TRUE, a pilot program at a maximum security facility in Connecticut, offers prisoners a path back to normalcy, with educational programs and schedules they help devise. It’s one of several innovative experiments in changing correctional practices that reformers hope will change the face of U.S. prisons.
“We’re taking a leap,” said Scott Erfe, the warden of the super-max Cheshire Correctional Institution in central Connecticut.
The inmates seem to agree the leap is worthwhile.
In a live-streamed interview Wednesday, young men who have been living most of this year in a special, insular unit where they can choose their own clothes, prepare their own meals, develop case plans with goals for education and employment, and are encouraged to have visits and contact with family, said the program had given them new confidence and changed their lives.
“I want to make true changes in myself and help others make changes,” said Chris Belcher, one of the young men taking part in the TRUE program at Cheshire.
“A mentor once started crying when she was visiting, and it immediately just made me feel that someone actually cared about me. That makes a big difference. Being able to become vulnerable meant a lot to me. It helped me keep doing what I’m doing.”
A prison mentor, TRUE resident Jermaine Young, agreed.
“It’s about teaching (an inmate) to be a human being again….If you’re treated like an animal long enough, you’re going to start acting like an animal.”
The TRUE program, supported by the Vera Institute of Justice, is one of a handful of experiments around the U.S. to change correctional practices.
Connecticut Gov. Dannel Malloy. Photo by Graham Kates/The Crime Report
“We tend to look at prison as a punishment vehicle and we should exact the highest possible price,” Connecticut Gov. Dannel Malloy said at a John Jay conference Wednesday that featured the livestream broadcast from Cheshire.
“If we could change that dynamic in the United States, then we would have less crime, lower rates of recidivism, and we could really turn lives around.”
The conference was held to highlight a major report issued by Vera Wednesday, entitled “Reimagining Prison,” which called for transformative changes in both correctional practices and prison design.
“The fundamental experience of people who currently live and work behind prison walls remains one of isolation and hardship, of which the public is generally and wrongly tolerant,” said Nicholas Turner, Vera’s president.
“We’ve lost generations to a modern incarceration system, designed to degrade and dehumanize and to extend racial oppression. But a radical change is possible—and, in some places, it’s already here.”
In Connection, before being accepted into TRUE, many of the men, aged 18 to 25, lived 22 hours a day in their cells in a super-max long nicknamed “the Rock.”
When asked why Cheshire was chosen for the TRUE unit, co-developed and sponsored by the Vera Institute, one staffer said that family members being able to get to the prison, located in central Connecticut, was a factor. Some 58 men have participated, working with 12 mentors along with prison staff.
“Corrections is a black and white world,” said Erfe, the Cheshire warden. “TRUE is in the gray area.”
(L-R) inmates Jermaine Young, Chris Belcher, Cheshire Correctional Institution Warden Scott Erfe . Photo courtesy John Jay.
There have been no incidents of violence in the TRUE unit since it launched 18 months ago, and the program is expanding to a women’s prison in Connecticut and a jail with the Middlesex County Sheriff’s Office in Massachusetts.
At the conference, Cheshire’s warden and other staff talked about the need to develop new ways to incarcerate people—and to change the sometimes toxic dynamic between staff and prisoners.
“I’ve seen for myself a staffer working 20 years, getting his retirement, but unable to even enjoy it because of all the deep stress,” said Erfe.
John Jay President Karol Mason and Vera President Nick Turner. Photo courtesy John Jay
In her opening remarks, John Jay President Karol Mason praised the education emphasis in the TRUE unit and running through the Vera report.
In John Jay classes taught to prison residents, she said, when a teacher asks a question, “every hand goes up.”
The idea for TRUE was born from a visit to Germany by Connecticut correctional leaders and Vera Institute officials. They said they were struck by the fact that human dignity within the German prisons is paramount, often attributed to the country coming to terms with its creation and perpetuation of the Holocaust.
Recidivism rates are far lower in Germany than in U.S.
“Vera’s whole concept on how to reimagine prison was spurred by a trip we took to Germany,” confirmed Turner.
“We saw that their system was rooted in human dignity and not dehumanization. That came from confronting their original sin. We have to do that here. We haven’t.”
“The recent prison incident in South Carolina that left seven dead, as well as prison strikes across the country the 2016 and 2018 protesting inhumane treatment, serve as tragic wake-up calls that something is fundamentally wrong in American prisons,” according to the report, noting the historic timeline of an American prison policy that has been overtly built on slavery and the Jim Crow system.
Two Pulitzer Prize-winning reporters uncovered the trail of a serial rapist and two very different police investigations. TCR talks with one of the journalists who followed the story.
In 2008, 18-year-old “Marie” was raped in her apartment near Seattle, Washington. But within a few days of reporting the assault to police, Marie, whose full name remains unidentified, became the subject of the police investigation.
As Pulitzer Prize winning reporters T. Christian Miller and Ken Armstrong recount in in their book A False Report: A True Story of Rape, she didn’t act according to police preconceptions of how rape victims should behave. And when they received a phone call casting even more doubts, they dropped the investigation.
Then Marie’s attacker went on to rape several more women in Colorado.
Armstrong and Miller argue the story is an example of how preconceived notions influence police investigations and raise questions about the fairness of the justice system. In a conversation with TCR staff writer Megan Hadley, Ken Armstrong explains how reporters working in two different cities came together on the investigation, what it taught them about the media’s influence on sexual assault cases, and whether the gender of investigating officers makes a difference in such cases.
