world? Some of that money could go to reforms like treating mental illness and substance abuse, reuniting families, implementing job and educational programs, and expanding transitional housing facilities.

Priti Krishtell

Priti Krishtell. Photo by Bethanie Hines

These and other reforms, including the First Step bill currently before the Senate, will be far harder to achieve if nothing is done about abusive drug-maker monopolies that are causing over-the-top prescription drug prices.

Priti Krishtel is the Co-Executive Director of I-MAK.org, a global non-profit organization comprised of senior attorneys, scientists and health experts who have worked to lower drug prices through the patent system for 15 years. She can be reached at @pritikrishtel.Readers’ comments are welcome.

from https://thecrimereport.org

How High-Priced Drugs Cripple Prison Health Care—and Reform

Expensive medications for inmates can lead to delays in treatment and substandard care that may have lasting—even deadly—consequences for incarcerated individuals, writes a prison health care advocate.

In a deeply divided political electorate, prison reform is one of the few issues that attracts bipartisan support. Yet there’s something missing from the current conversation about criminal justice reform: the high cost of prescription drugs.

In 1976, a landmark Supreme Court case, Estelle v. Gamble, established an individual’s fundamental right to access medical treatment while behind bars. Specifically, the court found that “deliberate indifference by prison personnel to a prisoner’s serious illness or injury constitutes cruel and unusual punishment contravening the Eighth Amendment.”

Prisons and jails, in other words, are constitutionally required to provide health care to people in their care.

When the drugs needed to treat inmates are expensive, it puts enormous strain on state and county corrections budgets. That, in turn, leads to delays in treatment and substandard care that can have lasting, even deadly, consequences for people who are incarcerated.

It also impacts the state’s ability to improve prison conditions or implement rehabilitative programming that helps keep people from re-offending, things that the current First Step bill currently before the Senate seeks to do.

Unless high drug prices are addressed, prisons and, to a lesser extent, jails will face a difficult trade-off between providing healthcare and enacting the reforms needed to keep people out of the system for good.

Nothing illustrates this problem as powerfully as the ongoing Hepatitis C crisis in state prisons. According to the Centers for Disease Control and Prevention, 17 percent of inmates in prisons and jails—around 400,000 people—are infected with the virus, which is transmitted through blood contact and can lead to liver failure if left untreated.

People who are incarcerated represent less than 1 percent of the population, but they account for about a quarter of all diagnosed Hep C cases in the U.S.

The most common way for an inmate to get the disease is by sharing needles used for injecting drugs, tattooing, or piercing with people who are already infected. And since prisons and jails hold a large number of people with histories of substance abuse— a situation that has gotten worse with the opioid and heroin epidemics—the disease is widespread.

There are highly effective cures for Hep C. Prisons pay anywhere from $25,000 to list prices of $90,000 for a two- or three-month course of one-pill-a-day Sovaldi-based treatment combination, manufactured by the pharmaceutical company Gilead.

Using the low end of that range, it would cost $1 billion to treat 40,000 people—just 10 percent of the number of incarcerated people infected.

Sovaldi is so expensive in part because the drug is protected in the U.S. by a fortress of 29 granted patent and patent applications, amounting to more than 30 years of monopoly power that prevents generic competition. Other countries, including Egypt, Ukraine, Argentina, Brazil, Russia, and 38 countries in Europe, have rejected or restricted Gilead’s patents on Sovaldi for failing to meet the requirements warranting a patent.

Last year, my organization, the Initiative for Medicines, Access & Knowledge, successfully challenged Gilead’s patents on Sovaldi in China, opening the door for generic competition and billions of dollars in savings in that country. The U.S. Patent Office, in contrast, would not allow our challenges to Gilead’s patents on Sovaldi to go to trial.

Gilead’s monopoly pricing in the U.S., unsurprisingly, puts the drug out of reach of millions of Americans, not least those in our prisons and jails. According to a recent survey, 97 percent of people in state prisons with Hep C aren’t being treated.

