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Sense and Nonsense about Crime, Drugs, and Communities EIGHTH EDITION Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Sense and Nonsense about Crime, Drugs, and Communities EIGHTH EDITION Samuel Walker University of Nebraska–Omaha Australia • Brazil • Mexico • Singapore • United Kingdom • United States Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. This is an electronic version of the print textbook. Due to electronic rights restrictions, some third party content may be suppressed. Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. The publisher reserves the right to remove content from this title at any time if subsequent rights restrictions require it. For valuable information on pricing, previous editions, changes to current editions, and alternate formats, please visit www.cengage.com/highered to search by ISBN#, author, title, or keyword for materials in your areas of interest. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Sense and Nonsense about Crime, Drugs, and Communities, Eighth Edition Samuel Walker Product Director: Marta Lee-Perriard Product Manager: Carolyn Henderson Meier Product Assistant: Catherine Ryan Media Developer: Ting Jian Yap © 2015, 2011 Cengage Learning WCN: 02-200-203 ALL RIGHTS RESERVED. No part of this work covered by the copyright herein may be reproduced, transmitted, stored, or used in any form or by any means graphic, electronic, or mechanical, including but not limited to photocopying, recording, scanning, digitizing, taping, Web distribution, information networks, or information storage and retrieval systems, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without the prior written permission of the publisher. Marketing Manager: Kara Kindstrom For product information and technology assistance, contact us at Cengage Learning Customer & Sales Support, 1-800-354-9706. 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Purchase any of our products at your local college store or at our preferred online store www.cengagebrain.com. Printed in the United States 1 2 3 4 5 6 7 18 17 16 15 14 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Brief Contents PROPOSITIONS FOREWORD PREFACE PART PART PART PART PART I II III IV V VI x x iii THINKING CLEARLY ABOUT CRIME 1 1 Crime and Policy: A Complex Problem 2 Models of Criminal Justice 3 The Going Rate 4 The Prediction Problem 2 38 58 81 “GET TOUGH”: THE CONSERVATIVE ATTACK ON CRIME 5 Unleash the Cops! 6 Deter the Criminals 7 Lock ’Em Up 8 Close the Loopholes 133 161 196 9 Protect Crime Victims 226 10 Control Gun Crimes 252 REFORM: THE LIBERAL PRESCRIPTION 11 Treat ’Em! 12 Gain Compliance with the Law 225 281 282 THE DRUG PROBLEM 315 335 Sense and Nonsense about Drugs and Crime 336 PUTTING IT ALL TOGETHER: CRIME AND COMMUNITY 14 99 100 THE MIDDLE GROUND: GUNS AND VICTIMS 13 PART x viii x xi Crime and Community: Putting It All Together 369 370 v Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Contents PROPOSITIONS FOREWORD PREFACE PART I xviii xxi xxiii THINKING CLEARLY ABOUT CRIME 1 1 Crime and Policy: A Complex Problem Crime Trends: Conflicting, Confusing The Great American Crime Drop 3 Is the Crime Drop Genuine? 2 2 5 Explaining the Crime Drop 5 The Purpose of This Book 6 Problem-Oriented Crime Policy 7 Contextual versus Policy Factors 10 The New Standard: Evidence-Based Crime Policy 12 Understanding Crime and Justice in the United States Crime Problems in the United States 15 Waging War on Crime 16 The Racial Dimensions of the War on Crime 14 18 Waging “War” Is the Wrong Way to Deal with Crime A “Social Ledger” of Crime Policy 21 Crime Policy: A Plague of Nonsense 20 22 The Ground Rules 23 What Do We Mean by Crime Prevention? 24 vii Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. viii CONTENTS The Question of Reasonable Goals Guilty: Liberals and Conservatives Crime Control Theology 26 Conservative Theology 24 26 27 Liberal Theology 29 A Word about Rules 30 Ideological Confusion: Switching Sides Conclusion 32 Notes 2 31 32 Models of Criminal Justice 38 The Crime Commission’s Model 41 The Criminal Justice Wedding Cake 43 “Celebrated Cases”: The Top Layer 44 Serious Felonies: The Second and Third Layers 47 An Example of the Complexity of the System: “Back-End Sentencing” in California 48 The Impact of Prior Record 49 The Impact of the Victim–Offender Relationship Prior Relationship: A Policy Dilemma 51 49 Hard or Soft on Crime? Unraveling the Paradox 52 The Lower Depths: The Fourth Layer Conclusion 54 Notes 3 53 54 The Going Rate 58 Evaluating the System 58 The Criminal Justice Funnel 59 A Closer Look Inside the Funnel 62 Weeding out the Weak Cases: Rejections and Dismissals Sentencing: The Going Rate Gets Tougher 63 66 How Do We Compare? An International Perspective on the Going Rate 67 The Courtroom Work Group 69 An Administrative System of Justice The Limits of Reform 69 71 The Dynamics of Reform 73 Justice Thermodynamics 73 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. ix CONTENTS Wrongful Convictions: How Common Are Mistakes? Conclusion Notes 78 4 75 77 The Prediction Problem 81 The Risk Assessment Tradition 82 Searching for the Career Criminal Wolfgang’s Birth Cohort 83 Other Cohort Studies 83 85 Career Criminals: Defining Our Terms and Concepts From Research to Policy 87 Application Problems 88 Confronting the Prediction Problem 86 89 Looking for Violent Delinquents: The Wenk Study The Texas Death Row Inmate Study 91 The Federal Sentencing Guidelines 89 91 The Rand Selective Incapacitation Study 92 How Much Crime Do They Commit? 94 Conclusion Notes 96 PART II 96 “GET TOUGH”: THE CONSERVATIVE ATTACK ON CRIME 5 Unleash the Cops! 99 100 More Cops on the Street 101 Some Basics about Police Patrol and Crime 101 The Deterrent Effect of Patrol: Lessons of the Kansas City Experiment 103 Understanding Police Patrol and Deterrence 104 The All-Seeing Eye: CCTV 105 Police “Crackdowns” on Crime 106 Crackdowns 106 A Different Kind of Crackdown? The NYPD Stop-and-Frisk Controversy 107 Faster Response Time 109 Smart Policing: Promising Futures 110 Problem-Oriented Policing 111 Compstat: Data-Driven Policing 113 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. x CONTENTS Focused Deterrence, or “Pulling Levers”: The Most Effective Response? 115 Operation Ceasefire: The Boston Gun Project 115 Cincinnati Initiative to Reduce Violence 116 A Few Words of Caution about Police Innovations 117 Predictive Policing: Science or Just the Latest Fad? 117 Drones: The Police Patrol of the Future? 118 More Detectives and Better Detective Work 119 Myths and Realities of Detective Work 119 The Science of Crime Detection: Fingerprints and Other Popular Myths 121 Eliminate the “Technicalities” 122 Repeal the Exclusionary Rule? 122 Abolish the Miranda Warning Conclusion 127 Notes 6 125 127 Deter the Criminals Deterrence Theory 133 133 Assumptions Underlying Deterrence 134 From Theory to Practice: Deterrence in the Real Word of Criminal Justice 136 Communicating the Message 136 Understanding the “Costs” of Crime 138 The Perceived vs. the Real Risk of Punishment 139 Choosing Crime: The Rational Criminal? 140 Scare the *%!#@ out of Them! 141 A Famous but Failed Program 141 Deterrence and the Death Penalty Sorting out the Issues 142 142 Executions and Crime: The Debate Continues Deterring the Drunk Driver 144 The “Killer Drunk” and Other Myths 143 145 Deterrence and Drunk Driving 147 Drunk Drivers in Court 149 A Multipronged Strategy for Dealing with Traffic Fatalities Ignition Interlock Systems: Focused Incapacitation? 154 Specialized DUI Courts 151 155 Copyright 2015 Cengage Learning. 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Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xi CONTENTS Conclusion Notes 7 156 157 Lock ’Em Up 161 Getting Criminals off the Street 161 Jail Not Bail: Preventive Detention 162 Crime on Bail: Myths and Reality 165 The Prediction Problem Revisited 166 A Comment on Preventive Detention and Mass Incarceration 168 Speedy Trial: A Better Way 168 Incapacitation as a Crime Policy 169 Selective Incapacitation: The Rand Formula 169 Gross Incapacitation: Zedlewski’s New Math 172 Incapacitation: A Sober Estimate 173 Selective Incapacitation Reborn 175 Mandatory Sentencing 176 “The Nation’s Toughest Drug Law” 177 The Real Impact of the Rockefeller Drug Law 179 The Special Case of the Federal Mandatory Minimums The Growth of Life without Parole 181 Mandatory Sentencing and Crime 180 182 Three Strikes—We Are All Out 183 Implementation and Impact of Three-Strikes Laws 184 Summary: Striking Out 185 Just Keep Them Away from Us: Sex Registration and Notification Laws 186 Enforcement Problems Summary 190 188 Conclusion 190 Notes 191 8 Close the Loopholes 196 Prosecute the Career Criminal 196 Does a Special Prosecutorial Unit Make a Difference? 197 The San Diego Major Violator Unit 197 Abolish the Insanity Defense 199 An Insanity Defense Loophole? 200 Copyright 2015 Cengage Learning. 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Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xii CONTENTS Sorting out the Issues 200 The Reality of the Insanity Defense Aftermath of Acquittal 202 Danger to the Community 200 203 Abolish the Insanity Defense? 203 Abolish or Reform Bargaining? 207 Day-in, Day-out Plea Bargaining 208 Abolishing Plea Bargaining: Alaska Tries 209 Reforming Plea Bargaining in King County, Washington Plea Bargaining and Crime 213 Evading Harsh Mandatory Sentences: Two Case Studies 211 214 The Case of Sex Offender Notification Laws 214 The Supreme Court Rules on Plea Bargains: New Day or Business as Usual? 215 Restrict Appeals 217 Limiting Appeals 218 The Reality of Postconviction Appeals Two Limits on Appeals 219 218 Conclusion 220 Notes 221 PART III THE MIDDLE GROUND: GUNS AND VICTIMS 9 Protect Crime Victims 225 226 Victims in the Criminal Justice System 226 The Crime Victims’ Rights Movement 226 The Historical Background 227 The Goals of This Chapter 228 Victims’ Rights Today: Laws and Programs 228 Constitutional and Statutory Guarantees of Victims’ Rights Victims’ Services 229 Evaluating the Impact of Crime Victims’ Laws and Programs Victims’ Rights and Crime 230 Serving Special Populations of Crime Victims Women 232 People with Disabilities 228 230 231 235 Juvenile Runaways and Thrown-aways 236 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xiii CONTENTS People Who Are Elderly 236 Native Americans 238 Victims’ Programs and Services Victim Notification 238 238 Victim/Witness Assistance Programs 240 Protecting Victims from Harm 241 Expanding the Victim’s Voice 241 Post-Conviction Services 243 Victim Compensation Programs 243 Ensuring Professionalism in Victim Services 244 Evaluating the Impact of Victim Programs and Services 245 “Getting Tough” on Crime: Does It Help Crime Victims? Conclusion 247 Notes 247 10 Control Gun Crimes 252 The Problem with Guns—and Gun Policy Gun Violence in Perspective Sorting out the Issues 255 246 252 253 Policy Options 255 Which Firearms Are We Talking About? 256 The Political Context: Public Attitudes about Guns and Gun Violence 256 Gun Ownership and Gun-Related Violence Gun Ownership 257 Gun-Related Laws 258 The Supreme Court and Gun Ownership Gun-Related Laws and Regulations 257 258 259 The Policy Options 259 Ban Handguns 259 Ban Assault Weapons 262 Summary on Banning Firearms 263 Regulate the Sale and Possession of Handguns Regulate Gun Dealers 263 Background Checks: The Brady Law 264 263 The Gun Show Exception: A Loophole? 266 State-by-State Variations in Laws and Enforcement 266 Summary on Regulating the Sale of Firearms 267 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xiv CONTENTS Keeping Guns Away from Special Locations: Airports and Schools 268 Airports 268 Schools 268 More Guns? Less Crime? 269 The “Stand-Your-Ground” Law Controversy 271 Get Tough on Guns and Gun-Related Offenses 272 Tough Sentencing in Detroit: An Early Experiment 272 Promising Approaches to Reducing Gun Violence The Kansas City Gun Experiment 273 The Boston Gun Project: A National Model 273 274 Conclusion 276 Notes 276 PART IV REFORM: THE LIBERAL PRESCRIPTION 11 Treat ’Em! 281 282 Rehabilitation or Correcting Criminals 282 The Philosophy of Rehabilitation 282 Old and New Programs 283 New Developments in the Field 283 The “Nothing Works” Controversy 283 The Prediction Problem Revisited 285 Traditional Rehabilitation Programs 285 Probation 286 The Effectiveness of Probation Parole 288 286 Does Parole Work? 289 Does More Make It Better? 291 Perverting Parole: Crisis in California Diversion 292 293 The Original Model: The Manhattan Court Employment Project 294 The Net-Widening Problem 295 Do Diversion Programs Rehabilitate? 296 The New Intermediate Punishments 297 The Rise and Fall of Boot Camps 298 What Is a Boot Camp? 298 Copyright 2015 Cengage Learning. 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Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xv CONTENTS Home Confinement and Electronic Monitoring 300 Lessons of the Intermediate Punishment Movement Confused Goals 302 301 A Conservative Alternative: Faith-Based Treatment 303 Sorting out the Issues 303 Are Faith-Based Programs Effective? 304 Drug Courts: A New Approach 305 What Are Drug Courts? 306 Are Drug Courts Effective? 306 The Dangers of Over-Expansion 307 New Directions: Evidence-Based Policy in Probation and Parole 308 Conclusion 310 Notes 12 310 Gain Compliance with the Law 315 The Basis of an Orderly Society 315 Compliance with the Law 315 Legitimacy and Compliance 316 Sources of Legitimacy 316 Justice versus Punishment 317 The Evidence on Procedural Justice in the Criminal Justice System 318 The Evidence from Policing 318 The Evidence from Drug Courts 320 The Evidence from Criminal Courts 321 The Evidence from Victims’ Services Programs 321 Does Procedural Justice Work? A Meta-Analysis 322 Building Legitimacy 322 Reducing Police Misconduct and Building Fair and Respectful Policing 323 Procedural Justice in the Courts 327 Prisons and Imprisonment 327 The Criminal Law and Legitimacy: Decriminalization Conclusion 330 Notes 328 331 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xvi PART CONTENTS V THE DRUG PROBLEM 13 335 Sense and Nonsense about Drugs and Crime 336 Drugs and Drug-Related Crime 336 Myths and Realities about Drug Use and Drug-Related Crime 337 The Drug Hysteria Problem 337 The Extent of Illegal Drug Use 337 The Drug–Crime Connection 339 The Drug Policy Choices 342 The War on Drugs: Policy and Consequences Drug Supply–Reduction Efforts 344 Street-Level Police Drug Enforcement Efforts Interdiction and Eradication 345 Tougher Sentencing 342 344 346 Limits of the Criminal Law: The Lessons of History The Lessons of History 348 When Social Control Does Work 349 Demand Reduction: Drug Abuse Education “Just Say No” 350 DARE: Success or Failure? 353 354 The Promise of Drug Courts Legalize Drugs? 358 Varieties of Legalization 350 352 But Some Education Programs Do Work Drug Treatment 354 Varieties of Treatment 347 357 359 The Impact of Legalization 359 A Specific Legalization Proposal 360 Conclusion 362 Notes 362 PART VI PUTTING IT ALL TOGETHER: CRIME AND COMMUNITY 369 14 Crime and Community: Putting It All Together The New Community Focus on Crime Control 370 The New Operating Principles 370 371 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xvii CONTENTS The Theoretical Background 373 The Empirical Basis 374 The Evidence of Effective Crime Policies The Evidence from Policing 375 375 The Evidence from Community Courts Offender Reentry Programs 380 376 The Challenge of Returning Offenders Reentry and Legitimacy 384 380 The Way Forward? The Justice Reinvestment Initiative The Alternative of Restorative Justice 388 Conclusion Notes Index 386 390 391 395 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Propositions 1. Most current crime control proposals are nonsense. 2. Waging “war” is the wrong way to fight crime. 3. Both liberals and conservatives are guilty of peddling nonsense about crime. 4. Most crime control ideas are based on false assumptions about how the criminal justice system works. 5. It is not possible to precisely predict future criminal behavior in a way that will significantly reduce crime. 6. Simply putting more cops on the street will not reduce crime. 7. Faster response time will not produce more arrests or lower the crime rate. 8. Carefully planned and focused problem-oriented policing strategies can be successful in reducing crime and disorder. 9. More detectives, or other changes in detective work, will not raise clearance rates or lower the crime rate. 10. The Supreme Court rulings in Mapp and Miranda are not significant barriers to effective crime control by the police. 11. Deterrence-oriented crime policies are not likely to reduce serious crime. 12. The death penalty does not deter homicides. 13. Enforcement crackdowns do not deter drunk driving over the long term. 14. A multipronged strategy, including using noncriminal justice programs, have proven effective in reducing traffic-related fatalities. 15. Preventive detention will not reduce serious crime. 14 20 26 39 94 105 110 116 122 127 141 144 151 156 168 xviii Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROPOSITIONS 16. Incapacitation, whether selective or gross, is not a realistic strategy for reducing serious crime. 17. Mandatory sentencing, in all of its forms, is not an effective means of reducing serious crime. 18. Sex offender registration, notification, and residency restriction laws are not effective in preventing repeat sex crimes and in certain respects inhibit effective control and treatment of offenders. 19. Special prosecution units do not produce either higher conviction rates or lower crime rates. 20. Abolishing or limiting the insanity defense will have no impact on serious crime. 21. Abolishing or even significantly reforming plea bargaining will not reduce serious crime. 22. Limiting habeas corpus appeals of criminal convictions will have no effect on serious crime. 23. Most victims’ rights laws and programs are worthy ideas that were long overdue. Only a few, however, provide the kind of direct services that are likely to reduce crime. 24. Attempts to ban the possession of handguns, or certain kinds of guns, are not a viable option for reducing crime. 25. Laws that seek to keep guns out of the hands of criminals and the mentally ill have at best some limited effect but are easily evaded by the black market in guns. 26. Laws designed to allow more people to carry guns and laws that allow them to use their guns in a greater range of circumstances are more likely to increase rather than reduce homicides. 27. Carefully designed and focused programs directed toward a small group of known offenders have been found to be effective in reducing gun violence. 28. Probation and parole have their proper places in the criminal justice system, but there is no evidence of any programs likely to make them more effective in reducing crime. 29. Traditional diversion programs do not reduce serious crime. 30. Home confinement and electronic monitoring do not reduce crime. 31. There is little persuasive evidence that faith-based treatment programs are any more or any less effective in reducing crime than are secular treatment programs. 