The Crime Report:How did you first become interested in the case of a possible serial rapist out in Colorado?
Ken Armstrong: I lived in Seattle, so I had seen coverage in the Seattle Times of the rapists’ arrest and it turned out he had also raped a woman in Washington [named Marie], who had reported the crime and not been believed. What was missing from the coverage was Marie’s personal account. She had not spoken to the media about what she had gone through. What I was hoping to get were details on how the police investigation in Washington went off the rails. I was hoping to be able to reconstruct how the investigators first began to doubt the woman’s account, and how those doubts spread.
TCR: Where did you and your co-author, T. Christian Miller, find each other in the story?
Armstrong: It was a really unusual set of circumstances. I was working for The Marshall Project when I began working on the story in 2015, and T was working for ProPublica. He was interested in reporting on the investigation in Colorado because he heard about the outstanding work that the detectives there had done. So he wanted to profile an investigation done well–done spectacularly well. I was looking at the other half of this story, in Washington, in terms of what went wrong. Both of us intended to fill out our reporting by figuring out what was happening in the other state.
T crossed state lines first. He placed a call to Marie’s attorney in Washington and found out there was another reporter working on the same story. So he told his editor, and they decided, instead of rushing the story into print in order to beat us, they would reach out and see if we wanted to work on it together. So that’s what we did. It was pretty serendipitous. I had half the story based on what happened in Washington and he had the other half based on what happened in Colorado, so we were able to walk those two paths together.
TCR: Early in the book, you mention that cops take different approaches to investigating a rape because there is no universal consensus for the best way to solve it. Should there be necessary steps that police officers must take when investigating rape claims?
Armstrong: I do think there can be best practices. There needs to be a consensus that the most important aspect of any investigation is the evidence. Evidence trumps assumptions. You can’t be swayed by pre-conceptions or assumptions about what someone should act like when they get hurt. That’s what happened here. A lot of people around Marie had pre-conceptions about how she should act because she had been raped. And when she didn’t meet those expectations, they began doubting her. And one of the people who doubted her called the police, and then the police began doubting her.
That didn’t happen in Colorado. Detectives (there) investigated each of the reports thoroughly and they let evidence guide them towards what was the proper conclusion. So to me, it’s the idea that you have to investigate thoroughly and completely, and you can’t be blinded by your assumptions about what every victim should be doing.
TCR: You note that most of the police force is male-dominated, with a macho, hierarchical and militaristic mindset. Is that why so many rape cases go unsolved?
Armstrong: I don’t know if you can attribute it to gender- it did happen to be the case here though. The cases that were solved in Colorado, two of the lead detectives there were women. And the case that was so mishandled in Washington, the lead detective was a man. But I think what is most important is competence, compassion, patience and understanding and those qualities are not limited to either gender.
There have been studies showing that female police officers can be more patient and understanding, particularly in the case of domestic violence, and it’s possible that you might see a carry-over to rape cases. But I think that it’s the qualities I just described rather than the gender of the detective or the officer.
TCR: You also mention the public’s influence on police investigations, quoting a retired police sergeant, who said “people outside of law enforcement didn’t want to talk about sexual assault.” Is that changing, in light of the recent cases involving Larry Nassar, Harvey Weinstein and others?
Armstrong: That is changing. We’re seeing that with the #MeToo movement. There is a real realization about how prevalent this problem is and how it needs to be dealt with directly and in a public fashion. The examples you just mentioned with Weinstein and all kinds of cases that have been written about in the past year.
TCR: In the book, you include multiple chapters from the perspective of the rapist, detailing the “monster within” that he struggled with for many years. Did you want readers to sympathize with the serial rapist?
Armstrong: No we did not want readers to sympathize with him. We wanted to interview him for the same reason the FBI wanted to interview him after he was caught, to gain a better understanding of what drove him and to get a better understanding of how he avoided being caught for so long. The FBI agent spent four hours with him afterwards, trying to gain an understanding of what steps he had taken to avoid being caught, so that the police could benefit from that knowledge, and hopefully incorporate some of that knowledge towards how to investigate cases going forward.
TCR: Do you think, generally, someone convicted of a crime can go back and help police catch other perpetrators?
Armstrong: They can. This is why you often see police officers wanting to go and interview people after they have been caught. The more you understand about a criminal, the better your chances of catching other people going forward.
TCR: You also include chapters from the perspective of Marie, the rape victim who police officers refused to believe. What are some of the issues that stem from pre-conceived notions about how a rape victim should act?
Armstrong: I think some people have an expectation that a rape victim would be crying, would be hysterical, and some are. But some aren’t. Some have almost no affect, their voice is flat, their appearance is flat. When you look at what happened with Marie, the people around her expected her to be hysterical and crying and they were taken back when she spoke with so little emotion. When she didn’t make eye contact, some people found that to be unusual. When she didn’t hug someone she would usually hug, people found that to be unusual. At one point she was giggling and people thought that was unusual.
People were constantly looking for behavior from her to align with what they expected, and when they didn’t see it they became suspicious, and that extended to both the people who were friends and family, and to police officers investigating the case.
TCR: What can police departments do to ensure that survivors are not re-victimized by the very institutions that are sworn to protect them?
Armstrong: One big element is to listen. Also, how you speak to someone who has been hurt and how you question them is important. The big problem in a number of cases we looked at is the police officers didn’t interview people as victims. Instead they interrogated them as suspects and treated them as though they were someone who committed a robbery. They used interrogation techniques that are grossly inappropriate in a setting like this.