That has led to a string of lawsuits. Prisoners in Massachusetts, Colorado, Indiana, Pennsylvania, Michigan, Minnesota and Florida have sued and either won or reached a settlement securing their right to effective and timely treatment for Hep C. Similar lawsuits are pending in California and Tennessee.

Across the board, state administrators have cited the prohibitive price of Hep C treatment, and in virtually every case the courts concluded that cost couldn’t be used as justification for failing to screen for Hep C, not treating, or treating with older, less effective drugs.

And that’s just one drug for one disease.

People in prison or jail with diabetes, asthma, opioid addiction, and other conditions also need treatment and many of these are also expensive. Drugmaker monopolies lie at the heart of the problem, and we need our policymakers to take bold action to correct this abuse.

Where else could those billions of state and corrections dollars be spent on if America didn’t pay more per capita for prescription drugs than any other nation in the world? Some of that money could go to reforms like treating mental illness and substance abuse, reuniting families, implementing job and educational programs, and expanding transitional housing facilities.

Priti Krishtell

Priti Krishtell. Photo by Bethanie Hines

These and other reforms, including the First Step bill currently before the Senate, will be far harder to achieve if nothing is done about abusive drug-maker monopolies that are causing over-the-top prescription drug prices.

Priti Krishtel is the Co-Executive Director of I-MAK.org, a global non-profit organization comprised of senior attorneys, scientists and health experts who have worked to lower drug prices through the patent system for 15 years. She can be reached at @pritikrishtel.Readers’ comments are welcome.

from https://thecrimereport.org

Why We Don’t Need William Barr (V2.0) as Attorney General

The former AG, whom President Trump has nominated to return to his old job, is likely to continue the hardline policies of his official predecessor Jeff Sessions. Americans hoping for justice reform deserve better, writes one of the nation’s leading criminologists.

We are finally at the point where the public, the experts, and many (perhaps most) elected officials and policy makers agree that there is something seriously wrong with the American criminal justice system.

While the concerns vary, there is general agreement that our “tough-on-crime” experiment has not been successful. We’ve spent approximately $1 trillion on trying to punish bad behavior out of people with little effect, and another $1 trillion on failed efforts to control the supply of drugs. That investment has bought us an 85 percent recidivism rate.

Another sobering element in this pessimistic picture is the broader social and economic costs of our hardline crime and criminal justice policies, estimated to be $1 trillion a year.

The current movement for criminal justice reform is relatively new, born out of the recession of the late 2000s and concern by state governments over the cost of incarceration. But it has been gaining significant traction.

Whether the concern is recidivism, the price tag, mass incarceration, racial inequality, the excessive use of pretrial detention, the failed war on drugs, police use of force, or dozens of other issues, reform has become a central theme in the media and policy circles, among an ever-increasing number of non-profits and advocacy groups, as well as in many state legislatures and Congress.

Yet we are facing a throwback to the “lock ‘em up and throw away the key” policies that seemed on their way to the drawer of failed ideas.

His name is William Barr.

william barr

William Barr. Photo taken when he was the 77th Attorney General. Via Wikipedia

The former Attorney General whom President Trump has nominated to return to his old job is, at best, likely to preside over a continuation of the policies of his official predecessor Jeff Sessions— who, among other things ordered U.S. Attorneys to charge the maximum offense in federal prosecutions, ramped up the war on drugs, and opposed sentencing reform.

There are good reasons to expect more of the same from Barr.

The 68-year-old Barr served as the 77th U.S. Attorney General from 1991 to 1993 in the administration of the late President George H. W. Bush, who made tough on crime a central theme (the Willie Horton ads are exhibit A). In this, Bush was following the lead of President Ronald Reagan, who facilitated the massive expansion of state and federal prison populations, the implementation of state and federal mandatory sentencing and truth in sentencing laws, and ramping up the war on drugs.

William Barr was a perfect fit for that era.

Americans should be asking whether he belongs in this one—at a time when the momentum for changing the policies of the past four decades has never been stronger.

Barr was one of the chief architects for the incarceration boom, writing in The Case for More Incarceration in 1992:

Ask many politicians, newspaper editors, or criminal justice “experts” about our prisons, and you will hear that our problem is that we put too many people in prison. The truth, however, is to the contrary; we are incarcerating too few criminals, and the public is suffering as a result.