32. Carefully designed and well-managed drug courts are a promising treatment program that have demonstrated their effectiveness in reducing crime. xix 175 186 190 199 206 217 220 247 263 267 272 276 293 297 301 305 308 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xx PROPOSITIONS 33. The evidence-based corrections movement is an important development, but at this point, the jury is still out on whether it will help reduce crime. 34. Enhancing legitimacy is an important, and indeed necessary, strategy for reducing crime. 35. Drug courts are a promising approach to reducing both drug use and crime among criminal offenders. 36. The impact of legalizing drugs on serious crime is not known at this time. 310 330 358 361 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Foreword S hortly after its initial publication, Samuel Walker’s Sense and Nonsense about Crime was recognized as an important new book, a substantive contribution to the literature on crime and justice. Over the years, he has reworked its themes and developed its arguments in five more editions (updating the title to reflect an expanded discussion of drugs and drug policy in the third edition), and the field’s appreciation of this book has only increased. Today, it is a major text in the study of crime and justice; some call it a nascent classic work in its field. It is a respected argument about our knowledge base for crime and justice, and it is one of those rare books that are deeply respected by scholars and policymakers alike. It is, therefore, with extraordinary pleasure that I welcome the eighth edition to the Wadsworth Contemporary Issues in Crime and Justice Series. The series is devoted to giving detailed and effective exposure to important or emerging issues and problems that ordinarily receive insufficient attention in traditional textbooks. The series also publishes books meant to provoke thought and change perspectives by challenging readers to become more sophisticated consumers of crime and justice knowledge. If you are looking for a book that will make you an informed student of crime and justice policy and practice, you could not do better than the one you are now holding. Why is this book so important? There are two reasons. First, so much of what is commonly believed about crime—and so much of what shapes public policy on crime—is nonsense. Second, Walker’s book was the first (and is still the most effective) book written to point that out. The book provides a masterful critique of the U.S. penchant for short-sighted, metaphorical strategies to prevent crime (boot camps are a good example) or feel-good rhetoric about crime priorities (end poverty, end crime) that have, over the years, not gotten us far in our pursuit of a safer society. Today, we are enjoying a welcome, sustained national drop in crime rates. But this drop still leaves us with higher rates of crime than we want, and (perhaps more xxi Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xxii FOREWORD to the point) the source of the drop is more of a mystery to us than a lesson in crime prevention policy. The contribution of this book—what makes this book special—is its willingness to show evenhandedly how favorite strategies of diverse political agendas have as their foundation some degree of “nonsense.” If there is a lesson that this book brings to us repeatedly, it is that cherished images of crime and justice are flawed, inaccurate, and doomed to fail for particular reasons of the more or less well-known facts that we so often want to ignore to sustain our favorite ideologies. This book challenges us where we need to be challenged: in our willingness to ignore reality to nurture our frequently inadvisable pet ideas about crime and crime fighting. You want your police to be tough, to chase dangerous criminals, to make life-saving arrests? Well, Professor Walker points out that you have to contend with the fact that police spend little of their time acting in this way, and even when they do, not much in the way of crime control seems to result. You want your judges to lock’em up and throw away the key? Walker shows all the ways that this belief is expensive and ineffective, even counterproductive. You think we need to save money through closer surveillance of the people convicted of crime? Make our lives safer by treating juveniles as though they were adults? End drug abuse through an all-out war on drugs? Here again, the book sheds cool light on hot emotions, showing how such strategies can backfire. This book is not, however, just about nonsense in crime and justice. Perhaps nonsense gets the majority of the attention because so much of what we do is based on faulty thinking. But Walker is willing to tell us what makes “sense” as well. Big proposals lack much support, and politically popular proposals may be downright silly. But there are smaller, less ambitious ways in which we can contribute to a safer society, and we can do so without suspending our constitutional rights or giving up our public freedoms. One way we have learned to be smarter about crime is through the philosophy of evidence-based practice. This approach asks hard questions about criminal policy, seeking to base crime strategies on established studies that show those policies will work. Professor Walker applies the evidence-based criterion to his review of crime and justice policy: what emerges is a powerfully dispassionate analysis that gives us a carefully crafted challenge to start “making sense” in the way in which we talk about crime and develop policies to cope with it. If you are getting ready to read this book, chances are you are contemplating a career in the field of criminal justice. At the very least, you have an informed citizen’s interest in the problems of crime and justice. In either case, you have come to the right place to become more knowledgeable in your pursuits. After you read this book, you will join a large number of its alumni, dedicated to crime policies that make sense. I commend you. Todd R. Clear Series Editor Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Preface T he eighth edition marks the thirtieth anniversary of Sense and Nonsense about Crime. Much has changed over those thirty years in U.S. society and in criminal justice. It has been an exciting challenge to keep pace with those changes and make sure that this edition is relevant to current developments. When the first edition appeared, crack was just beginning to appear on the streets of the United States. One result was an epidemic of gun violence among young men. Some criminologists predicted that youth homicides would continue to soar. They didn’t. Instead, serious crime, including homicide, began a completely surprising decline that is unprecedented in the United States. In New York City and other cities, violent crime has dropped to levels not seen since the early 1960s. Keeping track of these changes, and attempting to explain them, has been an important but necessary task. When the first edition of this book appeared, policymakers and criminologists were in the midst of a fierce debate over “career criminals.” The questions of the day were how to identify that small group of offenders and what would be the impact of different policies that targeted them. You don’t hear much about career criminals today, however. Policies that were hot new ideas twenty-five years ago did not work out, criminological research undermined most of the underlying assumptions, and the policy debate has moved on. The eighth edition of Sense and Nonsense continues the expanded title Crime, Drugs, and Communities, which is the second change in the subtitle since the first edition. These changes reflect my efforts to keep the book relevant to the changing world of crime and criminal justice. The focus on communities began with the sixth edition and is now incorporated into the expanded title, Crime, Drugs, and Communities. As various chapters explain, some of the most important innovations in crime policy have a community focus: problem-oriented policing, community policing, community prosecution, focused deterrence programs, xxiii Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xxiv PREFACE and now a new emphasis on community reinvestment as a strategy for better dealing with offenders released from prison. The new edition continues the “nonsense” theme of the first edition. We continue to have crime policies that are not supported by empirical evidence and which, in many cases, only make matters worse. Chapter 7, for example, covers sex offender registration and notification laws, which often include restrictions on where sex offenders can live. As you will learn, these requirements cover many offenders who are not going to be dangerous predators. As a result, law enforcement and corrections officers carry huge caseloads and struggle to focus on the few offenders who really do pose a possible risk to the community. Other new policies that seem to have little empirical support continue to appear. This is the latest in “predictive policing.” Our discussion is highly critical of it. Time will tell whether it proves to have some value or whether it is simply one more item in the long list of nonsense policies. At the same time, this edition puts a greater emphasis on the “sense” theme. There is growing evidence that some programs actually do work, because they are solidly rooted in the best criminological research. People often ask if academic research ever makes a practical contribution to crime policy. The answer is that yes, some of it does. As you will learn, there is an emerging consensus that some —but not all—problem-oriented policing programs, drug courts, and community prosecution programs can be effective. Most interesting, as you will learn in Chapter 6, is that focused deterrence programs have been found to be effective because they differ significantly from traditional deterrence-oriented programs. The emergence of crime policies that have been found to be effective through rigorous evaluation is an extremely exciting development. If nothing else, it demonstrates the maturity of the field of criminology, and the new standards for effectiveness that have developed. Future editions of this book will assess whether this promise is fulfilled in practice. New elements in the Eighth edition include the following: Chapter 1 includes up-to-date information about gun violence, including mass shootings and the gun violence crisis in Chicago; a new Sidebar on “fads” in crime policy, citing issues that were current in older editions of the book but have since faded away; an expanded discussion of evidence-based crime policy; a provocative new sidebar on the argument that lead in the environment explains long-term crime trends. Chapter 2 contains discussions of both the Sandy Hook School shooting and the George Zimmerman trial to illustrate the celebrated case syndrome; the most recent data on school safety to illustrate the gap between public perceptions of violent crime and the empirical reality. Chapter 3 has been substantially revised to provide a better discussion of long-term imprisonment trends, with a discussion of “mass incarceration,” as well as the new developments that indicate a change in the public mood. Chapter 4 replaces the outdated emphasis on career criminals with a more relevant focus on the prediction problem in criminal justice. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PREFACE xxv Chapter 5 has been reorganized to put all of the various “smart policing” efforts in a broader perspective; additional information of focused deterrence programs; new material on the Boston Marathon bombing in the discussion of closed-circuit television (CCTV) systems as a deterrent to crime; brandnew discussions of both “predictive policing” and the potential role of drones as a form of police patrol; a critical discussion of the recent “reinvestment” proposal to shift public funding from imprisonment to innovative police programs. Chapter 6 has an important discussion the recent National Academy of Sciences report on deterrence and the death penalty and its implications for the entire theory of deterrence. This chapter also has an important new section of special DUI courts that are modeled after drug courts, which have proven to be effective. Chapter 7 has been completely revised to provide a more coherent discussion of trends in sentencing over the past few decades and the evidence of a new turn in state sentencing laws against the overuse of incarceration. Chapter 8 has a new critical discussion of the two 2012 Supreme Court decisions on plea bargaining, which some people believe will have a radical effect on the practice, whereas others disagree. Chapter 9 has been completely rewritten and reorganized, with a new emphasis on “special populations” of crime victims: women, the elderly, and juvenile runaways and thrown-aways. Chapter 10 has been updated with discussions of the important recent mass shooting cases and the George Zimmerman trial. There is a new sidebar on “Stand-Your-Ground” laws and the evidence on their impact. There is also a new discussion of guns and the mentally ill. Chapter 11 has a greatly expanded examination of drug courts and a discussion of why they are often more effective than other treatment programs. Chapter 12 has been completely reorganized and rewritten to focus on procedural justice and the prospects for securing greater compliance with the law. Chapter 13 includes new material on the impact of the Mexican drug cartels on crime and violence in the United States. Chapter 14 continues and expands the discussion begun in the seventh edition that draws on the promising new developments discussed in the book that have demonstrated effectiveness, including focused deterrence, drug courts, and procedural justice. Ancillaries eBank Instructor’s Resource Manual with Test Bank. The manual includes learning objectives, key terms, a detailed chapter outline, discussion topics, and a test bank. Each chapter’s test bank contains questions in multiple-choice, true– false, fill-in-the-blank, and essay formats, with a full answer key. The test bank is Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. xxvi PREFACE coded to the learning objectives that appear in the main text, and includes the page numbers in the main text where the answers can be found. Finally, each question in the test bank has been carefully reviewed by experienced criminal justice instructors for quality, accuracy, and content coverage. The manual is available for download on the password-protected web site and can also be obtained by e-mailing your local Cengage Learning representative. Dedication I would like to dedicate this book to Mary Ann Lamanna, who has been a wonderful companion over thirty years. But despite the demands of her own publishing deadlines over the years, she knows that there is always time for a movie. About the Author Samuel Walker is Professor Emeitus of Criminal Justice at the University of Nebraska–Omaha, where he taught for thirty-one years. He is the author of fourteen books on policing, criminal justice history and policy, and civil liberties. His most recent books include Presidents and Civil Liberties from Wilson to Obama (2012) and The New World of Police Accountability, 2nd. ed. (Sage, 2014). He continues to write and consult on issues of police accountability, focusing primarily on citizen oversight of the police and police early intervention systems. Samuel Walker Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PART I Thinking Clearly about Crime Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 1 Crime and Policy: A Complex Problem CRIME TRENDS: CONFLICTING, CONFUSING Crime trends in the United States are conflicting, confusing, and seemingly contradictory. Murders in Chicago soared to 513 in 2012, which was up from 448 in 2010, and the dramatic increase in violent gun deaths made national news. But in New York City, murders (and all crime) fell to a level not seen since the 1960s. Violent crime was up in Baltimore but down in Washington, DC just sixty miles away.1 Other contradictions are easy to find. Mass shooting incidents such as the 2012 Sandy Hook School massacre in which twenty-six people died seem to be on upsurge. Earlier in the 2012 movie multiplex shooting in Aurora, Colorado, James Holmes shot and killed twelve people and wounded fifty-eight others. His weapons included a shotgun, a semi-automatic rifle, and a Glock 22 handgun. In 2011, Congresswoman Gabby Giffords was seriously wounded, six people died, and eleven others were wounded in a shooting in Tucson, Arizona. These horrific shooting incidents, however, occurred in the context of a long-term decline in violent crime, including homicides. One part of that decline was a dramatic reduction in domestic violence. Between 1994 and 2010 the rate of intimate partner violence fell from 9.8 to 3.6 per 1,000, which is a decline of 63.6 percent.2 The decline in domestic violence is only one part of a broader decline in both violent and property crimes that began in 1993. According to Uniform Crime Reports (UCR), the robbery rate fell from a peak of 272.7 per 100,000 in 1991 to 112.9 in 2012. The burglary rate also fell by half from its peak in 1974 to 2010. It is true that the National Crime Victimization Survey (NCVS), an alternative measure of crime, reported a 15.4 percent increase in violent crime in 2012 compared to 2011, and this is cause for concern that should be 2 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 3 Rate per 1,000 persons age 12 or older 100 80 60 Total violent crime Not reported to police 40 20 Reported to police 0 '93 '94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06* '07 '08 '09 '10 '11 '12 F I G U R E 1.1 Violent victimization reported and not reported to police, 1993–2012. *See original report for cautions about using 2006 data. SOURCE: Bureau of Justice Statistics, Criminal Victimization, 2012 (Washington, DC: Department of Justice, 2013). monitored closely, but the important story is the broader 18.7 percent decline in violent crime between 2003 and 2012, a trend that reflects the all-important Great American Crime Drop.3 The contradictions in crime trends have an important racial dimension. In the Chicago homicides, young African American men are both the primary offenders and the victims. But by contrast, in virtually all of the mass shooting cases, the perpetrators were young white males, and all but a few of the victims were white. At the same time, however, for domestic violence homicides, African Americans enjoyed the same significant decline in vicitimzations as white Americans, and enjoyed an even greater reduction in that violence than whites. As we begin our search for sensible and effective crime policies in this book we must continually be aware of the often surprising contradictions regarding crime and victimization in the United States.4 THE GREAT AMERICAN CRIME DROP The dramatic decline in crime since the early 1990s is a historic event, the longest and largest since we began keeping national statistics on crime. We call this event The Great American Crime Drop. With the exception of some cities, and certain parts of many cities, Americans are much safer today than they were twenty years ago. In New York City, murders fell from an astonishing 2,260 in 199 to only 416 in 2012. The number of murders was the lowest since the 1960s. On the west coast, there were only 38 murders in 2011 in San Diego, compared with 167 in 1991.5 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 4 CHAPTER 1 The crime drop seems like a miracle to many Americans. For the first time in a generation, there is good news about crime and violence. When crime rates began to soar around 1963, crime ripped the social fabric of the United States and became a major issue in U.S. politics. In addition to the harm inflicted by particular crimes—murder, robbery, and rape—crime devastates our communities, instilling fear and causing people to move out of their neighborhoods. In the political realm, moreover, the issue of “crime” became intertwined with race, aggravating the racial polarization of U.S. society.6 Illustration by Frank Irwin, © Wadsworth, Cengage Learning. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 5 Is the Crime Drop Genuine? Some skeptics question whether the crime drop is genuine, suggesting that it might be a fluke, a temporary blip, or statistical manipulation. These doubts are no longer valid. All of the evidence indicates that the crime drop is indeed real. First, the NCVS is regarded as a reliable measure of criminal activity. No criminologist has ever suggested that the data are manipulated or methodologically flawed. Second, the NCVS trends have continued for twenty years and cannot be dismissed as a temporary phenomenon. Third, even though the FBI’s UCR uses a different methodology, and does not measure all crimes committed, it too has reported significant declines in crime over the past five to twenty years.7 Explaining the Crime Drop How do we explain the Great American Crime Drop? What are the causes? Criminologists and policy analysts have hotly debated these questions. The advocates of particular policies all argue that it was their favored approach: increased incarceration, community policing, a decline in the use of crack cocaine, a stronger economy, and so on. Franklin Zimring offered a fresh perspective on this debate with the simple idea of comparing crime trends in the United Sates to other countries. What he found puts the Great American Crime Drop in a useful perspective. Zimring found that in the decade of the 1990s, several countries experienced declines in crime. The most important example is Canada, where crime went down in six of the seven UCR categories. Canada is a particularly useful comparison for us because it is contiguous to the United States, shares a common language (with the partial exception of French-speaking Quebec) and culture, and the two countries have close economic relations. If crime trends in the two countries are so similar, the changes in the United States cannot be readily explained by unique U.S. factors such as police strategies or imprisonment trends. Let’s take a closer look at this issue.8 The United States and Canada began the decade of the 1990s with different levels of crime, especially violent crime. The murder and robbery rates in the United States were far higher than in Canada. That is a basic fact about crime in the United States: it has high levels of violent crime compared with other industrialized countries. Nonetheless, it is the similarity in the declines in the two countries that commands our attention. The most important issue involves imprisonment. The prison population in the United States soared in the 1990s, increasing 57 percent, while it dropped 6 percent in Canada.9 Although this hardly settles the debate, it calls into question the role of incarceration on the Great American Crime Drop. How could Canada get roughly the same results by moving in the opposite direction on imprisonment? A similar problem arises with regard to the number of police. The Community Oriented Policing Services (COPS) program provided federal funds to increase the number of police officers in the United States by something like sixty to seventy-five thousand. Some analysts estimate that this represented a Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 6 CHAPTER 1 14 percent increase in the police-to-population ratio. In Canada, meanwhile, the ratio fell by an estimated 10 percent. These data make it difficult to argue that increasing the number of police officers contributed to the Great American Crime Drop. A similar problem exists with regard to economic factors. While the Canadian economy improved, just as it did in the United States, unemployment was consistently higher than in the United States throughout the period. Yet, crime went down just as it did in the United States despite an indicator that suggests it should not.10 In the end, how then do we explain the “extraordinary parallels” in crime trends in the two countries? The “central puzzle,” Zimring argues, lies in the fact that Canada experienced a greater decline “than could be explained by any visible causes.” He concludes that it might involve broad changes in behavior that are beyond the reach of social science to explain. In short, there are no “easy explanations.” The absence of easy explanations is extremely important and is a theme that runs through this book. Criminal behavior is extremely complex, and so is the administration of justice that has at least some effect on crime. The basic lesson is that we should always be on guard against simple answers; and also be careful about jumping to conclusions based on short-term data, and be wary of anyone claiming that their favorite crime policy is responsible for some recent good news. In a collection of articles in The Crime Drop in America, Al Blumstein and Joel Wallman reach a conclusion roughly similar to Zimring’s, arguing that “no single factor can be invoked as the cause of the crime decline in the 1990s.”11 It is too early for us to throw up our hands and say we can’t explain anything. We should not give up just because there are no easy, immediate answers. One of the major goals of this book, after all, is to clear away the nonsense about crime policy. Consequently, we have to look more closely at the various explanations that have been offered for the crime drop. We will find some plausible reasons to explain at least part of the crime drop in some of these arguments. There is fairly persuasive evidence, for example, that the dramatic decline in the use of crack had a major impact on crime trends. We will look at this in detail in Chapter 13. At the same time, there is some promising evidence regarding the impact of recent innovations in policing—particularly focused deterrence—although we should not exaggerate their impact on national crime rates. THE PURPOSE OF THIS BOOK This book is a search for effective crime policies. It attempts to answer one basic question: what works? What criminal justice policies are effective in reducing serious crime? We will review some of the major crime control proposals and evaluate their effectiveness in light of what we know about crime and justice. Previous editions of this book, written when crime rates were high, sought to Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM BOX 1.1 7 DID CRIME FALL BECAUSE OF LEGALIZED ABORTION? Some economists made the controversial argument that the legalization of abortion by the 1973 Roe v. Wade decision played a major role in the crime drop. Abortion, they argued, resulted in a cohort of 1.5 million “unborn offenders,” which would have entered its high crime years (fifteen to twenty-four years) in the early 1990s, and its absence accounted for part of the crime drop that began in 1993. Additionally, they argued, abortions were disproportionately high among women whose children would be most at risk for criminal behavior (poor, single mothers, etc.).12 Many criminologists stayed away from this controversial idea, but Franklin Zimring examined it closely and found that the evidence does not support it. He found that despite 1.5 million annual abortions, the annual number of live births actually increased slowly but steadily after Roe v. Wade. In short, there was no reduction of the number of youths in their high crime years in the early 1990s. Additionally, the percentage of births to single mothers increased significantly in the period. Finally, there is the matter of timing. The number of abortions began to increase beginning in 1974. The first wave of unborn offenders would have been fifteen in 1989 and crime did not begin to fall until 1993. Thus, the expected crime drop because of abortion did not begin when the economists argued it should have.13 There is an important lesson in the argument that “abortion caused the crime drop.” We should always be skeptical of provocative, single-explanations theories for any change in crime patterns. If nothing else, this book is designed to foster a healthy skepticism and critical thinking about crime and crime policy. determine what might work. Now, in the face of the great crime drop, we have to turn the question around: What has worked? Did certain crime policies contribute to the reduction in crime? If so, which ones? Why exactly were they effective? And can the lessons from one success story be transferred to other programs in other parts of the criminal justice system? Our examination will also tell us a lot about what does not work. In fact, we will spend more time on unsuccessful policies (the nonsense) than successful ones. We begin in this section by discussing some threshold issues that will help clarify our thinking. First we discuss a problem-oriented approach to crime policy and the importance of thinking about particular crimes rather than crime as an undifferentiated phenomenon. Second, we discuss the distinction between contextual factors that affect crime and criminal justice policies. This book focuses on policies, but we should not forget the importance of the broader social context. Third, we discuss evidence-based crime policy, which has become the new standard for evaluating the effectiveness of crime policies. Problem-Oriented Crime Policy We can begin to make sense of crime in the United States by taking a problemoriented crime policy (POCP) approach. More than thirty years ago Professor Herman Goldstein developed the idea of problem-oriented policing (POP), and POP eventually became a widely used approach in policing.14 POP holds that the police should quit thinking about crime as a single undifferentiated phenomenon and instead break it down into specific components: commercial robberies, household burglaries, graffiti, open-air drug dealing, nuisance disorders, and so on. Each one is different, with different degrees of seriousness, different Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 8 CHAPTER BOX 1.2 1 OR WAS IT BECAUSE OF LEAD? An investigative reporter in 2013 advanced the startling argument that the crime drop was the result of lead, and not increased imprisonment, the economy, changes in drug-use patterns, or other commonly cited causal factors. Lead?, you might ask. What does lead have to do with crime? Actually, lead may have a lot to do with criminal behavior. It is well-established in the medical literature that exposure to lead in children contributes to lower IQ levels, hyperactivity and other behavioral problems, and learning disabilities. All of these effects can contribute to problems in school, juvenile delinquency, and then more serious adult crime. A low IQ and hyperactivity easily lead to suspensions and then expulsion from school, and that can send a young person on the path to delinquency and crime. Concerns about the environment and public health led to a national effort to reduce the levels of lead in the environment. The biggest sources of lead have been leaded gas and lead-based paint. Both of which have been substantially reduced since the 1970s. The use of leaded gas soared from the 1940s through the 1970s, when environmental regulations began reducing it. Advocates of the lead-crime theory allow for a lag of about twenty-three years, and this they believe explains both the great increase in crime in the 1960s and the great crime drop in the 1990s. The impact of lead is also not spread evenly. Lead from automobile tailpipes settles into the ground where it can still affect people. Older parts of cities still have this legacy, whereas newer suburbs never had a lot of automobile traffic. Older neighborhoods, of course, are where the poor live, and thus lead contributes to other social factors associated with criminal behavior. Compounding this is the fact that older homes still have many houses with lead-based paint, despite efforts to eliminate it. Newer houses were built after lead-based paint was prohibited. Is this a plausible argument? Can we attribute fluctuations in the crime rate to the two main sources of lead in the environment? Maybe, maybe not. The overlap between lead and poor, high crime neighborhoods has merit. And when we consider who lives in poor neighborhoods, the connection takes on social class and racial dimensions. But our crime rates have fluctuated in a more complex way that the lead-crime advocates admit. Crime leveled off in the 1970s, but homicides among youths soared in the late 1980s before plunging in the early 1990s. The argument that the drug crack best explains the 1980s homicide surge and decline is still persuasive. And the lead-crime argument does not explain the sudden rise in gun homicides in Chicago in 2011 and 2012, to cite one example, and the persistent high levels of gun violence in some cities compared with the declines in other cities. In short, as with other single-cause theories, the lead-crime argument is a little too simplistic. SOURCE: Kevin Drum, “America’s Real Criminal Element: Lead,” Mother Jones (January 3, 2013). See also, Gerald Markowitz and David Rosner, Lead Wars (Berkeley: University of California Press, 2013). causes, and different impacts on individuals and neighborhoods. And each one requires a different response. The Center for Problem-Oriented Policing has published guides on street robbery, drive by shootings, graffiti, and a wide range of other crime and disorder categories.15 Goldstein’s concept of POP also called on the police to put less emphasis on responding to symptoms—mainly 911 calls—and to search for the underlying causes that the police can address. To find effective responses, Goldstein advised, the police should use the model of Scanning, Analysis, Response, and Assessment (SARA): study the problem (Scan), Analyze data, develop an appropriate Response, and the conduct an Assessment of the impact.16 We can apply Goldstein’s concept of POP to the entire criminal justice system with POCP. Applying it to the gun violence issues we have already Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM BOX 1.3 9 THE FAD SYNDROME IN CRIME POLICY Criminal justice policy debates have a long history of fads: exciting ideas that appear suddenly, attract a lot of attention, and in some cases have a major impact on policy, and then suddenly fade away and are forgotten. We call it the Fad Syndrome, and you can track it by looking through the first seven editions of this book. (I did, and believe me it is a depressing experience.) Here is a short list of some of the major fads (dare we call them “major offenders”?). Selective Incapacitation. The first edition of this book gave special attention to the idea of selective incapacitation. Research had found that a small group of offenders are responsible for a large percentage of all serious crimes. Those findings led to the idea that if we could just identify those offenders and give them long prison sentences, we would achieve substantial reductions in serious crime. It didn’t work out, and no one talks about selective incapacitation. Instead, the United States embarked on a decades-long policy of gross incapacitation—locking up massive numbers of people. This edition keeps the discussion of selective incapacitation (Chapters 4 and 7) because it illuminates a number of issues that are very relevant to current crime policy debates. Repealing the Exclusionary Rule and the Miranda Warning. The first editions of this book examined the conservative calls for repealing the exclusionary rule and the Miranda warning. Conservatives were convinced that these and other alleged “loopholes” allowed many criminals to go free and were one of the main reasons why the criminal justice system was so weak in controlling crime. You don’t hear much about ending either the exclusionary rule or Miranda today (although both have been weakened by the Supreme Court) because the evidence never supported the argument that they limited police effectiveness. We have continued to cover the debate over these two policies, however, because the analysis helps us to understand police crime-fighting efforts. Boot Camps. Boot camps were suddenly all the rage in the 1980s and were adopted by many states. Boot camps are short-term facilities for felony offenders designed to “correct” their behavior through a rigorous military-style regimen of physical exercise along with other correctional programs. The purely military aspects caught the public eye, although the more successful programs did not emphasize that. And then, as soon as they appeared, they vanished from policy debates. The research simply did not find any evidence that they were any more effective in reducing recidivism than ordinary sentences. “Three Strikes and You’re Out.” “Three strikes and you’re out” sentencing law exploded on the national scene in the mid1990s. President Bill Clinton gave the idea a strong endorsement, and many states jumped on the band wagon and passed three-strikes laws. With only some variation, the laws provided for a mandatory and long prison sentence for a third felony conviction. Virtually all criminologists denounced the idea, pointing out that it completely ignored the severity of the crimes involved. A felony conviction for theft of a lawn mower (one early case involved theft of a pizza) counted the same as an armed robbery or sexual assault. Nor did they take into account relevant factors regarding the offender. The long sentences only added to the already growing prison population. California passed the most publicized law, and Los Angeles County made the heaviest use of it. Prosecutors in other jurisdictions generally found ways to evade the law. You don’t hear much about three-strike laws today, except in reference to an embarrassing policy from the past. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 10 CHAPTER 1 discussed, our scan quickly tells us that street-level and often gang-related shootings are different from mass shooting incidents at shopping malls or schools. They have different patterns of perpetrators, generally different patterns of victims, and different weapons used. A more detailed scan could be done for domestic violence homicides and robbery-related homicides. In later chapters of this book, we will continue the process with a scan, analysis, and response to each of these problems. Contextual versus Policy Factors In their paper for the Urban Institute, “Reflections on the Crime Decline Lessons for the Future?” Jeremy Travis and Michelle Waul make an important distinction between contextual and policy factors that affect crime.17 The distinction is crucial. It may be that certain contextual factors—poverty, demographic changes—have a major impact on crime, and we should not ignore them. In this book, however, we are concerned with crime policies, and we want to keep our eye focused on that subject. Contextual factors include demographic changes, the rise and fall of the crack cocaine epidemic, and changes in labor markets. The increase in the proportion of crime-prone young people in the population in the 1960s (the famous Baby Boom–era) explained about half of the great crime increase in the 1960s, but the influence of demography has been far more complicated in the last thirty years. A demographic analysis failed to predict the great increase in violent crime in the mid-1980s, as well as the sharp decline after 1993. The changing popularity of crack provides a much better explanation. The rise in violent crime coincided with the arrival of crack, and the crime drop has coincided with its waning popularity. Travis and Waul suggest that a younger generation saw the devastating effects of crack and decided that the drug was just not cool. With respect to changing labor markets, the Urban Institute paper cites data showing that the real wages (actual wages adjusted for inflation) of low-skilled workers declined by almost 25 percent from the early 1980s to 1993, when it bottomed out (from 9.00 per hour to 6.74). The criminal justice policies that the Urban Institute paper considers most relevant include innovations in policing (Chapters 5 and 14), the increase in incarceration and consequent incapacitation of offenders (Chapter 7), and several gun control policies (which we will examine in detail in Chapter 10). After considering all these, the Urban Institute paper concludes that no single factor can explain the great crime drop. Instead, it is probably the interplay of different factors, including both contextual factors and criminal justice policies, that best explains it. If this is true, one of the challenges in this book is for us to identify which of those factors contributed to the crime drop, and the relative importance of each one. Looking ahead, one of the arguments in this book is that no single policy is likely to be the main factor in reducing crime. A sensible approach is that effective crime reduction is likely to be the result of several different policies working together. Consequently, our analysis shifts the focus from specific policies or Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 11 components of the justice system (for example, police, sentencing) to the communities where the impact of different policies are felt. THE ECONOMIC CRISIS AS A CONTEXTUAL FACTOR The economic recession that began in 2008 is an important new contextual factor that has created a serious resource crisis in U.S. criminal justice. Common sense tells us that to be effective, a crime policy has to have sufficient resources. That is true regardless of what your goals are. If you believe that police patrol deters crime, you have to have enough officers and patrol cars to effectively accomplish that goal. If you believe that drug treatment programs reduce crime, you have to have enough treatment programs, with enough staff and beds (for residential programs) to get the job done. Police department budgets have been severely hit by the recession. Many police departments are short-handed because they have been forced to lay off officers or been unable to hire new officers to replace retirees. Budget cuts also affect the quality of policing. A Police Executive Research Forum (PERF) report found that training was often one of the first programs to be reduced. Budget constraints also make it difficult or impossible for departments to undertake innovative policing strategies.18 The resource crisis has affected other parts of the criminal justice system. Public defenders’ offices have increased caseloads, which prevent them from providing adequate legal representation for their clients. A study in Kentucky found that prosecutors have a budget that exceeds 130 million for handling cases involving the indigent, while public defenders have only 56 million for the same cases. In Harris County, Texas (Houston), the prosecutor’s office has thirty investigators, but there are none for defense attorneys who were being paid by contract.19 As a result, public defenders don’t have time to work with their clients, seek out potential witnesses, or examine the evidence carefully. They do not have the time to negotiate plea bargains as well as they might. The lack of resources has aggravated an already serious shortage of drug treatment programs. An Urban Institute study found that among 1.5 million offenders at risk for drug abuse or dependency, only about 55,000 actually receive treatment. That is only 3.8 percent of the need. The cost of providing that treatment was estimated at 1 billion—a huge cost, to be sure. But studies have estimated that drug courts and related treatments save 2.21 for every 1.00 invested. The savings are estimated on the basis of the dollar cost of the number of crimes a nontreated offender would commit (including cost to victims, cost of arrest, cost of detention and adjudication, and cost of the sentence). Thus, the 1 billion investment would save 2.21 billion, for a net savings to society of about 1.2 billion annually.20 Prisons across the country are overcrowded; some of them dangerously so. The crisis in California is simply the worst in any state by far. In 2009 California prisons held 167,000 prisoners and were at almost double their official capacity. A federal judge finally ordered the state to reduce its number of prisoners by 41,000. Under the state’s Public Safety Realignment law, 15,000 prisoners have been transferred to county jails. This change, however, did not reduce the Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 12 CHAPTER 1 number of people incarcerated, only relocated them, transferring the resource problem to the local jails. An expert panel on adult offender rehabilitation found that 50 percent of those leaving prison had not participated in any work or rehabilitation program and never had a work assignment for their entire prison term.21 The resource crisis in California extends to parole officers who had case loads averaging seventy parolees per officer. This is up from forty-five per officer in the 1970s; the American Probation and Parole Association recommends fifty per officer. As a result, many parolees receive absolutely no meaningful supervision whatsoever. About 80 percent of the parolees have two 15-minute, faceto-face meetings per month with their parole officers. In the system’s least restrictive supervision category, parolees “report” by mailing a post card to their parole officer.22 A basic lesson is apparent here: The justice system needs adequate resourses to handle its routine workload effectively. When it is overloaded, serious problems arise. The system does not “collapse” like a building, however. It keeps on going, but only through adjustments that are often undesirable and counterproductive with respect to effective crime control. The New Standard: Evidence-Based Crime Policy A new standard has emerged for evaluating the effectiveness of crime policies. It is a far higher and demanding scientific standard than has been used in the past. Evidence-based policymaking is extensively used in healthcare policy and has become one of the most important developments in criminology. Take a look at the Duke University Medical Center’s Introduction to Evidence-Based Practice to get an idea of how extensive the movement is in the field of medicine.23 Evidence-based policy making requires that policies to be based on a solid foundation of evidence based on research that meets the highest scientific standards. Evidence-based policy making has taken root in criminal justice. George Mason University houses both a Center for Evidence-Based Crime Policy (CEBCP) and an Evidence-Based Policing Research Program.24 In addition to policing, the CEBCP maintains research related to boot camps, court-mandated interventions for persons convicted of domestic violence, the effectiveness of incarceration-based drug treatment programs, and others issues.25 The Center for Evidence-Based Corrections at the University of California–Irvine, meanwhile, has a program of research and technical assistance, with much of it focused on the California corrections system.26 A Justice Department report, “Implementing Evidence-Based Policy and Practice in Community Corrections,” lists eight “Principles for Effective Intervention.”27 We will examine them in Chapter 11. A study of the application of evidence-based probation (EBP) in Oklahoma, meanwhile, found that the application of EBP practices were the crucial factor in making reduced probation case loads effective in reducing recidivism.28 Evidence-based crime policy has added a refreshing, demanding, and long overdue element of scientific rigor to policy debates. The former director of the Office of Justice Programs, Deborah Daniels, declared: “In the past, criminal Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 13 justice practitioners operated on instinct and assumption, not science. They tried new approaches, if they did so at all, because they sounded as though they should be effective. But it did not occur to the practitioners to examine the research before they instituted a particular practice, or to measure its effectiveness as they deployed it.”29 Along the same lines, gang expert Malcolm W. Klein made the somber observation that almost all crime control programs are described as “promising” for the simple reason that “so little has been tested properly.”30 The new era of evidence-based crime policy requires testing and evidence of success. Later in this chapter, we call the traditional approach crime control theology because it rests of faith rather than facts. Even worse than the lack of evidence, many policies have been continued— at great expense—despite the fact that good research has found them to be ineffective. Daniels cited the example of the Drug Abuse Resistance Education (DARE) program, the highly popular school-based drug prevention initiative. It has operated in as many as 75 percent of all school districts in some years at a cost of about 200 million a year. The General Accountability Office (GAO) reviewed evaluations of DARE, and in 2003 reported that there were “no statistically significant differences in illicit drug use between students who received D.A.R.E. lessons in the fifth or sixth grade, referred to as intervention groups, and students who did not—the control groups.”31 Even worse than being ineffective, some popular crime policies have actually caused harm. Can this be possible? Can programs designed to help people actually leave them worse off? Sadly, the answer is yes. The noted criminologist Joan McCord found an example in the famous Cambridge–Somerville (Massachusetts) Youth Study from the 1930s to 1945 (with follow-up reports on the original subjects through the early 1980s). The study matched boys younger than age ten, who received treatment, with control group boys, who did not receive treatment. The treatment consisted of professional counseling, referral to specialists for particular problems, tutoring, and activities such as summer camps. McCord found that among the 103 pairs of youths who had different outcomes, those in the treatment group were actually more likely to have been convicted of a UCR Index crime, to have died at a younger age, or to have been diagnosed as alcoholic, schizophrenic, or manic depressive than those boys not receiving treatment. Even worse, the adverse effects were greater among those boys who received longer and more intensive treatment.32 Scared Straight is an idea that keeps reappearing in different forms. The original program was designed to frighten kids out of criminal behavior by exposing them to the terrible conditions in prison. The Scared Straight idea was popularized by a 1979 television documentary and was eventually adopted in thirtyeight states. An evaluation of the San Quentin (California) Squires program, however, found that after twelve months, 81 percent of the treatment group had been arrested, compared with only 67 percent of the control group. (We take a closer look at Scared Straight in Chapter 6).33 The disturbing news is that well-intentioned treatment can sometimes harm. Evidence-based policy making is designed to guard against this possibility by Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 14 CHAPTER 1 requiring a review of program evaluations (and accepting only those evaluations that meet scientific standards). Evidence-based crime policy sets a high standard of experimental or quasiexperimental research design in which subjects are randomly assigned to treatment and control groups. There is also a requirement of replication. Findings of effectiveness must be confirmed by similar studies using a similar research design. The lack of replication has been a serious problem in criminal justice. Many policies have been based on only one study. The 1974 Kansas City Preventive Patrol Experiment (see Chapter 5) was enormously influential in thinking about policing, but it was never completely replicated.34 Similarly, the Minneapolis Domestic Violence Experiment had a huge influence on the growth of mandatory arrest policies for domestic violence. It was replicated, but when the replications found mixed support for mandatory arrest, they were largely ignored.35 Finally, the findings of replications need to be subject to systematic reviews of studies, or what are called meta-analyses. To determine whether or not a policy is effective, policy analysts should systematically review all of the available studies. It is no longer sufficient that a policy be based on one study that finds it effective. UNDERSTANDING CRIME AND JUSTICE IN THE UNITED STATES The first obstacle to developing sensible and effective crime policies is that most people do not understand the nature of our many crime problems and also how the criminal justice system works. Their understanding is based on preconceptions, myths, stereotypes, and media stories that distort reality. In a review of public opinion surveys, the Sentencing Project found that the public “consistently misjudges” trends in crime; in the 1990s people continued to believe that crime was rising, even though it was actually falling dramatically. The Sentencing Project also found that people consistently believe that the criminal justice system is far more lenient than it really is.36 This book argues that people simply don’t understand the nature of criminal activity, how the police operate, what happens to defendants in court, who goes to prison and for how long, and so on. A good example of serious public misunderstanding involves recidivism of convicted rapists. It is widely believed that rapists reoffend at a high rate. Table 1.1, however, clearly indicates that rapists have the lowest rearrest rates among people convicted of different serious crimes. As a result of the level of public misunderstanding, which politicians generally perpetuate rather than try to correct, we have crime policies with no relation to reality. This leads us to our first Proposition: 1 PROPOSITION Most current crime control proposals are nonsense. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 15 CRIME AND POLICY: A COMPLEX PROBLEM T A B L E 1.1 Sorting fact from fiction: Sex offender rearrest rates MYTH : Violent sex offenders have high recidivism rates DATA: R eleased F elony D efendants R earrested Prior to Case Disposition, 2004 Felony Misdemeanor Criminal Charge Murder R ape Percent Rearrested Rearrest Rearrest 39 29 10 6 3 2 R obbery 21 12 9 Burglary 25 18 7 Drug Trafficking 21 14 7 EVIDENCE: Sex offenders (rape, at least) have the lowest reoffending rates. POLICY IMPLICATIONS: Laws designed to control sex offenders through closer surveillance (for example, sex offender registration laws; community notification) on the assumption that they have high reoffending rates are based on erroneous assumptions. SOURCE: Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2004 (Washington, DC: Department of Justice, 2008). Crime Problems in the United States We can begin to unravel the complexities of the crime problems in the United States by applying our POCP approach to the question: who are the victims of crime? A quick scan reveals that your risk of being a crime victim depends a lot on who you are, especially your race or ethnicity, age, gender, and your income. The victimization rate for violent crime in 2012 was 25.2 per 1,000 for white Americans, 24.5 for Hispanics, and 34.2 for African Americans. The burglary rate for the poorest American housholds (annual income of less than 7,500) has always been more than twice the rate for the wealthiest (income of 75,000 or more).37 Data on homicides provide especially dramatic evidence of the racial disparity in victimization. Although the murder victimization rate for African Americans has declined, as it has for whites, it is still about seven times higher than for whites and even higher for men between the ages of eighteen and twenty-four.38 In short, many analysts believe that the United States has two crime problems: one that affects most white, middle-class Americans and another that affects people of color, the poor, and young people of color in particular. Poor neighborhoods have been overwhelmed by crime and drugs. For their residents, whom some analysts call the underclass, the quality of daily life worsened significantly in the 1980s.39 In some neighborhoods, the drug trade completely takes over the streets, with open drug use and selling. And despite the crime drop, many of these neighborhoods are still filled with unacceptable levels of violent crime, disorder, and community breakdown. A different scan examines the crime problem in the United States according to the most serious types of crime. Criminologists Franklin Zimring and Gordon Hawkins argue that the problem is primarily one of violent crime, particularly Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 16 CHAPTER 1 lethal crime.40 The New England Coalition to Prevent Gun Violence dramatized the extraordinary level of gun-related lethal violence in the United States compared with Great Britain. In 2008, there were a grand total of 42 gun-related deaths in Great Britain. The population of the United States is about five times that of Britain (61 million), so when we multiply their gun deaths by five, we get 210. Compare this with 30,364 gun-related deaths in the United States (for 2005), which includes homicides, suicides, and accidental deaths. Great Britain: 210 populations) 5 210 (Estimated deaths, assuming equal United States: 30,364 (Actual deaths) England, meanwhile, does have a crime problem, but it is different than our problem. The Institute for the Study of Civil Society compared crime rates in the European Union (EU) with countries both inside and outside the EU and found that the murder rate in England and Wales was 1.1 per 100,000 compared with 5 per 100,000 in the United States (at the time the report was done). The two countries were virtually tied with regard to rape, and England and Wales actually had a slightly higher rate for robbery than the United States (137 per 100,000 and 133, respectively). For both assault and burglary, however, England and Wales had significantly higher crime rates than the United States (927 per 100,000 and 262 for assault, respectively; 986 and 715 per 100,000 for burglary, respectively). To be sure, the data are not necessarily comparable with respect to crime definitions and reporting rates, but every other study has reached similar conclusions. In short, other countries have crime problems, but the United States is unique with respect to lethal violence.41 WAGING WAR ON CRIME For a half a century we have been waging “war on crime.” President Lyndon Johnson, a liberal Democrat, first declared war on crime in 1965. Then President Richard Nixon, a conservative Republican, announced his own war in 1969, and followed with a famous war on drugs announcement in 1971. Presidents Ronald Reagan and Bill Clinton both initiated policies that were designed to be tough on crime.42 Politicians and policymakers at the state level have followed their lead, in particular initiating sentencing and imprisonment policies designed to lock up criminals they regard as dangerous and to keep them in prison for long terms. State-level policies, of course, are the most important because state and local officials are responsible for dealing with most of the crime in the United States. Of the 1.5 million prisoners in 2011, for example, 87 percent were in state prisons.43 The consequences of the wars on crime and drugs have been enormous. The number of prisoners has soared from 196,429 in 1970 to 1,504,150 in 2011. Add in the 735.601 people held in local jails in 2011, and we have more than 2.2 million people behind bars. The United States has been on an imprisonment orgy. Figure 1.2 dramatically reveals how the last forty years represent a radical break with the past. The incarceration rate rose from 96 per 100,000 in Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 17 1,800,000 1,600,000 1,400,000 1,200,000 1,000,000 800,000 600,000 400,000 200,000 0 1960 1970 1980 1990 2000 2010 F I G U R E 1.2 Sentenced prisoners in state and federal prisons, 1960–2010. SOURCE: Bureau of Justice Statistics, Historical Statistics on Prisoners in State and Federal Institutions, Yearend 1925–1986 (Washington, DC: Department of Justice, 1988). Bureau of justice Statistics, Prisoners in 2012—Advance Counts (Washington, DC: Department of Justice, 2013). 