Those interrogation techniques put an extraordinary amount of pressure on people, and when you see rape victims who were raped recant their story, you have to understand the interrogation techniques and how powerful they are.
TCR: You also note the layers of doubt that afflict every stage of a rape prosecution including the victim doubting themselves, police doubting, prosecutors and juries doubting. So, what needs to change in order for victims who are telling the truth to receive justice for the crimes committed against them?
Armstrong: I think it’s important to not start by doubting. When someone reports being raped, listen and investigate and let the evidence take you to the right conclusion.
Megan Hadley is a staff writer for The Crime Report. She welcomes comments from readers.
The Crime Report launches its seventh annual readers’ poll of the year’s most significant criminal justice stories and newsmakers. Our staff and contributors have nominated their choices. Please choose from our list, or suggest others. We’ll publish the results next week.
What were the most significant criminal justice stories and trends in the U.S. during 2017?
Which person (or persons) had the most significant impact?
For The Crime Report’s seventh annual year-end review, TCR staff, columnists and contributors have nominated news stories or developments that, in our collective judgment, have had a critical impact on the U.S. criminal justice this year—and will likely continue to resonate during 2018.
We’ve also identified a handful of “newsmakers” whose work or actions during 2017 were especially impactful.
Now we’d like to hear from you.
Since our readers are among the nation’s thought leaders in the criminal justice world—journalists, academics, practitioners, advocates—the results of our annual surveys always attract special attention. .
We think it is a constructive way of putting a complicated and often troubling year into perspective (pretty much what we try to do for each day’s news in TCR)—and we hope you agree.
Below are 15 stories/developments we’ve identified as candidates for our “Top Ten” criminal justice stories of 2017. We’ve added a brief rationale for each.
Please check up to ten.
Feel free to tell us why you made your choices. We’ll be happy to publish a selection of the best comments (anonymously if you prefer).
Similarly, please choose two newsmakers from the second list who you believe had a major impact on the U.S. criminal justice system in 2017, and/or will bear watching in 2018.
Picking a newsmaker does not, of course, mean you endorse his/her views or actions.
TCR’s Newsmaker of the Year is a recognition of that person’s impact—for good or ill—on criminal justice in 2017.
We wanted to keep the list manageable. Inevitably, some issues, newsmakers or developments that may be on your priority list are missing here. So we’ve left space for a “write-in” ballot, where you can add a story or person you think we’ve overlooked. If enough readers join you, your choice might make the final cut!
Please send in your replies by midnight Eastern Standard Time tomorrow (Friday, December 15). The final results will be published next week.
With executions and death sentences at near-historic low levels so far this year, the U.S. is witnessing a “long-term change in capital punishment,” according to a report released Thursday by the Death Penalty Information Center (DPIC).
With executions and death sentences at near-historic low levels so far this year, the U.S. is witnessing a “long-term change in capital punishment,” according to a report released Thursday by the Death Penalty Information Center (DPIC), a Washington, DC-based advocacy group.
The report, entitled ‘The Death Penalty in 2017,” notes that the 23 executions in 2017 were the second fewest since 1991, and the number of total imposed or projected death sentences (39) this year is the second lowest since 1972, the report said.
Table courtesy DPIC
“The new death sentences imposed in 2017 highlight the increasing geographic isolation and arbitrary nature of the death penalty,” said DPIC Director Robert Dunham in a press release accompanying the report.
Just three countries—Riverside, CA; Clark, NV; and Maricopa, AZ—were responsible for more than 30 percent of the death sentences levied around the country.
Nearly 75 percent of executions took place in four states: (Texas (7); Arkansas (4); Florida (3); and Alabama (3).
The report notes that Harris County, Tx., which once led the nation in the number of executions, and did not execute any prisoner or impose any death sentence this year, is symbolic of the decline.
Dunham said the declining numbers coincide with a sharp drop in public support for the death penalty across the U.S., now at 55 percent—a 45-year low.
The short answer, writes an environmental attorney, is no one. The White House proposal to cut the EPA’s budget by 31 percent next year has fueled calls for states and private agencies to take on the burden of policing polluters—which he argues will have only limited impact.
Ask anyone in the industry, or check the record: No one is enforcing our environmental laws.
Whether or not that was the goal of the Trump Administration, it certainly seems to be one of the effects of its recent moves, beginning with the appointment of Scott Pruitt last year to head the Environmental Protection Agency (EPA).
Pruitt was an outspoken critic of the EPA when he was Oklahoma Attorney General.
The White House earlier this year proposed a 31 percent cut in the EPA’s budget for 2018. While the budget was not slashed nearly as much as proposed, we can expect a significant decrease in the criminal enforcement of the federal environmental laws, as well as a decrease in the civil enforcement of these same laws.
Under federal law, there are supposed to be 200 EPA criminal agents (out in the field investigating environmental crimes). These agents interview people, examine documents, and perform surveillance, similar to the duties other law enforcement officers perform in the investigation of criminal activity.
That’s still only about three-quarters of what Congress has statutorily mandated. The number of EPA enforcement agents has not been at the congressionally mandated level for years. Based upon early indications, it will not reach that congressionally mandated level at all during the Trump Administration.
Recently, the Environmental Integrity Project documented the significant decline in environmental enforcement during the first six months of the Trump Administration.
Why does this matter?
Nothing compares to the power and weight that the federal government brings to a criminal investigation of a company, individual or industry.
In the pre-Trump era, criminal enforcement was an effective tool to protect our waterways, lands and forests. According to the EPA’s own statistics, during 2017, the agency had a 94 percent conviction rate and won 79 percent of the cases that went to trial.