 Barr also was responsible for expansion of drug control policies.  During his tenure, the budget for the war on drugs increased by 140 percent.

After Barr left the Attorney General’s office, he worked in Virginia to eliminate parole, expand the prison population, and increase prison sentences.

Time does not appear to have softened his views about crime and punishment.

He co-authored (with Edwin Meese and Michael Mukasey) an op ed in The Washington Post on November 9, 2018 that sang high praise for Jeff Sessions and his accomplishments as Attorney General.  Among other things, they lauded Sessions’ record on federal prosecution and targeting drug offenders.

Barr also went public in his opposition to the federal Sentencing Reform and Corrections Act (SRCA). The SRCA is a bipartisan bill that would reduce federal mandatory sentences and mandatory minimums, reduce sentences for possession of crack cocaine, and require the Bureau of Prisons to provide more rehabilitative programming to reduce recidivism.

(This week, in a hopeful sign, Senate Majority Leader Mitch McConnell agreed to give the long-stalled bill a floor vote.)

In a system like ours, where justice is for the most part administered at the state and local levels— only about 12 percent of all prisoners in the U.S. are federal inmates— some might think that the impact Barr could have on criminal justice reform is limited to the relatively small federal criminal justice system.

I believe that’s overly optimistic.

Among other things, federal law and policy set standards for others to follow.  If nothing else, an attorney general determined to defend and implement the discredited policies of the past could act as a dampening influence on comprehensive criminal justice reform.

The evidence is clear that Barr has been and will continue to be a tough-on-crime advocate.

Chances are he will pass through his nomination hearings easily, although Democrats vow to ask him tough questions about his approach to the Mueller Commission probe into the links between the Russians and the Trump election campaign.

For many, an establishment figure like Barr might be a welcome moderating force in an administration that shuns science and sets policy based on gut feelings.

Bill Kelly

William R. Kelly

But considering the high stakes of our justice challenges, Americans deserve better.

Kelly is professor of sociology at the University of Texas at Austin and the author of four books on criminal justice reform. He discussed his latest book, co-written with U.S. District Judge Robert Pitman, “Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform,” in a recent conversation with TCR’s J. Gabriel Ware.

from https://thecrimereport.org

Sex, Crime and the Justice System

Sex workers—and sex-trafficked women—continue to be victimized by the justice system despite efforts to change how they’re treated by law enforcement and the courts. That makes a TCR columnist wonder whether we’re really serious about giving them the protection and support they need.  

I recently read about an experiment conducted with Capuchin monkeys in captivity at Yale-New Haven Hospital that offers some intriguing lessons about the relationship between sex and crime.

Under the experiment, monkeys who performed specific tasks at researchers’ behest received silver chips that could be exchanged for a favorite fruit or toy.  The experiment was designed to see if monkeys could be taught the value of money, but in the process they received a lesson in crime control.

Aware that the chips could vanish while they slept, the Capuchin monkeys began to hide them. But female monkeys learned an additional lesson. At risk of having their chips taken by stronger males, they actually began offering chips—“protection money”—to the strongest males.

It didn’t take long for the theft, robbery and protection rackets emerging from the experiment to be infused with another element.

The males began offering the female Capuchins their hard-earned chips to have sex, and the females soon realized that it was far easier to make money “selling” sex then it was to complete tasks for researchers.

They quit performing tricks for humans and got paid by the “tricks” in captivity with them.

The mix of sex, money and crime gets more complicated when it comes to humans. In his book, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality,

Gayle Rubin writes that “sex law incorporates a very strong prohibition against mixing sex and money, except via marriage.”

Consequently, outside of animal enclosures, legions of police are devoted towards hunting women down who dare to exchange sex for money on a commercial basis.

In my youth, I saw many women on the strip get questioned, frisked and hauled off by police officers for violating the criminal justice system’s catchall crime of “loitering;” but in reality they were targeted as suspected prostitutes.

The local news often had stories about sex workers peddling their wares on the streets, and purportedly reducing the quality of life for the rest of the citizenry.