1970 to 731 in 2010, including both state and federal prisoners. This compares with incarceration rates of 107 per 100,000 in Canada, 126 in Australia, and 62 in Japan.44 No other country locks up so many people. Prisons and jails are only part of the story. The number of people on probation grew from 1,079,258 adults in 1976 to 3,971,319 in 2011, and the number of adults on parole soared from 156,194 to 853,852 by 2011. The result was almost 7 million people “under correctional supervision” by 2011.45 Finally, we need to include the 32,000 immigrants being detained on an average day in 2011 by Homeland Security in 204 facilities around the country, with the total for the year being 429,000. We should add quickly that there are some signs of a reversal of the imprisonment boom. The Sentencing Project reports that the national prison population declined by 1.5 percent in 2011 (a pretty small decrease, but at least not an increase), involving 28,582 prisoners. This reduction was largely the result of revisions of sentencing policy among the states. In 2012, at least twenty-four states adopted forty-one different reforms that affected sentencing. We will examine this entire issue in detail in Chapter 7.46 Several forces have contributed to the imprisonment boom. The most important has been public attitudes about crime and drugs, and a popular belief that the justice system has been and still is soft on crime. Beginning in the mid1970s, every state and the federal government revised its law on sentencing, adding stronger mandatory imprisonment laws; longer sentences; “truth in sentencing” laws that require prisoners to serve, for example, 85 percent of the original sentence; and limitations on “good time” provisions that allow early release of prisoners. An increase in drug arrests, together with tougher sentences for drug crimes, has also contributed to the imprisonment boom. A special problem exists Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 18 CHAPTER 1 4,500,000 3,917,319 4,000,000 3,500,000 3,000,000 2,500,000 2,000,000 1,500,000 1,504,150 1,000,000 853,852 735,601 500,000 0 Prisons Jails Probation Parole F I G U R E 1.3 Total correctional population of the United States, 2011. SOURCE: Bureau of Justive Stastistics, Prisoners in 2011 (Washington, DC: Department of Justice, 2012). Bureau of Justice Statistics, Probation and Parole in the United States, 2011 (Washington, DC: Department of Justice, 2012). in California where more people enter prison every year because of parole revocation rather than a sentence from a court. In Chapter 7, we will examine sentencing laws and look at the evidence on whether imprisonment deters crime and whether longer sentences effectively reduce crime through incapacitation. Most experts argue that they do not, and add that they have had a destructive effect on U.S. society, particularly on the African American community, as many people argue? The Racial Dimensions of the War on Crime Michelle Alexander’s best-selling book The New Jim Crow argues that the policy of mass incarceration has been a consciously racist policy to subjugate African Americans. “The drug war,” she argues, “has been waged almost exclusively in ghetto communities, resulting in what I believe is a racial under class.” Arrest and incarceration has been compounded by indifference to the impact of a policy of mass incarceration because of race. “It was because of race that we didn’t care much what happened to those people and imagined the worst possible things about them.” She chose the title the New Jim Crow to make the point that incarceration has been a deliberate policy to roll back the gains of the civil rights movement and impose a new racial caste system on the United States.47 Alexander’s provocative argument gained much attention outside the world of criminology. Her book became a national best seller, and she gave many talks around the country. The book altered the national debate over imprisonment in two important respects. First, her use of the term mass incarceration changes how we think about the enormous prison population in the United States. It is no Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 19 longer a matter of, say, prison overcrowding, but a deliberate social policy. Second, she has placed race at the center of the debate. Not everyone has accepted her argument. The most serious criticism is that she confuses the results of the war on crime with the intent of the great change in U.S. imprisonment policy. Many people have studied, criticized, and challenged race discrimination in the U.S. criminal justice system. Many have been arguing for decades that the drug war in particular has a discriminatory impact. And many have attacked the imprisonment boom, for its racial aspect and its other destructive effects. But not all are certain that establishing a racial caste system was the original and deliberate intent of the war on crime and mass incarceration. Years ago Jerome Miller once characterized the war on crime as a case of “search and destroy” directed at young African American men. One report estimated that on any given day, 42 percent of the young African American men (ages eighteen to thirty-five) in Washington, DC, are under the control of the justice system: either in prison or jail or on probation or parole. The figure for Baltimore was 56 percent. About 75 percent of the African American men in Washington, DC, were likely to be arrested before they reached age thirtyfive.48 In short, a huge number of African American men are acquiring arrest records as a result of the war on drugs. Some analysts have argued that by the 1990s, there were more African American men in prison than in college, but others reply that the pattern changed in 2002 and there are now slightly more African American men in college than in prison.49 Whatever the exact figures, the important point is that they are even close. The debate over Alexander’s thesis continues, but there is no question that she has put race at the center of the discussions of U.S. crime policy. The data on racial disparities in the criminal justice system are impossible to ignore, particularly with regard to drugs. African Americans represent 13 percent of the U.S. population, but 35 percent of all people arrested for drug offenses, 55 percent of those convicted for drug crimes, and 74 percent of those sentenced to prison.50 Many critics have pointed out that the racial patterns in arrests, convictions, and sentencing, however, are not consistent with the evidence on drug usage. The 2011 National Survey of Drug Use and Health (the best data on the subject) found some differences in reported illicit drug use by race and ethnicity but not as great as the differences in arrest. In 2011, 8.7 percent of whites reported using an illicit drug in the past month compared with 10 percent of African Americans, 8.4 for Hispanics, and 13.4 for American Indians. Illicit drug use is higher among African Americans, but not to the extent that arrests, convictions, and prison sentences would suggest.51 It is useful to put the data on drug usage in perspective by looking at alcohol consumption. The National Survey of Drug Use and Health found that in 2011, 23.9 percent of whites reported “binge” drinking compared with 19.4 percent for African Americans. The racial gap was even greater among twelve- to twenty-year olds, where abuse among whites was twice that of African Americans, at 18.6 percent compared with 9.4 among African Americans. To the extent that binge drinking leads to drunk driving, it becomes a serious public safety issue. In short, substance abuse varies by race and ethnicity, depending on the illegal substance.52 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 20 CHAPTER 1 Waging “War” Is the Wrong Way to Deal with Crime War is the wrong metaphor for crime policies. First, it raises unrealistic expectations, promising a victory and an end to the war. In fact, we will never completely eliminate crime. At best, we will succeed in reducing it, hopefully to the point where it does not destroy entire communities. For the same reason, many medical experts do not like the idea of declaring war on cancer or other diseases. Whether the problem is crime or cancer, a realistic and sensible goal is to get it down to some manageable level.53 The war metaphor is also wrong because it suggests that we are fighting a foreign enemy. This leads people to demonize criminals as people apart from the rest of us. To a great extent, this tendency to demonize has encouraged racial and ethnic stereotypes and aggravated the racial polarization of U.S. society. Additionally, the us-versus-them attitude encourages police officers to regard suspects as people who do not have the same rights as other U.S. citizens. Community policing, which emphasizes close working relations between police and citizens, is a far more appropriate approach for a democratic society. Finally, as we have already seen, the current war on crime has had a terrible effect on U.S. society, particularly on racial and ethnic minority communities. These facts lead us to the following proposition: 2 PROPOSITION Waging “war” is the wrong way to fight crime. The truth is, we do not face a foreign enemy. We are up against ourselves. We need to deal with our own social institutions, our own values, our own habits, and our own crime control policies. Criminologists Steven F. Messner and Richard Rosenfeld argue that “the sources of crime” in this country lie “in the very same values and behaviors that are conventionally viewed as part of the American success story.” The values of material success and individual advancement work for many people, but for others the opportunity to achieve the “American Dream” is blocked. They argue that to deal effectively and responsibly with the crime problem we cannot demonize criminals as “others,” but instead need to reexamine how well our institutions serve all people.54 The U.S. response to the crime problem resembles the way many people deal with being overweight—by “diet binging.” Just as people go on crash diets, lose weight, put it all back on, and then take up another diet fad a year later, so we tend to “binge” on crime control fads. In the 1980s it was selective incapacitation; in the 1990s boot camps and three-strike laws; today it is offender reentry programs (see Chapter 14). And so it goes. Typically, everyone forgets yesterday’s fad without examining whether it really worked. The solution to a weight loss problem does not lie in a miracle cure; instead, it involves difficult long-term changes in one’s own behavior: eating less, eating less fattening food, and exercising more. By the same token, we will reduce crime when we make Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 21 basic changes in all of our social policies that affect families, employment, and neighborhoods. There is no quick, easy, “miracle” cure for crime. A “Social Ledger” of Crime Policy Criminologist Robert J. Sampson recently made a creative proposal for an “imprisonment ledger” regarding the impact of imprisonment. His proposal arose in response to an article arising from Wakefield and Wilderman’s Fragile Families Study on the impact of imprisonment on the children of prisoners, which found that children of incarcerated fathers suffered significant behavioral and mental health problems. He proposed developing a “social ledger for incarceration,” taking into account all of its social impacts. He pointed out that in policy debates over imprisonment criminologists traditionally focused “almost exclusively” on deterrence and incapacitation.55 Sampson’s worthwhile proposal can and should be extended to all criminal justice policies, so that we have a comprehensive social ledger of crime policies. Police operations have many consequences. Increasing police patrol or implementing aggressive strategies such as “hot spots,” large numbers of stops and frisks (as in New York City), or a “broken windows” attack on less serious disorder incidents should be evaluated in terms of more than the impact on crime and disorder. A social ledger should include the impact on people who are stopped and frisked illegally or are subjected to other forms of police misconduct. An increase in traffic stops in an African American neighborhood easily leads to charges of racial profiling. A comprehensive social ledger needs to be properly balanced, taking into account for example the measureable crime reduction effects of a visible police presence. In Chapters 5 and 6, we discuss the effectiveness of focused deterrence programs that are narrowly directed against known offenders and have proven to be effective. In the courts, denying pretrial release in an effort to prevent defendants from committing new crimes has the effects of denying defendants the right to bail, punishing poor people who cannot obtain their release, harming the families of those who are held, increasing the costs to the county for holding them, and increasing the probability of conviction. Over the decades, criminologists have examined all of these consequences. No one, however, has put together a full social ledger that accounts for all of the social costs. Todd Clear’s book, Imprisoning Communities, develops a community perspective on imprisonment. He notes that judges sentence individuals to prison, but imprisonment as a policy has enormous adverse effects on communities.56 His book arose out of the growing interest in communities among criminologists, but it fits comfortably into a social ledger framework. He argues that our policy of mass incarceration has had a devastating impact on communities, and African American communities in particular. It breaks up families, weakens the critical social control function of parents, removes positive role models, and damages the economic health of communities, which are already distressed (by removing potential breadwinners). We might add that to the extent that a weakened social structure leads to an increase in crime it causes middle-class Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 22 CHAPTER 1 and working-class families to move out, thereby further removing positive role models and lowering the economic status of the neighborhood.57 A comprehensive social ledger on imprisonment would take into account the combined effect of adverse impacts on the collective efficacy of neighborhoods: the capacity of ordinary people to work together to solve neighborhood problems. Criminologists increasingly emphasize the importance of informal controls over crime (for that matter, all behavior): intimate partnerships, families, friendship networks, neighborhood ties, and so on. From this perspective, imprisonment of some offenders may prevent some crimes, but mass imprisonment undermines the capacity of communities to prevent crime through their own efforts. One of the most profound consequences of the war on crime is the loss of the right to vote. Virtually every state strips a convicted felon of the right to vote. The impact on the African American community is enormous, considering that an estimated 10 percent of the adult African American population is under correctional supervision at any given moment. The Sentencing Project estimates that in 2010 about 5.8 million Americans could not vote because of a felony conviction, up dramatically from 1.2 million in 1976. One in every 13 African Americans is disenfranchised, more than four times the rate for other Americans. Disenfranchisement has enormous political ramifications. In Florida, which has been a “battleground” state in the last four presidential elections, the African American disenfranchisement rate is 23 percent.58 We will take a closer look at disenfranchisement and other restrictions imposed on ex-offenders in Chapter 14. The disparate impact of the war on crime has been profound on attitudes toward the justice system, and the result is a deep distrust of the justice system among African Americans. A comprehensive social ledger also needs to account for the enormous cost of the war on crime and the resulting shift of tax dollars from education, public health, and the economic infrastructure of roads and bridges. In California, for example, state expenditures for corrections were only half the amount spent on higher education in the early 1980s; by 1994, they were equal. Prison budgets had risen dramatically, whereas the state colleges and universities had suffered drastic cuts. CRIME POLICY: A PLAGUE OF NONSENSE Americans have trouble thinking clearly about crime. Crime rates have fallen dramatically since the early 1990s, but public fear of crime still remains high. We still get a lot of crime control proposals that are disconnected from the reality of crime and justice. One reason is that even with the Great American Crime Drop we still have far more violent crime than any other industrialized country.59 Fear of crime pervades our daily lives like a plague, affecting the way we think, the way we act, the way we respond to one another. Almost half (47 percent) of Americans in 2011 reported that they worried about their home being burglarized when they were not there.60 (And this is despite the fact that the NCVS reports a steady decline in the household burglary rate.) Crime has a corrosive effect on interpersonal relations, making us wary of small acts of friendliness toward strangers. It also distorts the political process, with politicians offering quick-fix solutions that Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 23 have no realistic hope