When a search warrant is issued, charges result about 70 percent of the time. Roughly 85 percent of those who were charged were individuals, and the remainder were corporate violators. While those numbers may seem high (and they are comfortable numbers if you are a prosecutor), the percentages do not tell the whole story. The number of cases being made by the fewer and fewer criminal investigators will tend to skew the percentages.
All the same, the industry should not get too comfortable. While the likelihood of being criminally investigated by the federal government may be reduced, enforcement of state environmental criminal laws continue—but will also be less because much of the EPA budget is in the form of grants to the states for enforcement purposes.
There are also mechanisms for private party enforcement under federal environmental laws.
In states where an environmental law program has been delegated, the state shares in the opportunity to bring criminal charges. Nonetheless, state criminal enforcement of the environmental laws is almost non-existent.
This is due to a number of historical factors as well as money considerations.
For years, all environmental criminal charges had to run through the Department of Justice’s environmental and natural resources division. Not even local United States Attorneys were allowed to bring the case.
That has changed over the years. However, based in part on this historical development, the states have largely stayed out of the environmental criminal enforcement arena. The states are more apt to bring a civil enforcement action.
In most states now, though, the environmental agency is constrained by budgetary considerations and as a result, enforcement is an afterthought.
Could private, non-governmental organizations take up the slack by intensifying enforcement efforts under the citizen suit provisions of federal environmental statutes?
The major environmental statutes allow private party enforcement, including the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, the Safe Drinking Water Act and the Toxic Substance Control Act. And there are few limitations on who can pursue a citizen suit.
The concept of “standing” is a hurdle (and always has been), but it is not an insurmountable hurdle. Then there is the required notice to the government and prospective defendants of the alleged violations before filing the citizen suit.
In the absence of a government response and enforcement, the citizen suit may proceed. The citizen suit plaintiff may also be allowed the recovery of its attorneys’ fees. Citizen suits are no substitute for having a robust criminal enforcement program at the federal level.
Walter James III
Most importantly from an enforcement standpoint, no one can go to jail as a result of a citizen suit, no matter what the outcome. The citizen suit is about enforcing compliance with a statutory provision. Essentially only money, not freedom, is at stake.
Robust criminal enforcement of the environmental laws is critical.
The federal government’s ability to pursue a criminal investigation against environmental violators is just too important a tool to be abandoned or left to the states or citizens.
Congress will need to provide oversight and pass a budget for 2019 that provides for a more robust enforcement of our environmental laws. After all, the Republican Party is the party of law enforcement – right?
Walter D. James III is an attorney whose practice focuses primarily on environmental counseling and environmental litigation, which includes civil enforcement and environmental criminal defense. He welcomes comments from readers.
Fordham law professor John Pfaff argues in a new book that traditional explanations for America’s mass incarceration crisis distract from the central challenge of rethinking how we punish violent offenders. In part one of a chat with TCR contributing editor David Krajicek, he offers some solutions.
The unbridled discretion of prosecuting attorneys—and not the war on drugs or draconian sentencing—is largely responsible for America’s mass incarceration mess.
John Pfaff. Photo by Chris Taggart (courtesy Fordham University)
Building on a series of scholarly papers he published over the past decade, Pfaff, who holds both a law degree and a Ph.D. in economics from the University of Chicago, uses his book to challenge the “standard story” of mass incarceration, making his case through data analysis. In a two-part Q&A with The Crime Report’s David J. Krajicek, Pfaff describes how pursuit of reforms fitted to the flawed “standard story” narrative has distracted from a more appropriate redesign of punishment.
The Crime Report: You criticize the three-legged narrative about mass incarceration: that government-orchestrated drug convictions, longer sentences, and unscrupulous private prison firms were largely to blame for overfilling penitentiaries. What’s wrong with it?
John Pfaff: It distracts us from confronting the tougher, but more central, issues. In a recent poll, a majority of Americans—from liberals to conservatives—said they opposed being less severe towards those convicted of violent crimes, even if such people pose little to no risk of recidivism. Yet over half of all people in prison are there for a violent crime; we can’t cut prisons in any meaningful way without changing how we punish violence.
The constant drumbeat of “prisons are full of low-level non-violent drug offenders” has produced a public still unwilling to tackle what has to be tackled. Similarly, by continuously paying attention to private prisons, reformers and the public end up ignoring the far more powerful public correctional officer unions. And the insistence on cutting excessively long sentences at the legislative level has produced a reform effort that has taken almost no steps to meaningfully reduce the charging power of prosecutors, even though that power is the most important engine of prison growth.
I wouldn’t call the narrative “false,” though. Each of the problems it identifies are real problems: too many drug offenders are in prison, we lock people up for too long, private prisons can wield problematic power. But each takes our attention away from something related that is far bigger and far more important. It leads us to tweak things on the margin rather than attacking the heart of the problem.
TCR: Michelle Alexander has replied that stepped-up drug enforcement was the leading edge of a punitive wave that swept across criminal justice. Agree?
Pfaff: I don’t, or at least not entirely. Take New York State. It passed the Rockefeller Drug Laws, some of the harshest drug laws in the country, in 1973. Yet by 1984 there were fewer people in New York prisons for drugs than in 1973. The spike in drug prisoners starts in 1984—when crack-related violence swept across the state. And then the number in prison for drugs starts to steadily fall in 1999, which was years before any reforms were passed…I don’t think it is so easy to disentangle the appeal of war-on-drugs rhetoric from the rising violence that was occurring at the same time.