Yet even when prostitution moved from street corners to websites, sex workers continued to be persecuted.

This is a strange thing for me to see when the city I was raised in now has licensed shops where marijuana can be sold legally, and the county works to make the lives of heroin addicts easier.

There was a time when the culture seemed to be shifting—at least to the extent that female sex workers were coming to be seen as victims of both the criminal justice system and patriarchy: their male clients were sent home after trying to purchase sex, but the women were sent to jail.

Many reformers argued that laws against prostitution restricted freedom and autonomy, and decriminalization or regulation of this activity was a better strategy than continuing to fund Vice Squads and incarcerate (primarily poor) women for selling their bodies for money.

The arguments eventually succeeded in convincing enough people to change the status quo. But in a way that should concern anyone who looks at it closely

The “whores” who had been demonized by society were considered victims of sex trafficking—not of the criminal justice system.  Prostitutes need to be protected.  So they needed to be arrested just the same.

These bait-and-switch reforms can be seen in cities that claim to be progressive.

In Seattle, for instance, women are still being arrested and jailed for the “crime” of prostitution, even though the punishment is more lenient based on the view that these women are considered “victims” by those tasked with prosecuting and sentencing them.

In earlier eras, “fallen women” were saved by progressives who implemented policies to confine the fallen for purposes of domestication.  The contemporary version of this involves incarcerating women to provide them with drug treatment and other skills that will enable them to escape sex trafficking.

But the underlying concept is that the criminal justice system is serving these women’s best interests.

A closer look makes clear that’s not happening.

Social workers are not gaining primacy over police officers; shelters are not supplanting jails; and criminal records are not being expunged to reintegrate the women into society and thereby help them avoid future sex trafficking.

Pseudo-reformers claim that victims of sex trafficking have a unique status that warrants a restorative and rehabilitative approach. But jails and prisons are not therapeutic communities.

In fact, I have no doubt that imprisoned victims of sex trafficking know that a retributive ethos lies at the heart of their present misery, notwithstanding benevolent evocations by prosecutors, judges, and apologists with doctoral degrees in criminology.

Still, while watching the news recently, I learned that throughout the Seattle International Airport, travelers will now see signs informing them how to identify and report suspected sex trafficking.

This marketing campaign has been brought to you by those who never had a problem with sending poor women to the pokey for selling their bodies. It never ceases to amaze me how the criminal justice system adapts when hypocrisy, bias and inequity make it problematic to continue a practice while maintaining legitimacy.

I know how this game works from firsthand experience.

I used to be a super-predator. My youth did not mitigate my culpability for committing adult-like crimes.  Then, developments in psychology made the super-predator evolve into a less wicked being with a greater capacity for reform.

However, as with sex workers, that’s not what happens when the criminal justice system’s machinery swings into gear.

Records are not being expunged or sealed as a matter of course when youths turn 18, even though research tells us that crimes committed by juveniles generally reflect transient immaturity rather than irreparable corruption.

Juvenile detention centers are not being remodeled into therapeutic communities.

All that has changed is the quantum of punishment—not the response to crime or the personnel devoted to prevention.

So it is with sex workers as well.

Nevertheless, there are some ancillary benefits for women ensnared in the criminal justice system.  By conflating all prostitution with sex trafficking, female defendants can use this as a means to obtain mercy.

If you are caught selling drugs, explain during trial or at sentencing that you were strung out by a sex trafficker long ago as a means of control—and now you must peddle narcotics to support the habit that was foisted upon you.  Magically, you will transform from an avaricious, heartless drug pusher into a victim worthy of a reduced sentence and drug treatment.

If you assaulted some man in a domestic violence incident, explain that your actions were a product of the trauma induced by years of being trafficked for sex.  With this plot twist, you will now be seen to have experienced trauma worthy of judicial recognition.

I could go on concocting mitigating arguments based on the present-day sex trafficking meme. It is a gift that can keep on giving.

I have a lot of empathy for women caught in these situations. It makes sense for any woman facing jail or prison time to use sex trafficking as a proxy for all of their criminal misdeeds.