of reducing crime. Fear and frustration about crime produce irrational thinking. Almost every year some new proposal promises to make a dramatic reduction in crime. Most of these proposals, we argue, are nonsense. Even some of the most informed experts on criminal justice are overwhelmed by the problem. Several years ago, when Jerome Miller first submitted the manuscript of his book Search and Destroy, his editor called it “too pessimistic”; it had no optimistic recommendations on what to do about crime. Miller admitted that his editor was right; he did not “have many suggestions—and those I do have, aren’t likely to be taken.”61 Many other criminologists and public figures have also been unable to formulate sensible, realistic proposals for reducing crime. This book, however, is more optimistic than Miller—cautiously optimistic, but optimistic, nonetheless. Research on crime and justice has paid some dividends. Today, we know a lot about what does not work, and we have small number of policies that show promise of helping to reduce crime. We discuss them later in this book. We need to make an important distinction regarding the goals of different reform proposals. Many sensible proposals involve reducing the harm done by the criminal justice system. They follow the ancient medical precept, “First, do no harm.”62 As we have argued, many of our crime policies, especially the war on crime, do serious harm and fail to effectively reduce crime. The Ground Rules Let’s begin our search for sensible and effective crime policies by establishing the ground rules. First, we will focus on crime control. We are concerned with policies that will reduce the level of serious crime. We will consider questions of justice and fairness as constraints on crime policy, but as important as they are, those issues are not our primary focus in this book. Second, there are limits to what we can do. A democratic society respects the rule of law and standards of justice and fairness, unlike totalitarian societies, in which government power is unlimited. We cannot round up and hold all alleged suspects who the police say “look like” the perpetrator of a crime. Nor do we immediately shoot offenders who have been convicted after a short trial. We also respect what the Supreme Court called the “evolving standards of decency that mark the progress of a maturing society.”63 We no longer stone people to death or cut off the hands of burglars. Third, we will focus primarily but not exclusively on the crimes of robbery and burglary. This limited focus helps impose some discipline on our thinking. Too many people evade the hard questions about crime by changing the subject. Liberals often find it difficult to talk about robbery and burglary, changing the subject to victimless crimes, marijuana arrests, or justice issues. Conservatives, meanwhile, focus on celebrated cases (particularly extremely vicious crimes) that have little to do with the routine felonies of robbery and burglary. We will discuss celebrated cases and how they distort our understanding of how the justice system works in Chapter 2. As we go forward we will consider some other crimes to illustrate important points about how the justice system works. An entire section is devoted to drunk driving because this subject provides useful insights into such issues as Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 24 CHAPTER 1 police crackdowns and deterrence that are relevant to crime policy in general. Chapter 13 covers drugs because it is impossible to talk about serious crime and crime policy today without addressing drugs, drug gangs, and drug-related crime. Fourth, this book concentrates on crimes committed by adults. Juvenile crime and delinquency are serious problems that warrant attention, but the world of juvenile justice is a special realm, with its own unique problems, that deserves a separate critical inquiry. What Do We Mean by Crime Prevention? As a 1997 University of Maryland report on Preventing Crime argues, many people are confused about the term crime prevention. The report points out that “the national debate over crime often treats ‘prevention’ and ‘punishment’ as mutually exclusive concepts, polar opposites on a continuum of ‘soft’ versus ‘tough’ responses to crime.”64 As we explain shortly, this dichotomy generally defines conservatives as the advocates of “tough” (that is, punishment-oriented) policies and liberals as the advocates of “soft” (that is, prevention-oriented) policies. Gun violence expert David Kennedy argues that “the false divide between prevention and law enforcement is not only mistaken but catastrophically misguided.”65 Regardless of their label, all crime policies are designed to prevent crime. Kennedy explains that “Working with a kid’s mother to help her run a stable home is prevention.” But by the current misguided logic, a police officer telling the same kid “he’ll go to prison if he shoots somebody” is somehow not prevention. But in reality, both approaches keep violent crimes from happening, no matter what label you put on each one. Particular policies are simply different means to that end. An allegedly soft-treatment program such as outpatient drug abuse counseling is intended to prevent crime no less than is an allegedly toughsentencing policy such as a three-strikes sentencing law. Regardless of the label, our concern is on policies that reduce crime. The Question of Reasonable Goals Our search for sensible and effective crime policies raises a difficult question of criteria. What do we mean by effective? Let us say we find a policy that would reduce crime by 5 percent without doing any serious harm. Is that a goal worth pursuing? A 5 percent reduction is not much, given the size of our crime problem. We would still be swamped by murder, robbery, rape, and drug abuse. But we should not dismiss that policy too quickly. If we combine that one program with others each reducing crime by 5 percent, the combined effect becomes significant. Criminologist Gary Kleck makes a persuasive case for modest goals. We should not expect quick and dramatic changes because unreasonable expectations lead to disappointment and frustration. Kleck advises thinking in terms of modest goals that can be achieved.66 In the long run, a sensible approach to crime will probably include a series of different policies, each one focusing on a different aspect of the larger problem and each one producing a modest reduction in crime. The best example, which we will discuss in Chapter 6, involves traffic fatalities. The rate of traffic fatalities has gone Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 25 down steadily since the 1920s. This is not the result of any single policy (for example, a tough sentencing law for drunk drivers) but a combination of improvements in roads, automobile design, seat belts, and other changes. LEARNING FROM PUBLIC HEALTH We gain an extremely valuable perspective on how to control crime from recent achievements in the area of public health. Many social indicators have moved in a positive direction over the past thirty years, and in some cases even longer.67 Table 1.2 indicates steady decreases in teenage pregnancy and infant mortality. These trends reflect important changes in peoples’ behavior that parallel crime trends. People are not doing things they used to do, or they are taking precautions (getting prenatal health care, for example) that they previously did not. Smoking by adults, moreover, has fallen by more than half since the mid-1960s: from 43 percent of all adults in 1966 to 19 percent in 2010. Another often forgotten success story is the remarkable 75 percent reduction in childhood deaths from accidental poisonings following the 1970 Poison Prevention Packaging Act. Additionally, as we will discuss in detail in Chapter 6, the motor vehicle fatality rate, measured in terms of per 100,000 miles driven, has steadily fallen without interruption since the 1920s. Crime does not occur in a vacuum, and all of the positive trends in these other areas of life suggest some broad changes in the behavior of Americans. A 2013 article in the prestigious Journal of the American Medical Association (JAMA) argues that we can learn much from the successes in other areas when we try to deal with gun violence. We did not reduce smoking by trying to outlaw cigarettes. We tried that with the prohibition of alcohol in the 1920s. Instead, the authors of the JAMA article point out that we have used an array of indirect measures that include raising the price of tobacco products through taxation, media and educational campaigns, and a more pervasive change in cultural and social norms that disfavor and subtly stigmatize smoking (banning smoking from buildings, airplanes, and other locations). (Personal note: this author can remember going to rock concerts in the late 1970s and coming home with clothes reeking of tobacco odor.) True, we have not ended smoking completely, but we have made enormous progress in reducing a serious health risk. As we will discuss in Chapter 6, auto fatalities fell because of a set of T A B L E 1.2 Positive trends in two U.S. social indicators: Teenage births and infant mortality, 1970–2003 Teenage births Births to women, ages 15–19 per 1,000 Infant mortality Deaths per 1,000 live births 1970 68.3 1970 20.0 1980 53.0 1980 12.6 1990 59.9 1990 9.2 2000 47.7 2000 6.9 2010 34.2 2010 7.0 SOURCE: U.S. Bureau of the Census, Statistical Abstract of the United States: 2012 (Washington, DC: Bureau of the Census, 2011). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 26 CHAPTER 1 improvements in diving safety (better roads, better signs, safer cars, seat belts, etc.). Accidental childhood poisonings were reduced through adoption of the childproof pill bottle (yes, we adults often struggle with it, but its contribution to safety is well worth it). Public education about safe storage and the development of poison hot lines have also contributed to the decline in deaths.68 The basic point of the JAMA article is that the successes in public health have been achieved through carefully designed multipronged approaches. No single policy did the trick, but several approaches reinforced each other to achieve a significant result. The lesson for crime control is that we should avoid single policies that make grand promises of success. And we should avoid the extreme rhetoric that accompanies this approach (“war on crime,” “lock ’em up,” “get criminals off the streets,” and so on). And as many chapters in this book will argue, our knowledge base in criminal justice has expanded so much so that we can identify potential points of intervention where we can make small but important differences. The state of the economy, as reflected in the unemployment rate, is a cause for concern because it has direct implications on criminal behavior. The healthy U.S. economy in the 1990s supported all the positive social trends, but the recession that began in 2008, and the resulting increase in unemployment, is a serious matter. Moreover, the unemployment rate for African Americans is twice that of whites. In September 2012, the rate for people age sixteen and older was 7 percent for whites, 9.9 for Hispanics, and 13.4 for African Americans.69 This is a worrisome factor with respect to risk for criminal activity. GUILTY: LIBERALS AND CONSERVATIVES Nonsense about crime is politically nonpartisan. Both liberals and conservatives have been guilty of making extravagant promises about crime reduction. In 1967, the President’s Crime Commission, representing a liberal perspective, promised “a significant reduction in crime” if its recommendations were “vigorously pursued.” Ten years later, the conservative James Q. Wilson offered a program that he claimed would reduce serious crime by 30 percent.70 Neither of these promises was realistic. Over the years other criminologists and public officials representing all political persuasions have made equally ridiculous promises. Consequently, our third proposition is as follows: 3 PROPOSITION Both liberals and conservatives are guilty of peddling nonsense about crime. CRIME CONTROL THEOLOGY Liberals and conservatives base their policies on different assumptions about crime, the administration of justice, and human nature. Let’s examine each side’s assumptions. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 27 The heart of the problem is that for both sides faith usually triumphs over facts, and fundamental assumptions are almost like religious beliefs that ignore empirical evidence. We call this phenomenon Crime Control Theology.71 Most conservatives, for example, believe that the death penalty deters crime. This view persists despite considerable research finding no conclusive evidence of a deterrent effect, as we will see in Chapter 6. Most liberals, meanwhile, believe that “treatment” can effectively correct the behavior of offenders and put them on the path to law-abiding lives despite the evidence on the limited effectiveness of most treatment programs. Many people, whether conservative or liberal, are at times selective applying their principles. In Point Blank, Gary Kleck points out how people switch sides on deterrence. Conservatives believe that the death penalty deters crime but then argue that the exclusionary rule does not deter police misconduct. Liberals switch sides in the opposite direction, arguing that the death penalty does not deter crime but that the exclusionary rule does work.72 We make a serious effort in this book to maintain consistency with respect to our ideas and arguments. Conservative Theology Crime control theologies represent idealized worlds that express people’s highest hopes and deepest fears. Conservative crime control theology envisions a world of discipline and self-control in which people exercise self-restraint and subordinate immediate gratification to their long-term interests. It is a world of limits and clear rules about human behavior. © 2015 Cengage Learning BOX 1.4 THE LIBERAL / CONSERVATIVE DICHOTOMY ON CRIME POLICY Policy Conservative Liberal Police community More cops on the street Improve police relations. Death Penalty The death penalty deters crime. No evidence that the death penalty deters crime. Bail Deny bail to “dangerous” offenders. No evidence of high rates of offending by defendants released on bail. Plea bargaining Plea bargaining allows dangerous criminals to beat the system. Plea bargaining does not result in the release of dangerous offenders. Imprisonment sentences Long and mandatory prison sentences prevent crime. Long and mandatory only for the most dangerous offenders. Gun violence More guns in law-abiding hands prevents crime. Gun control will prevent crime. Drug-related crime More imprisonment More treatment for drug users. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 28 CHAPTER 1 Conservative crime control theology emphasizes personal responsibility and argues that criminals lack self-control and succumb to their passions. They kill because they cannot control their anger. They steal because they want something now and are unable to defer gratification. Poverty or other social conditions are no excuse for crime, in the conservative view. People remain poor because they lack the self-discipline to get an education, find a job, and steadily try to improve themselves. Conservatives are fond of pointing to the many individuals who were born in poverty but worked hard and became rich and successful. Free will, rational choice, and moral responsibility reign supreme in conservative crime control theology. People are responsible for their own fate; they choose to commit crime. James Q. Wilson and Richard J. Herrnstein argue: “At any given moment, a person can choose between committing a crime and not committing it.”73 In rational choice theory, people weigh the relative risks and rewards of committing crime. If the risk of punishment is low or the punishments are relatively light, the theory holds, more people will commit crime. If the chance of being caught and punished is high and the punishments are relatively severe, fewer people will choose to commit crime. The certainty and severity of punishment are important elements in conservative thinking on crime.74 We will look critically at deterrence theory in Chapter 6. Punishment also has a moral dimension in conservative thinking. Because criminals choose to offend, they deserve punishment; they are morally responsible for their actions. Rules are the basis of a civil society, and rule breaking should be punished. This is called retribution, or desert. James Q. Wilson summed it up in a frequently quoted statement: “Wicked people exist. Nothing avails except to set them apart from innocent people.”75 Conservatives are deeply ambivalent about the role of government in controlling crime. William J. Bennett, John J. Dilulio, Jr., and John P. Walters argue that the “root cause” of crime is “moral poverty” (as opposed to material poverty). Too many children grow up not learning right from wrong. Moral health, they argue, is nurtured primarily by strong, two-parent families, religious training, and social institutions that reinforce the right values. “Can government supply manner and morals?” they ask. “Of course it cannot,” they answer. People are socialized into law-abiding behavior primarily by private institutions, beginning with the family. But, these conservatives argue that, government does have an important role to play in providing effective examples of holding people responsible for their behavior. Thus, the swift, certain punishment of criminals helps breed moral health. Moral poverty is fostered by the failure of the criminal justice system to punish criminals. Thus, although government cannot do everything to build an orderly society, it can do some things that contribute to that goal.76 Underlying conservative crime control theology is an idealized image of the patriarchal family. Punishment resembles parental discipline. Minor misbehavior is greeted with a gentle warning, a second misstep earns a sterner reprimand, and serious wrongdoing receives a severe punishment. The point is to teach the wisdom of correct behavior by handing out progressively harsher sanctions and threatening even more unpleasant punishment if the behavior continues. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 29 The problem for conservative crime theology, however, is that the real world of crime and justice does not work like this idealized family. It is filled with some incorrigible children, some of whom are so deeply alienated from society that they do not respect the overall structure of authority. Punishment, in fact, may only distance them further, undermining the legitimacy of the system, as we will discuss in Chapter 12. Some observers believe, for example, that arrest and imprisonment are such common experiences in some poor racial and ethnic minority neighborhoods that they have lost whatever deterrent threat they might have once had.77 Conservatives explain the failure of punishment to work by focusing on problems in the criminal justice system. Punishment, they say, is not certain or severe enough. Too many loopholes allow criminals to beat the system: the exclusionary rule, the Miranda warning, the insanity defense, plea bargaining, and so on. The idea that many criminals “beat the system” and “get off easy” is an article of faith in conservative crime control theology. Close these loopholes, ensure certainty of punishment, and we can reduce crime. Longer prison terms and the death penalty, meanwhile, will increase the deterrent effect and reduce crime. We will take a close look at this idea in several of the chapters ahead. John Braithwaite’s provocative book Crime, Shame, and Reintegration offers a useful perspective on this problem. Braithwaite describes the process of “reintegrative shaming” as being much like the way a family handles someone who breaks the rules. But his theory also clearly indicates that informal sanctions work when close social bonds link the sanctioner and the sanctioned, and where no great differences in values exist in the community—that is, when the relationship more closely resembles a family.78 This is the heart of the problem for conservative crime control theology. The family analogy breaks down in the real world because we have a heterogeneous and fragmented society, characterized by great differences in wealth, race, ethnicity, religion, culture, and lifestyles. Our society is anything but a tightly knit community with a common set of values. Braithwaite’s theory, in fact, is a good explanation of why informal, family-style sanctions do not work in our society. His description of the conditions under which a system of reintegrative shaming can work is actually an accurate description of a seventeenth-century New England village, where that approach to crime control was used effectively.79 The limits of reintegrative shaming lend further support to the importance of a community orientation and the interdependency of institutions and policies emphasized by the University of Maryland Preventing Crime report. Effective reintegration requires a reasonably healthy community. Achieving a healthy community, in turn, probably requires a series of crime prevention programs directed toward a number of different institutions: families, schools, the local labor market, and so on. Liberal Theology Liberal crime control theology emphasizes the social context of crime. Criminal behavior is largely the result of social influences such as the family, the peer Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 30 CHAPTER 1 group, the neighborhood, economic opportunities, and discrimination. Much criminological theory, such as Shaw and McKay’s social disorganization theory, reflects this view.80 Liberal crime policy seeks to alter social influences that are associated with crime. Rehabilitation programs, for example, are designed to provide a structured set of interventions—job counseling, substance abuse treatment—designed to encourage law-abiding behavior. Liberals favor community-based alternatives to imprisonment because they represent a normal social environment compared with the abnormal environment of prison. Liberals are as guilty of wishful thinking as are conservatives. A fundamental article of faith in liberal crime control theology is the optimistic belief that people’s behavior can be reshaped through some kind of formal treatment program. The history of prison and correctional reform is the story of a continuing search for the Holy Grail of rehabilitation: a program that will truly reform offenders. The people who invented the prison in the nineteenth century thought that that imprisonment would do the job.81 When it had obviously failed, reformers invented parole and the indeterminate sentence, believing that placing a prisoner’s release date in his hands would encourage him to display evidence of remorse and rehabilitation. When these measures did not solve the problem of crime, reformers came up with new variations (group counseling, intensive supervision, and so forth). None of these programs has demonstrated consistent effectiveness. If conservatives refuse to face the facts about the failure of punishment, liberals refuse to look at the sad history of the failure of rehabilitation. Faith continues to survive in the face of repeated failure. It is also an article of faith among liberals that the United States is the most punitive country in the world. We do, in fact, lock up more people than any other country. Our current incarceration rate of 743 per 100,000 leads the world. If conservatives believe that most of our problems are the result of loopholes that let too many people off easy, liberals are often guilty of blaming everything on overly harsh punishments. Liberals are ambivalent on the question of individual responsibility. Although they emphasize the importance of social conditions in causing crime and reject the conservative preoccupation with individual responsibility, they cannot completely ignore the role of individual choice. Rehabilitation programs, in fact, are designed to influence individuals to make different (and better) choices. In the realm of the public policy debate, however, liberals tend to downplay the element of individual responsibility. A Word about Rules One way to distinguish between conservatives and liberals with respect to crime policy is their attitude toward rules. Both sides believe in rules and that rules should by applied in a consistent fashion. This is what people mean when they refer to the “rule of law.” Conservatives and liberals mainly disagree over which set of rules to emphasize. In criminal justice, we have two basic sets: criminal law and criminal procedure. The substantive criminal law is a set of rules governing everyone’s behavior. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 31 It defines certain behavior as criminal and specifies the penalty for breaking the rules. Criminal procedure, on the other hand, is a set of rules governing criminal justice officials. It tells them what they may not do (for example, conduct unreasonable searches and seizures) and what they must do (for example, bring the suspect before a magistrate without unnecessary delay).82 Conservatives emphasize the rules of the criminal law. Harming a person or taking someone else’s property violates the basic standards of a decent society. Anyone who violates these rules should be punished. Liberals tend to emphasize the rules of criminal procedure. A free society is one that strictly limits the potentially awesome power of government officials. This is a bit of an oversimplification, but it serves to highlight the different emphases of each side when it comes to crime and crime policy. One way to understand the difference between liberal and conservative attitudes toward rules is to recognize what each side sees as its worst nightmare. For conservatives, unchecked criminality leads to anarchy and the death of freedom. For liberals, unchecked government power leads to tyranny and the death of freedom. The difference is really a question of what represents the greatest threat to freedom. Both sides are ambivalent about rule breaking. Conservatives tend to be willing to excuse violations of the rules of procedure to control crime. They will overlook the unreasonable search if it helps convict a criminal. Liberals, on the other hand, are more concerned about official rule breaking. They are willing to see a criminal suspect go free if a police officer or some other official has made a serious mistake. These differences are not absolute, of course. They are really matters of emphasis. Conservatives do not endorse gross abuses by the police, and liberals do not endorse crime. The classic statement of the difference between conservatives and liberals on this issue is Herbert Packer’s essay on the “two models of the criminal process.”83 Conservatives embrace the crime control model, which puts a high priority on the effective control of crime. To this end, they are willing to grant officials considerable leeway, not restricting them with a lot of rules. Liberals prefer the due process model, in which the highest priorities are fair treatment and the presumption of innocence. Formal rules (due process guarantees) are designed to achieve these goals. Ideological Confusion: Switching Sides The conservative/liberal dichotomy is a useful way to think about crime policy. It helps identify the basic assumptions that underlie different policies. In the last few years, however, this dichotomy is not quite as sharp as it was a few years ago. Strange things have been happening. Some conservatives have adopted traditional liberal policies, and many liberals have embraced traditional conservative ideas. Understanding the crime debate today requires sorting our way through this ideological confusion. One major change involves the issue of legalizing drugs. Decriminalization has traditionally been a proposal by liberals. They have argued that we should not criminalize behavior that does not harm others. Moreover, criminalizing a lot of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 32 CHAPTER 1 behavior often tends to make things worse, by overloading the criminal justice system, encouraging corruption, and failing to respond effectively to what are really social and medical problems. Surprisingly, many prominent conservatives endorse legalizing drugs. The most prominent is the writer and television talk show host William F. Buckley. We will examine the arguments in favor of drug legalization in Chapter 13. For the moment, it is important to note that some conservatives have switched sides and adopted a traditional liberal position. Also, the conservative administration of George W. Bush has strongly supported offender reentry programs (see Chapter 14), which involve the traditional liberal idea of reintegrating offenders into society. Meanwhile, many liberals have adopted some conservative crime control proposals. The best example is former President Bill Clinton. The 1994 Violent Crime Control Act, which he supported, calls for more police and longer prison sentences. In the 1996 presidential election campaign, political observers said that Clinton had moved to the right and embraced the traditional Republican position on crime, supporting three-strikes laws and two federal laws limiting the rights of criminal offenders. In short, the ideological lineup on crime control policies has become muddled. Nonetheless, it is still possible to identify a set of crime policies that, because of their underlying assumptions, can be classified as conservative and another set that can be classified as liberal. These categories will help us analyze the different policies we will consider in this book. CONCLUSION Crime is a serious problem in the United States. Despite the Great American Crime Drop, we still have a serious problem of violent crime that is far higher than in other industrialized countries. Unfortunately, we do not have many good ideas about how to solve the crime problem. In this initial chapter, we have tried to sketch out some of the complexity of the U.S. crime problem. We have also indicated briefly why so many crime control policies are worthless. In the chapters that follow, we will develop these themes in more detail. The next two chapters take a closer look at how the criminal justice system actually works. Then we will turn our attention to specific crime control proposals. As we already indicated, our basic goal is to find some crime control policies that make sense and that are supported by persuasive evidence. NOTES 1 Crime data for New York City, Chicago, and San Diego are available on the websites of their police departments. 2 Bureau of Justice Statistics, Intimate Partner Violence, 1993–2010 (Washington, DC: Department of Justice, 2012). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 33 3 Bureau of Justice Statistics, Criminal Victimization, 2012 (Washington, DC: Department of Justice, 2013). Federal Bureau of Investigation, Crime in the United States, 2012 (Washington, DC: Department of Justice, 2013). 4 Bureau of Justice Statistics, Criminal Victimization, 2011. Bureau of Justice Statistics, Intimate Partner Violence, 1993–2010. 5 Crime data for New York City, Chicago, and San Diego are available on the websites of their police departments. http://www .nyc.gov/html/nypd/html/home/ home.shtml. http://www.cityofchicago.org/city/en/depts/cpd.html. http://www .sandiego.gov/police/ Accessed February 9, 2014. 6 Samuel Walker, Cassia Spohn, and Miriam DeLone, The Color of Justice: Race, Ethnicity and Crime in America, 5th ed. (Belmont, CA: Cengage, 2012). 7 Long-term UCR crime data are available at Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, online edition, Table 3.106. 201. 8 Franklin E. Zimring, The Great American Crime Decline (New York: Oxford University Press, 2007). See especially Chapter 5, “Which Twin Has the Toni? Some Statistical Lessons from Canada,” pp. 107–134. 9 Ibid. 10 Ibid., 120–121. 11 Alfred Blumstein and Joel Wallman, eds., The Crime Drop in America (New York: Cambridge University Press, 2000), 11. 12 Steven D. Levitt, “Understanding Why Crime Fell in the 1990s: Four Factors That Explain the Decline and Six That Do Not,” Journal of Economic Perspectives, 18 (Winter 2004): 163–190. 13 Zimring, The Great American Crime Decline, 85–103. 14 Herman Goldstein, “Improving Policing: A Problem-Oriented Approach, Crime and Delinquency, 25 (April 1979): 236–258. See the materials at the website of the Center on Problem-Oriented Policing: www.popcenter.org. Accessed February 9, 2014. 15 The Center on Problem-Oriented Policing website is www.popcenter.org. Accessed February 9, 2014. 16 The SARA model is explained at http://www.popcenter.org/about/?p=sara. Accessed February 9, 2014. 17 Jeremy Travis and Michelle Waul, Reflections on the Crime Decline Lessons for the Future? (Washington, DC: Urban Institute, 2002). Available on the Urban Institute website. 18 Police Executive Research Forum, Is the Economic Downturn Fundamentally Changing How We Police? (Washington, DC: Police Executive Research Forum, 2010). 19 The Constitution Project, Justice Denied America’s Continuing Neglect of Our Constitutional Right to Counsel (Washington, DC: The Constitution Project, 2009). 20 Avinash Singh Bhati, John K. Roman, and Aaron Chalfin, To Treat or Not to Treat Evidence on the Prospects for Expanding Treatment to Drug-Involved Offenders (Washington, DC: The Urban Institute, 2008). Accessed February 9, 2014. http:// www.urban.org/url.cfm ?ID=411645. 21 Ryken Gratter, Joan Petersilia, and Jeffrey Lin, Parole Violations and Revocations in California (Washington, DC: Department of Justice, 2008). 22 Ibid. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 34 CHAPTER 1 23 The evidence-based medicine website is http://www.hsl.unc.edu/services/tutorials/ ebm/. Accessed February 9, 2014. 24 The most important early statement regarding policing was Lawrence W. Sherman, Evidence-Based Policing (Washington, DC: The Police Foundation, 1998). 25 See the Center for Evidence-Based Crime Policy at http://cebcp.org/. Accessed February 9, 2014. 26 For the evidence-based corrections website, go to http://ucicorrectionis.seweb.uci. edu/. See, for example, Jennifer Eno Louden and Jennifer L. Skeem, “Paroles with Mental Disorder: Toward Evidence-Based Practice,” Center for Evidence-Based Corrections, The Bulletin 7 (April 2011). 27 Meghan Guevara, Crime and Justice Institute, and Enver Solomon, Implementing Evidence-Based Policy and Practice in Community Corrections, 2nd ed. (Washington, DC: Department of Justice, 2009). 28 Sarah Kuck Jalbert and William Rhodes, “Reduced Caseloads Improve Probation Outcomes,” Journal of Crime and Justice 35 (No. 2, 2012): 221–238. 29 Remarks of the Honorable Deborah J Daniels, Assistant Attorney General of Justice Programs, at the National Forum on Evidence-Based Crime and Substance Abuse Policy, Washington, DC, June 14, 2004. 30 Malcolm W. Klein, “Comprehensive Gang and Violence Reduction Programs: Reinventing the Square Wheel,” Criminology and Public Policy 10 (4):1037–1038. 31 General Accounting Office, Letter to Senator Richard Durbin, January 15, 2003, “Subject: Youth Illicit Drug Use Prevention: DARE Long Term Evaluations and Federal Efforts to Identify Effective Programs.” Accessed February 9, 2014. www .gao.gov/new.items/do3172r.pdf. 32 Joan McCord, “Cures That Harm: Unanticipated Outcomes of Crime Prevention Programs,” in David Weisburd, Anthony Petrosino, and Cynthia Lum, eds., “Assessing Systematic Evidence in Crime and Justice: Methodological Concerns and Empirical Outcomes,” Special Issue, The Annals 587 (May 2003): 16–30. 33 James O. Finckenauer, Scared Straight and the Panacea Phenomenon (Englewood Cliffs, NJ: Prentice-Hall, 1982). 34 George L. Kelling, Tony Pate, Duane Diekman, and Charles E. Brown., The Kansas City Preventive Patrol Experiment: Executive Summary (Washington, DC: The Police Foundation, 1974). 35 Lawrence W. Sherman, Janelle D. Schmidt, and Dennis P. Rogan, Policing Domestic Violence: Experiments and Dilemmas (New York: The Free Press, 1992). Christopher D. Maxwell, Joel H. Garner, and Jeffrey A. Fagan, The Effects of Arrest on Intimate Partner Violence: New Evidence from the Spouse Assault Replication Program (Washington, DC: Justice Department, 2001). NCJ 188199. 36 The Sentencing Project, Crime, Punishment and Public Opinion: A Summary of Recent Studies and Their Implications for Sentencing Policy (Washington, DC: The Sentencing Project, n.d.). Available on the Sentencing Project website. www.sentencingproject .org. Accessed February 9, 2014. 37 Bureau of Justice Statistics, Criminal Victimization, 2011 (Washington, DC: Department of Justice, 2012), Table 7. Sourcebook of Criminal Justice Statistics, Table 3.21. 2010. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 35 38 Bureau of Criminal Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 3.106.2010. Bureau of Justice Statistics, Homicide Trends in the United States, 1980– 2008 (Washington, DC: Department of Justice, November 2011). 39 William Julius Wilson, The Truly Disadvantaged: The Inner City, The Underclass, and Public Policy (Chicago: University of Chicago Press, 1987). 40 Franklin E. Zimring and Gordon Hawkins, Crime Is Not the Problem: Lethal Violence in America (New York: Oxford University Press, 1997). 41 Nick Cowen, Comparison of Crime in OECD Countries (London: CIVITAS Institute for the Study of Civil Society, 2010), updated April 2012). http://www.civitas.org .uk/crime/crime_stats_oecdjan2012.pdf. Accessed February 9, 2014. Additional sources: New England Coalition to Prevent Gun Violence Great Britain vs. United States in Gun Deaths, http://necpgv. blogspot.com/. Accessed February 9, 2014. Jan van Dijk, John van Kesteren, and Paul Smit, Criminal Victimization in International Perspective: Key Findings from the 2004–2005 ICVS and EU ICS (New York: United Nations, Office on Drugs and Crime, 2008). 42 Samuel Walker, Popular Justice: A History of American Criminal Justice, 2nd ed. (New York: Oxford University Press, 1998). 43 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, online edition, Table 6.13.2010. 44 The Sentencing Project, Trends in U.S. Corrections (Washington, DC: The Sentencing Project, 2012). 45 Bureau of Justice Statistics, Correctional Populations in the United States, 2011 (Washington, DC: Department of Justice, 2012). 46 Nicole D. Porter, The State of Sentencing 2012: Developments in Policy and Practice (Washington, DC: The Sentencing Project, January 2013). 47 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010). 48 Jerome G. Miller, Search and Destroy: African American Males in the Criminal Justice System (New York: Cambridge University Press, 1996). National Center on Institutions and Alternatives, Hobbling a Generation: African American Males in the District of Columbia’s Criminal Justice System (Alexandria, VA: NCIA, 1992). 