No doubt there’s a feedback loop: rising violence makes drug-war rhetoric more appealing, and drug-war rhetoric perhaps pushes us to take a tougher approach towards crime more generally, and a less public-health focused view of drug abuse more specifically. But I think violence has played the dominant role here.
TCR: The mining and analysis of criminal justice data is a mini-industry. Yet you write you were surprised to discover “the magnitude of what we don’t know.” Have we been asking the wrong questions?
Pfaff: Not the wrong questions, but I think we end up focusing on questions where the data are easiest to find and thus keep asking the same ones over and over. We have data on crimes, police and prisons, so most of the papers on prison growth—including the big National Research Council report—just keep looking at trends in crime, arrests per crime, and admissions per arrest.
In doing so, they completely ignore prosecutors, in no small part because we simply have so little data on what they do. And that creates a dangerous feedback loop: We study the things we have data on, and so we insist on more data about those things. I think one reason we lack data on prosecutors is because we don’t study them and thus don’t push for it—which is partly because we had no data on them to start with.
TCR: You urge more oversight of “profoundly powerful” prosecutors, the antagonists of your book. What data would you seek?
Pfaff: First—and this might surprise some people—if I weren’t a law professor, I would be a prosecutor (although by this point it may be hard to find an office that would hire me). That’s my bias. They aren’t really my antagonists. But they have come to use their unregulated discretion in such a way that even someone with my political bent feels compelled to push back against how they operate today.
To better understand prosecutorial decisions, I would like to see how they choose which cases to pursue and which ones to dismiss, how they choose the charges they file in individual cases, and how they operate at plea bargaining.
To do this, I’d like prosecutors to provide data on each case that the police deliver them, with information about the arrest charge, the initial charge filed in court (if different), and the final charge either tried or pled to, as well as any other charges threatened during plea bargaining. Combine that with demographic and criminal-history data on the defendant, plus demographic data on the prosecutor and (ideally) the defense attorney, and I think we could figure out a lot.
This isn’t entirely a pipe dream. I’ve seen a few papers with office-specific data on many of these things. But for now we have nothing systematic along these lines.
TCR: The journalist David Cay Johnston says criminal justice should produce the same sorts of monthly or quarterly data releases that we expect from the economic sector. Would that help?
Pfaff: I think it would, although it would be a much different enterprise. The federal Bureau of Justice Statistics has a budget of $40 million, and the FBI spends less than $2 million on Uniform Crime Reporting. The Bureau of Labor Statistics has a budget about 10 times larger, $650 million.
So while our criminal justice agencies rely on self-reports from state, county and city agencies, the BLS is able to run regular, well-designed surveys to keep track of economic trends in the US.
There’s no reason we couldn’t run similar real-time surveys for criminal justice, but it would require a massive redesign of the data-gathering infrastructure. And there would be complications, like the fact that the populations most vulnerable to crime and victimization are among the hardest to accurately survey and sample. The merging of data is also complicated by the fact that states and locales define crimes and classify prisoners in different ways, and so on.
TCR: You note (A) that Americans are a “low-information, high-salience electorate,” treating crime anomalies as trends. Meanwhile (B), we have a president and attorney general who play on that by painting the U.S. as a crime “nightmare.” You also write (C), “More important than any legislative reform effort will be attempting to change people’s attitudes toward crime.” How is C possible, given A and B?
Pfaff: We often overstate the importance of presidential rhetoric when it comes to crime policy. The 2016 election provides an interesting case study. At the same time Trump was using dated tough-on-crime rhetoric to eke out an Electoral College victory, over a dozen smart-on-crime candidates unseated tougher-on-crime incumbent prosecutors. And Oklahoma, where Trump won by a wide margin, passed two state-wide referenda decriminalizing all sorts of drug offenses and funding treatment.
I think people’s views on crime are influenced much more by local conditions than by what people in D.C. are saying.
That said, I agree that changing attitudes will be tough. Part of what we need is just a generational shift. It doesn’t surprise me that the people in Congress pushing for reforms are younger senators like Cory Booker (D-New Jersey), and those resisting are older senators like Chuck Grassley (R-Iowa). If you’re my age, 41, crime has been dropping for almost all of your politically aware life; Boomers still remember much more acutely the rise in crime that happened in the 1960s, ‘70s, and ‘80s.
As a result, I think younger cohorts will generally be less punitive. JK Galbraith once joked that “funeral by funeral, economic theory advances.” Sadly, I think a lot of things advance that way…
I think the challenges posed in your question point to the need to shield criminal justice actors from the worst of immediate democratic accountability. Perhaps we should appoint rather than elect local prosecutors. And we should definitely stop electing judges. Perhaps we should force new criminal laws to go through a sentencing commission that can slow down passage so the “crime of the week” has less of an impact on policy. So far, however, there has been almost no talk about how to make sure criminal justice actors don’t have to (over) react to anger produced by rare but high-salience cases.
TCR: The FBI still groups crime statistics into headings that date from the early years of J. Edgar Hoover’s reign. Should we rethink our concepts of crime itself?
Pfaff: The Uniform Crime Reporting headings still seem to make sense: most index crimes really do seem like the most serious (murder, rape, robbery, aggravated assault, burglary, theft, auto theft, and arson). I think what people need to appreciate is what a rough estimate the UCR is.