A traumatic childhood defined by physical and sexual abuse, and abandonment and neglect, has not shielded women from draconian sentencing guidelines.  Nor has childhood poverty, a criminogenic environment, and schools that aren’t conducive to learning made these women any less “wicked” to prosecutors, judges, and society once they have been arrested.

The rules of the game require that officials maintain the fiction that our crimes are the result of conscious, willful choice rather than systemic inequalities.

Jeremiah Bourgois

Jeremiah Bourgeois

So, with no other options available to persuade justice officials to recognize their humanity, women who can reinvent themselves as sex trafficking victims might find mercy from a system that is all too often merciless.

Take a lesson from the Capuchin monkeys.

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 is currently petitioning for release from the Stafford Creek Corrections Center. Readers who wish to support him are invited to sign up here.

from https://thecrimereport.org

Science Takes a Hit at the Department of Justice

The official shutdown of the Justice Department’s Science Advisory Board was announced in a terse message to members this week. One member says it’s a step backwards from an ambitious attempt to apply scientific and evidence-based thinking to the federal justice structure.

On Wednesday morning, all members (including me) of the Department of Justice’s Science Advisory Board (SAB) for the Office of Justice Programs were notified that the Department is abolishing the SAB.

The news was not unexpected. Since the Obama Administration left town, there had been just one meeting of the SAB.

The next three meetings were never scheduled. With no official word about the Board’s fate, most of the members expected to hear that the SAB’s official charter would be allowed to lapse.

The news came in the form of an official letter from Matt Dammersmith, Principal Deputy Assistant Attorney General.

“At this time,” Dammersmith wrote. “[The Office of Justice Programs] OJP has decided to bring closure to the SAB.”

He added: “OJP plans to continue to seek the advice of scientists and practitioners from across to country to provide input into the scientific activities and priorities of the OJP.”

The SAB was formed by the Obama Administration in 2010. Its goal, according to the SAB charter, was to provide advice on science-related issues.

The charter explained the SAB’s mission in the following way:

The Board will provide the office of the Assistant Attorney General (AAG) of the Office of Justice Programs (OJP) with valuable advice in the areas of social science and statistics for the purpose of enhancing the overall impact and performance of its programs and activities in the areas of criminal and juvenile justice. The Board will help develop long-range plans, advise on program development, and recommend guidance to assist in OJP’s adherence to the highest levels of scientific rigor as appropriate. The Board will provide an important base of contact with the criminal justice and juvenile justice academic and practitioner communities.

Al Blumstein, Carnegie Mellon University. Founding Chair SAB.

The membership of the Board, including founding Chair Al Blumstein of the Carnegie Mellon University, and his successor Ed Mulvey of the University of Pittsburgh School of Medicine, represented a wide range of academic disciplines. That included social and behavioral sciences, as well as professional disciplines including law enforcement, corrections, treatment specialists, prosecutors, and the defense bar.

The initial members represented a broad selection of some of the country’s most noted criminal justice scholars and practitioners, including former NYPD Commissioner William Bratton, Frank Cullen, Mark Lipsey, Tracey Meares, Joan Petersilia, Rick Rosenfeld, Rob Sampson, and David Weisburd.

The most recent membership list maintained that tradition.

During their meetings from 2011 to 2017, the members of the SAB received updates from the leadership of OJP and its bureaus (including the National Institute of Justice, the Bureau of Justice Statistics, The Office of Juvenile Justice and Delinquency Prevention, and the Bureau of Justice Assistance) on the Office’s initiatives and funding plans.

The Board members, in turn, would provide or facilitate presentations about pressing issues in policy and practice, and the extent to which available solutions were grounded in science or could be better supported by new evidence.

The members of the SAB, who served without compensation, did not judge or recommend particular OJP policies or programs. The mission was to provide guidance as available from the scientific literature and the newest findings of evaluation research.

At the first meeting, then-Assistant Attorney General Laurie Robinson told SAB members she hoped the Board could play six key roles in support of OJP.