It rests on a lot of assumptions, like the fact that it measures only reported crimes—and only a handful of crimes at that. Moreover, it isn’t our only measure of crime: We have the annual National Crime Victimization Survey; we have new data like ShotSpotter, which suggests very few gunshots are reported to police; we have victimization and drug overdose data from ERs and hospitals, and so on.
None of these tells the same story. From the 1960s to the 1980s, for example, the UCR was rising while the NCVS was falling. And it wasn’t necessarily that one was “right” and the other was “wrong,” but that they were measuring slightly different things which, when combined, tell a slightly different story than either one alone.
Across all these various data sources, we have a rough idea of the general trends in crime, but rarely if ever do people really try to put together this comprehensive picture. Instead, they tend to take the UCR as the objective measure of crime, which it isn’t. It’s quite useful, but it is just one snapshot of a complex phenomenon.
Tomorrow: In Part Two, Pfaff describes the revelatory moment—while reading datasets from the National Center on State Courts—that convinced him unchecked prosecutorial discretion had been overlooked as a fundamental cause of America’s prison population boom.
David J. Krajicek (@djkrajicek) is a contributing editor of The Crime Report. He welcomes comments from readers.
The Trump Administration’s official narrative that illegal immigrants pose a crime threat to the U.S. was undermined last week by the official figures released from Project New Dawn, ICE’s nationwide sweep of gang members. Nearly 70 percent of the more than 1,300 arrested were US citizens—and just 104 allegedly belonged to MS-13, the El-Salvador-based group that has been the focus of Washington rhetoric.
Earlier this month, US Immigration and Customs Enforcement (ICE) wrapped up what it called the largest anti-gang crackdown in the agency’s history. The six-week operation, dubbed “Project New Dawn,” nabbed more than 1,300 alleged gang members across the country, according to the official news release last week.
But a closer look at the suspects’ alleged affiliations suggests that, when it comes to the threat of Latin America-linked gangs in the United States—particularly the El Salvador-based Mara Salvatrucha-13 gang, known as MS13—recent rhetoric may not match reality
Of the 1,378 arrested, 1,098 were detained on “federal and/or state criminal charges” such as murder and sexual assault, while the other 280 were arrested on “administrative immigration violations.” Additionally, 933 of those arrested “were US citizens,” while 445 were “foreign nationals” from Central and South America, Asia, Africa, Europe and the Caribbean, the news release said.
Nearly 80 percent (1,095) of the arrestees were described as gang members or affiliates. ICE said that “137 were affiliated with the Bloods, 118 with the Sureños, 104 with the Crips, and another 104 with the MS13.” The remaining 283 individuals arrested “claimed no gang affiliation,” according to the official news release.
Throughout the six-week operation, the Homeland Security Investigative unit (HIS) and other law enforcement agencies seized “238 firearms, 22 kilograms of cocaine, 15.5 kilograms of methamphetamine, 3.2 kilograms of heroin, less than a kilogram of fentanyl, 227 kilograms of marijuana and almost $500,000 in US currency.”
Operations were carried out around the country, with the majority of them in the Houston, New York, Atlanta and Newark, New Jersey areas.
The activities of Latin America-linked gangs in the U.S., particularly the MS13, have been used as a rationale for the Trump Administration’s tough immigration policy. In fact, only a relatively small fraction of the arrestees allegedly belonged to the MS13—less than 10 percent, or 104 out of the more than 1,300 total.
Other gangs saw more of their alleged members arrested. For instance, 137 suspects were identified with the Bloods, a predominantly, though not exclusively, African-American street gang founded in Los Angeles. The next largest number (108) were identified with the Sureños, a predominantly Mexican-American street gang. Additionally, HSI arrested 104 suspected members of the Crips, another primarily African-American gang that was born in Los Angeles.
In other words, the vast majority of those arrested had no alleged affiliation with the MS13.
Yet, in many major US media outlets such as CNN, the administration’s rhetoric seems to be having an effect. Videos and photos associated with the MS13 were used to illustrate stories about the operation. Despite the fact that relatively few MS13 members were arrested, the gang somehow grabbed the headlines.
To be sure, the MS13 does maintain a violent presence in the US, which has been evident most recently in Suffolk County, New York where local police say the gang is behind at least 10 murders. In response, the New York state Senate approved a bill earlier this week targeting the MS13.
But the gang landscape in the US is extremely complex, which means **the disproportionate attention given to the MS13 may distract from more pressing gang-related problems.
For example, the Federal Bureau of Investigation’s (FBI) 2015 National Gang Report cited cross-border crime as a significant concern for law enforcement in the United States. And the Sureños, Barrio Azteca and Tango Blast gangs were identified as being the most involved in cross-border crimes, according to the report. While the report indicated that the MS13 was also involved in these crimes, it was not ranked as the primary cross-border threat. (See the FBI’s graphic below)
Courtesy InSight Crime
The outsized focus on the MS13 likely has more to do with US politics surrounding immigration policy than with the actual threat posed by the gang.
For instance, President Donald Trump recently tweeted (incorrectly) that the “weak illegal immigration policies” of his predecessor’s administration had contributed to the growth of MS13 in the United States. And Attorney General Jeff Sessions claimed that “years of lax immigration enforcement” had encouraged gangs to send “both recruiters and members to regenerate gangs” by “smuggling members across the border as unaccompanied minors.”
Yet again, the figures from the ICE operation cast doubt on these claims. Nearly 70 percent of those arrested were US citizens. Moreover, only 10 of the more than 1,300 people arrested as part of the operation—that is, less than 1 percent—had entered the country as unaccompanied minors. And only eight of those 10 were alleged to be affiliated with the MS13.
Consequently, it makes political sense for the president and his allies to promote a narrative that portrays the MS13 as the nation’s most severe gang threat. This narrative, however, risks obscuring the threats posed by other gangs, and potentially harms broader US anti-gang efforts in the long term.
Parker Asmann is a writer for InSight Crime, a websitespecializing in crime and security issues in Latin America. The above is a slightly edited version of an article published last week. Readers’ comments are welcome.
A new US government report on lesser-used drug trafficking techniques such as tunnels and ultralight aircraft further undermines claims that building a border wall will halt the flow of illegal drugs into the country.
A new US government report on lesser-used drug trafficking techniques such as tunnels and ultralight aircraft further undermines claims that building a border wall will halt the flow of illegal drugs into the country.
A Government Accountability Office (GAO) report released May 1 analyses the extent of several drug smuggling methods that have arisen in response to increased security on overland routes, and it assesses the efficacy of attempts to combat them.
The study focuses on underground tunnels, ultralight aircraft and maritime smuggling using open-hulled “panga” boats and recreational vessels.
Analyzing data from 2011 to 2016 from the Department of Homeland Security (DHS), the GAO identified a total of 67 cross-border tunnels, 534 ultralight aircraft incursions and 309 incidents involving panga or recreational boats during that period.
However, the report notes, the data suggests a general decline in the use of these tactics over that timeframe. For example, the number of tunnels discovered by DHS dropped by half, from 18 in 2011 to just nine in 2016. (See GAO graphic below)
All graphics courtesy InSight Crime
The types of tunnels analyzed vary from sophisticated and lengthy structures with electricity, ventilation and even railways, to rudimentary short and shallow holes.
Tunnel discoveries have been clustered around the southwest border, with over 90 percent made in the sectors of Tucson, Arizona or San Diego, California. Out of the 23 seizures made in connection with these tunnels, 21 of them involved marijuana.
The number of ultralight aircraft incursions registered by DHS dropped even more dramatically, from nearly 200 in 2011 to less than 30 in 2016. (See GAO graphic below)
The use of ultralight aircraft was also concentrated along the southwest border, with all but one incident taking place in either California, Texas, Arizona or New Mexico.
As with the tunnels, the aircraft were predominantly used to move marijuana, which accounted for 98 percent of associated seizures. The preference for marijuana is likely a result of the fact that most pilots work as subcontractors for drug traffickers and are financially responsible for the load, the report notes.
If, for example, a pilot lost 100 kilograms of cocaine, it would cost him much more than losing a 100 kilograms of marijuana, which is comparatively much cheaper by weight.
The number of registered smuggling incidents involving maritime vessels climbed from nearly 50 in 2011 to more than 80 in 2013, but fell to about 30 in 2016. (See GAO graphic below)
The most popular maritime method studied was the panga boat, which accounted for nearly 65 percent of the 309 logged incidents, with the rest involving recreational vessels. Around 76 percent of incidents took place on the West Coast, specifically California, with the rest spread around the southeast coast, northeast coast, and the southwest border.
Again, this smuggling method appears to be more popular for smuggling marijuana, which accounted for nearly 86 percent of connected seizures, compared to nearly 14 percent for cocaine and less than 1 percent for methamphetamine.
Not only have all of these smuggling methods seemingly declined in popularity in recent years; they also appear to account for a tiny percentage of total smuggling. In 2015, for example, DHS recorded just 49 seizures involving these methods out of 12,900 seizures overall.
InSight Crime Analysis
There are several conclusions to draw from the GAO report and each of them undermines the logic behind US President Donald Trump’s claims that building a wall along the US-Mexico border will significantly stem the flow of illegal drugs into the United States.
Firstly, the report demonstrates how these techniques remain minority methods, generally favored only for moving bulky shipments of marijuana. Moreover, they appear to be in decline even in the absence of a wall. The reason for this, as the US Drug Enforcement Administration (DEA) notes, is that by far the most common method of smuggling is still through official points of entry. Far from using underground railways or airdrops, most drugs enter the United States concealed in passenger vehicles or hidden among legitimate goods on freight vehicles, something that will not be significantly impacted by a border wall.
However, while these alternative methods remain relatively uncommon, they are also a reminder of the ingenuity and innovation of drug trafficking networks. This ability to react to the challenges posed by law enforcement also undermines the logic of Trump’s wall. While a physical barrier may impact another lesser-used, although still common form of smuggling— backpackers carrying drugs across on clandestine overland trails—traffickers are more than capable of adapting new methods to compensate.
Finally, the report offers advice on how US authorities could improve their organization and operations to better tackle these types of smuggling.
The suggestions vary widely, and include improving detection technology such as radars and sensors, administrative actions such as improving inter-agency coordination, and better techniques for gathering and analyzing information and intelligence. The report does not mention a physical barrier among the potential solutions to this problem.
The Crime Report is pleased to partner with InSight Crime, a site specializing in crime and security issues in Latin America. The above is a slightly edited version of an article published this week. Readers’ comments are welcome.
A study of the 990 incidents in 2015 in which deadly force was used by police and resulted in death has found that African Americans were more than twice as likely to have been unarmed during the encounter.
A study of the 990 incidents in 2015 in which deadly force was used by police and resulted in death has found that African Americans were more than twice as likely to have been unarmed during the encounter.
The authors of the study, published in the most recent volume of the American Society of Criminology’s Criminology & Public Policy journal, concluded that “implicit bias” was a critical factor leading to a police officer’s failure to judge whether such encounters represented a serious threat.