  • Look at the broad role of science within OJP and how we can better integrate what we learn from science in to our programmatic design and spending;
  • Think about ways, of course, to strengthen the research and statistical functions within OJP;
  • Suggest broad priorities on which research might be focused.
  • Consider and make recommendations about institutional ways to protect the science here going into the future.
  • Think about ways that OJP can more effectively connect researchers with practitioners and policymakers – particularly on translation of evidence – and generally serve as an avenue for outreach to the field and a promoter of a two-way dialogue;
  • And finally, play a helpful role in providing advice and counsel to us on
    practical concerns, like improving the way we handle peer review.

The members of the SAB were very conscious of Robinson’s fourth point, which she described as “critical.” As she pointed out:

We may not enjoy the support for science in future Assistant Attorneys General and Attorneys General that we have today. The Justice Department is a lawyer culture and we know from history that it can be hostile to science. We need to build in protections.

During 2016 the Board devoted considerable effort to preparing advisory notes for the field.

We joked (before we knew the outcome of the 2016 election) that these advisory notes represented our “message in a bottle,” that would be set afloat on the broad ocean of political change, and we hoped they would be of service to future researchers and policymakers.

The statements represented the consensus views of the diverse membership of the Board, were approved by a vote of the Board, and then promulgated on the Justice Department’s website on January 17, 2017.

 

science advisory board

Members of the now-disbanded Science Advisory Board of the Department of Justice

 

Advisory Statement 1 clarified the important but limited role of randomized controlled trials in the development of effective policies and practices, including:

Randomized controlled trials (RCT) generally provide the strongest or most defensible causal evidence for programs and practices, but it may not always be possible to implement successful RCT evaluations in the field. Many important questions in the field of justice are not answerable using RCT studies—either for practical, economic, political, or ethical reasons.

 Research questions that are very difficult or expensive to answer using experimental methods may merit the necessary investment if they have widespread or profound social consequences, just as research questions with only modest consequences still merit experimental investment if they can be answered easily and at little cost. Funding for RCT evaluations should be managed like an investment portfolio with resources concentrated on the most effective combinations of theoretical salience, research feasibility, and social benefit.

Advisory Statement 2 focused on the role of evidence in justice policy and practice, including:

The strength of evidence required to judge the value of programs and practices in the justice field is a question of balance. Judgments should be based on the best available evidence, but the strength of evidence required for any decision is gauged by the costs of error and the burden of increasing evidentiary quality.

 Decisions with little consequence require less accurate evidence and less exhaustive evidence. Highly consequential decisions require more evidence. Navigating the continuum of evidence-supported decision-making is complex and subjective. The available evidence for any policy, program, or practice is not the product of a straightforward and untrammeled search for effectiveness. It emerges from a contentious and inherently political process that governs social investment in research.

Advisory Statement 3 examined the responsibility of policymakers and researchers to both identify and develop effective interventions and strategies, including:

 Justice programs are generally designed to achieve specific purposes, and produce intended effects. The effects of an intervention on the target population, both intended and unintended, are known as outcomes.

 Recidivism is the most common outcome of interest within the justice field, but other measures are used, including satisfaction with services, impacts on drug use, employment, educational success, and the legitimacy of criminal justice agencies across communities. Identifying the correct outcomes for a policy, program or practice is a basic task associated with program development, performance measurement, and program evaluation.

 There are a number of considerations related to outcome measurement that OJP must consider in drawing inferences about the effectiveness of justice programs. These include: primary and secondary outcomes, unintended outcomes, cost/benefit, implementation fidelity, and efficacy versus effectiveness research.

The SAB and its meetings and products were an effective means of infusing scientific thinking inside of the federal justice structure with the hope that all aspects of criminal justice, juvenile justice, and the much larger concerns of social justice would be informed by evidence.

Jeffrey Butts, PhD.,director of John Jay College’s Center for Research and Evaluation

And, just as importantly, that the production of future evidence would be sensitive to a broader range of interests and considerations—not simply mirror the preferences of current office holders.

I miss it already.

Jeffrey Butts, PhD., is director of the Research and Evaluation Center at John Jay College of Criminal Justice. This essay was originally published in Dr. Butts’ blog. He welcomes readers’ comments.

from https://thecrimereport.org