“Our analysis provides insight as to whether the implicit bias effect manifests itself in the real world where officer safety is an immediate concern,” claimed the study, co-authored by Justin Nix, Bradley A. Campbell and Edward H. Byers of the University of Louisville; and Geoffrey P. Alpert of the University of South Carolina and Griffith University.
“Although we could not determine whether officers were quicker or more likely to fire their weapon at minority suspects, we argue that if minorities were more likely to have not been attacking the police/other civilians, or more likely to have been unarmed, this would indicate the police exhibit implicit bias by falsely perceiving minorities to be a greater threat to their safety.”
The study is one of the first to take advantage of the national database of fatal police shootings compiled by journalists at the Washington Post. Like a similar database created by the Guardian newspaper, it represented the first effort to document the police use of deadly force on a national level.
The authors note that police use of force remains rare—and that fatalities resulting from it are even rarer. But they argue that their findings underline the need for “police departments (to) use training programs and community activities to minimize implicit bias among their officers.” And they call on the federal government to accelerate efforts towards creating a comprehensive national database on such incidents.
The full report is available free until early March at this site.
If former Oklahoma AG Scott Pruitt is confirmed as EPA chief, states are likely to face concerted efforts to preempt prosecutions of corporate polluters. Preparations for the legal struggles have already begun.
Perhaps nothing is as American as the ongoing struggle between the rights of states and the rights of the U.S. federal government. At the dawn of the Trump Presidency, an increase in litigation over the divergence between state and federal law seems almost certain, and the odds will increase if Scott Pruitt is confirmed as the next head of the Environmental Protection Agency (EPA).
In an increasingly complicated world of case law, the judiciary will ultimately decide the legality of present and future actions that could or could not comprise an array of corporate crimes. With the large number of court vacancies for Trump to fill, the edge will go to defining corporate crime down rather than defining corporate crime up. [See my January 4 Viewpoints column, “Defining Multinational Corporate Crime Down”.]
At the very heart of the litigation will be the interpretive use of “preemption”— the negation or displacement of state laws by federal laws. From coast to coast the fears are that the greenest rules and regulations established in places like California, New York, and Massachusetts will be nullified.
In these “greener” corners of the U.S., there are concerns that preemption will become the tool used by Trump and a Republican-controlled Congress to undermine federal and state regulations in general, and those of environmental protections in particular.
As a consequence, local or state rules that presently or in the future might exceed what are considered violations according to existing or new federal laws, will be prohibited—in effect, decriminalized by a lower common standard for all.
In preparation for an adversarial relationship with President Trump, for example, the Democratic Party-controlled California legislature has already hired former U.S. Attorney General Eric H Holder, Jr. to serve as its outside legal council. Holder will lead a team of attorneys from the New York law firm of Covington & Burling.
If the contradictory and often misquoted sayings are true that “the best defense is a good offense” and “the best offense is a good defense,” then retaining Holder and company was a very smart move.
After all, when it comes to defending powerful corporations from alleged criminality, Covington & Burling are among the best attorneys that money can buy.
And when it came to not prosecuting the bankers of Wall Street who imploded the global economy, who was better than Holder and another partner also on leave from C & B, the former head of the Department of Justice’s Criminal Division, Lanny Bruer, to lead the non-charge against those securities fraudsters?
The primary difference now is that the Holder team’s legal skills would be focused on behalf of the public interest, defending higher California standards and rules of protection, rather than working on behalf of those corporations that would violate these same laws.
Holder’s team will try to address potential conflicts between California and the new administration, especially around issues of climate change, environmental protection and global warming.
Riding in the crosshairs of these potential litigations are, for example, clean (or cleaner) cars, air and water. The prevailing standards are all at risk, especially if Pruitt becomes the next head of the EPA.
Not only does Pruitt distrust the fundamental mission of the EPA. But the former Oklahoma Attorney General has also spent much of his legal career suing the EPA for its allegedly overzealous regulatory interventions into dirty oil and gas production.
In total, Pruitt has filed 14 lawsuits challenging environmental regulations. He has also served as a leader of the Republican Attorney General Association. Since 2013, the association has raised $14.2 million from fossil-fuel companies, including Exxon Mobil, Koch Industries, Murray Energy, and Southern Company, which have also helped to finance his lawsuits against the government.
Preemption applies to virtually all forms of federal regulation, including the administration of health care, immigration, and consumer protection.
Preemption was also used in North Carolina to outlaw transgender protections in the city of Charlotte.
During the past eight years of the Obama Administration, with the visible exception of the coal industry, preemption had not been a major issue. The U.S. in early 2016 even signed the Paris Climate Change Agreement.
While it is still too early to know for sure how and whether the new Trump Administration and the Republican Congress will use preemption to roll back our health, safety and consumer protections, progressive states and cities are already lining up their ducks to resist the anticipated onslaught of legal assaults on regulation.
Gregg Barak is a 2017 Fulbright Scholar to Porto Alegre, Brazil and Professor of Criminology and Criminal Justice at Eastern Michigan University. He is the author of several books on crime and justice and the recipient of the National White Collar Crime Center’s Outstanding Publication Award for his 2012 book,Theft of a Nation: Wall Street Looting and Federal Regulatory Colluding. His latest book,Unchecked Corporate Power: Why the Crimes of Multinational Corporations are Routinized Away and What We Can Do About It, will be published in London and New York on March 3 by Taylor & Francis Group. He welcomes readers’ comments.