49 Bryan J. Cook, By the Numbers: More Black Men in Prison Than in College? Think Again, American Council on Education (Fall 2012). 50 Federal Bureau of Investigation, Crime in the United States, 2011. Bureau of Justice Statistics, Prisoners in 2011. Sentencing Project, Trends in U.S. Corrections. 51 Substance Abuse and Mental Health Services Administration, Results From the 2011 National Survey on Drug Use and Health: Summary of National Findings (Washington, DC: Department of Health and Human Services, 2012). 52 Ibid. 53 The best early critique of the harmful effect of declaring war on crime is the classic essay, Egon Bittner, “The Police and the ‘War on Crime,’” in Egon Bittner, Aspects of Police Work (Boston: Northeastern University Press, 1990), 89–232. 54 Steven F. Messner and Richard Rosenfeld, Crime and the American Dream, 5th ed. (Belmont, CA: Wadsworth, 2012). 55 Robert J. Sampson, “The Incarceration Ledger: Toward a New Era in Assessing Societal Consequences, Criminology and Public Policy, 10 (July 2011): 819–828. Sara Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 36 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 CHAPTER 1 Wakefield and Christopher Wilderman, “Mass Imprisonment and Racial Disparities in Childhood Behavioral Problems, Criminology and Public Policy, (10 July 2011): 793–817. Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (New York: Oxford University Press, 2007). Ibid. See especially Chapter 7 on “The Impact of Incarceration on Community Safety,” pp. 149–174. Christopher Uggen, Sarah Shannon, and Jeff Manza, State Level Estimates of Felon Disenfranchisement in the United States, 2010 (Washington, DC: The Sentencing Project, 2012). See the reports from the International Crime Victimization Survey [ICVS]. www .unodc.org. Accessed February 9, 2014. Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 2.39. 2011. Miller, Search and Destroy: African American Males in the Criminal Justice System. Contrary to popular impression, the admonition to “First, do no harm” does not appear in that exact form in the Hippocratic Oath. It has been inferred from other parts of what is known as the Hippocratic Corpus, a larger body of writings. Trop v. Dulles, 356 U.S.86 (1958). Lawrence W. Sherman, Denise Gottfredson, Doris MacKenzie, John Eck, Peter Reuter, and Shawn Bushway, Preventing Crime: What Works, What Doesn’t, What’s Promising (Washington, DC: Department of Justice, 1997). David M. Kennedy, Don’t Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America (New York: Bloomsbury, 2011), 219. Gary Kleck, Point Blank Guns and Violence in America (New York: Aldine de Gruyter, 1991), 432–433. The best summary of social trends is Marc Minngoff and Marque-Luisa Miringoff, The Social Health of the Nation How America Is Really Doing (New York: Oxford University Press, 1999). Check the most recent Statistical Abstract of the United States (annual) for the most recent data. Dariush Mozaffarian, David Hemenway, and David S. Ludwig, “Curbing Gun Violence: Lessons from Public Health Success,” Journal of the American Medical Association 309 (February 13, 2013): 551–552. Bureau of Labor Statistics, Unemployment Rate Demographics, September 2012 (October 10, 2012). http://www.bls.gov/opub/ted/2012/ted_20121010_data.htm. Accessed February 9, 2014. President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (Washington, DC: Government Printing Office, 1967), vi. James Q. Wilson, Thinking about Crime. George C. Thomas and David Edelman, “An Evaluation of Conservative Crime Control Theology,” Notre Dame Law Review 63 (1988): 123–160. Kleck, Point Blank. James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature: The Definitive Study of the Causes of Crime (New York: Simon and Schuster, 1985), 44. But see the article Wilson coauthored with Allan Abrahamse, “Does Crime Pay?” Justice Quarterly 9 (September 1992): 359–377. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CRIME AND POLICY: A COMPLEX PROBLEM 37 75 Wilson, Thinking about Crime, 209. 76 William J. Bennett, John J. DiIulio, and John P Walters., Body Count: Moral Poverty–And How to Win America’s War against Crime and Drugs (New York: Simon and Schuster, 1996), 205. 77 See the discussion of this point in Daniel S. Nagin, “Criminal Deterrence Research at the Outset of the Twenty-First Century,” in Michael Tonry, ed., Crime and Justice: A Review of Research, vol. 23 (Chicago: University of Chicago Press, 1998), 4–5. 78 John Braithwaite, Crime, Shame, and Reintegration (New York: Cambridge University Press, 1989). John Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts,” in Michael Tonry, ed., Crime and Justice: A Review of Research, vol. 25 (Chicago: University of Chicago Press, 1999), 1–127. 79 Walker, Popular Justice: A History of American Criminal Justice, 2nd ed., 33–34. 80 Clifford R. Shaw and Henry D. McKay, Juvenile Delinquency in Urban Areas (Chicago: University of Chicago Press, 1942). Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books, 1993). 81 David J. Rothman, The Discovery of the Asylum (Boston: Little, Brown, 1971). 82 On the subject of rules and discretion, see Samuel Walker, Taming the System The Control of Discretion in American Criminal Justice, 1950–1990 (New York: Oxford University Press, 1993). 83 Herbert L. Packer, “Two Models of the Criminal Process,” in The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968), chap. 8. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 2 Models of Criminal Justice T he U.S. criminal justice system is extremely complex. People not familiar with police discretion, how plea bargaining works, the law of sentencing, and why the sentence pronounced by the judge does not usually reflect how much time the offender will actually serve are often confused and frustrated. This complexity helps explain why faith so often triumphs over fact, as we explained in Chapter 1. Many people simply choose to believe what they want to believe, regardless of the facts. The United States actually has more than fifty separate criminal justice systems (fifty state systems, the federal system, American Indian justice systems, the military justice system), which include 18,769 separate state and local law enforcement agencies. (And there is even dispute about that figure and what constitutes a “law enforcement” agency.)1 Our state court systems are all structured differently.2 The criminal laws of the states vary, and punishments for the same crimes differ. In the 2012 elections, two states legalized private possession of marijuana, creating new enforcement complexities because of the conflict between state and federal drug laws. Physician-assisted suicide is a crime in most states, but not in Oregon, Washington, and Vermont. Same-sex marriage was almost unheard of just a few years ago (and unthinkable when the first edition of this book was published in 1985), but by early 2014 it was legal in seventeen states and the District of Columbia. The day-to-day administration of justice is even more complex than the formal machinery of the justice system. To the casual observer, things often seem chaotic. Many important decisions are made in informal, “low-visibility” settings—the arrest (or non-arrest) on the street or the plea bargain negotiated in the court hallway. The good news is that after five decades of increasingly sophisticated research, we now have a reasonably good picture of police discretion and plea bargaining. But we continue to learn. The racial profiling controversy that erupted about fifteen years ago exposed the fact that there had been no study of traffic enforcement since 1969.3 We now have a much better picture of the factors that go into an officer’s decision to stop a car: the driving behavior; the context such as the neighborhood; the race, ethnicity, or gender of the 38 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE 39 driver; the department’s policy on traffic enforcement; and the attitudes of the officer.4 The controversy over Florida’s “stand-your-ground” law in the controversial shooting of Trayvon Martin by George Zimmerman in 2012 introduced a new issue in the national debate over gun violence. 4 PROPOSITION Most crime control ideas are based on false assumptions about how the criminal justice system works. Two attitudes dominate thinking about the administration of criminal justice: the Old Idealism and the New Cynicism. Neither helps explain how the system works. As an alternative, we offer the Sober Realism perspective. The Old Idealism is the classic civics-book picture of justice. In this scenario, diligent and hardworking officials enforce the law as it is written in the statutes; a person who commits a crime is duly arrested and prosecuted for that offense; if convicted, he or she receives the prescribed punishment. It is an adversarial system of justice that determines the truth of guilt or innocence through a public contest between prosecution and defense, overseen by an impartial judge. Although inspiring, this version of the criminal process does not describe the reality of our justice system. The New Cynicism is a mirror image of the Old Idealism. It portrays a chaotic criminal justice system in which there is no law, order, or justice. Police discretion is completely out of control: Officers arrest whomever they want, use force without provocation, and so on. Prosecutors plea bargain wildly, letting guilty people get off whereas innocent people are railroaded into prison. Defense Illustration by Frank Irwin, © Wadsworth, Cengage Learning. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 40 CHAPTER 2 attorneys and prosecutors are friends and cut deals to suit each other’s needs.5 Sentencing, according to the New Cynicism, is totally arbitrary: There is no rhyme or reason why some people go to prison and others get probation. Parole boards grant or deny release without any rational or scientific basis for their decisions.6 The New Cynicism comes in two versions. Conservative cynics see irrational decision making undermining effective crime control. Criminals are not punished for their crimes: They are not arrested, they get their charges dropped, or they obtain early parole release. Crafty defense lawyers manipulate the rules of criminal procedure to beat the system. Liberal cynics, on the other hand, believe that the apparent chaos of the system hides systematic discrimination. The poor are punished whereas “respectable” offenders get off easy; African Americans and Hispanic Americans are the victims of systematic discrimination in arrests, plea bargains, and sentencing. In The New Jim Crow, Michelle Alexander argues that the criminal justice system not only has a racist result but it driven by a racist purpose.7 In place of the tired and worn-out Old Idealism and New Cynicism we offer Sober Realism as a far more useful perspective. Sober Realism is rooted in an evidence-based view of how the criminal justice system actually works. (See Chapter 1 for our discussion of evidence-based crime policy making.) This does not mean we throw values under the bus and just say “anything goes.” We retain our values, whether they be pro-death penalty or anti-death penalty, pro-gun control or anti-gun control. On these and other cases, however, Sober Realism holds that to develop effective crime control policies we have to first understand the situation we face. A gun control advocate, for example, has to face the fact that we have an estimated 270 million firearms in private hands, 114 million of them hand guns. A pro-death penalty person has to face the fact that factually innocent people are sometimes convicted and sentenced to death. The Innocence Project has exonerated 310 convicted offenders through DNA evidence since 1989; eighteen were on death row at the time they were exonerated, and another sixteen had been convicted of capital crimes but not sentenced to death.8 Sober Realism rejects old myths about the criminal justice system and emotionally driven ideas that arise from sensational “celebrated cases” (which we will explain shortly). Undeniably, much decision making is irrational. Many offenders do escape punishment. Except for murder, the risk of arrest is low for most crimes. Two experts on drugs estimated the risk of arrest for drug dealers who average 1,000 deals per year (which would be almost 3 a day) at 1 in 4,500 transactions. We can assume that the risk of arrest is even lower for less-active dealers, on the theory that they are simply exposed to arrest less often.9 And as we will see in Chapter 6 with regard to drunk driving, one of the top experts on the subject estimated the risk of even being stopped for a breath test at 1 in 1 million miles driven.10 (Check your odometer to calculate your personal risk.) There is racial discrimination in the system. Research on the death penalty has found that the African American who murders a white person has a greater probability of being sentenced to death than the white person who murders an African American. A higher probability, however, does not mean an absolute certainty—and that is a part of the complexity of the system.11 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE 41 We argue that our alternative perspective, Sober Realism, provides a better interpretation of how the justice system handles routine cases on a day-to-day basis. The purpose of this book is the help unravel the underlying patterns of the administration of justice. This chapter argues that most of the time, the system operates in a fairly consistent and predictable manner. This does not mean it operates in a good or just manner, just a predictable one. Much criminal justice research supports this view. Donald Black and others, for example, have found predictable patterns in police arrest discretion.12 Studies of plea bargaining have found that about 80 percent of the outcomes were predictable if the seriousness of the offense and the defendant’s prior record were known in advance. We will discuss this interpretation of plea bargaining in detail in Chapter 8.13 Despite a high degree of predictability, the justice system is filled with paradoxes and inconsistencies. There is much truth in the comment made almost forty years ago by Frank Zimring and colleagues that “the problem is not that our system is too lenient, or too severe; sadly, it is both.”14 About a quarter of a century ago, Norval Morris and Michael Tonry argued that we simultaneously send too many people to prison and give others meaningless forms of probation with little supervision: “We are both too lenient and too severe.”15 This paradox is a key to understanding how our criminal justice system really works. Two different outcomes occur at the same time in the same part of the justice system. It is hard for many people to accept this, but it does happen, and we believe the evidence supports this view. Routine policing offers a concrete example of the contradictions in the administration of justice. In the same city, in the same precinct, on the same night, within the space of an hour, a pair of police officers both overenforce and underenforce the law: They may be overly aggressive toward a young African American man hanging out on a street corner, and then within an hour not make an arrest in a domestic violence incident a few blocks away, giving the male assailant a break while denying the female victim the protection of the law.16 The apparent contradiction is explained by the fact that the two different situations we just described are different contexts with different dynamics. And we need to point out that both situations involve forms of discrimination: against the young guy on the street in the first and against the female victim of domestic violence in the second. In this example, then, there is a hidden pattern of discrimination underlying the surface contradiction. Sentencing offers additional examples. Some people with multiple drunk driving convictions manage to avoid mandatory prison terms, whereas someone arrested for possession of a small amount of drugs is sentenced to twenty-five years in prison. In terms of the relative harm to society of the two offenses, this inconsistency makes no sense, but it does happen. THE CRIME COMMISSION’S MODEL To help understand how the justice system works, social scientists have constructed models of the system. The first and most famous model (Figure 2.1) was developed more than forty-five years ago by the President’s Crime Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 42 Crime and Law Offenses known to police CHAPTER 2 Police Prosecution Unsolved or not arrested Released without prosecution Released without prosecution Defense Charges dropped or dismissed Charges dropped or dismissed Information Criminal victimization Investigation Self-reported criminal activity Arrest Booking Initial appearance Preliminary hearing Bail or detention Grand jury Refusal to indict Felonies Statutory provisions Information Attitudes concerning crime and justice Misdemeanors Release or station adjustment Police juvenile unit Released Intake hearing Juvenile offenses Nonpolice referrals Nonjudicary disposition F I G U R E 2.1 The Crime Commission’s model of the criminal justice system. SOURCE: President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Science and Technology (Washington, DC: Government Printing Office, 1967) pp. 58–59. Commission (officially the President’s Commission on Law Enforcement and Administration of Justice).17 At the time it first appeared, the Crime Commission’s model was an enormously important conceptual breakthrough. It allowed people to see for the first time the criminal justice system as a whole, and understand it as a “system.” Today, we take this conceptual framework for granted, but in 1967 it was something new and illuminating. Previously, criminal justice experts thought in terms of separate justice agencies that had little relationship to each other.18 The systems approach helped researchers and policy makers understand the complex interactions of the different parts of the justice system. The Crime Commission’s model accomplished exactly what models are designed to do: provide a conceptual framework, or paradigm, that helps identify general patterns, define problems, and focus research and policy planning. The systems model focuses attention on the flow of cases among agencies, the interrelationships among agencies (or “components” of the system), and the pervasiveness of discretionary decision making throughout the system.19 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE Courts 43 Corrections Charge dismissed Acquitted Arraignment Trial Pardon and clemency Probation Revocation Sentencing Penitentiary Out of system Guilty pleas Parole Appeal Reduction of charge Charge dismissed Habeas corpus Acquitted Arraignment Trial Revocation Capital punishment Probation Sentencing Guilty pleas Revocation Out of system Jail Fine Nonpayment Released Petition to court Adjudicatory hearing Probation Revocation Juvenile institution Out of system Parole Revocation The discovery of the pervasiveness of discretion prompted researchers to study the social, organizational, and situational factors that influence each of those decisions. Today we have a better understanding of police arrest decisions and plea bargains. We now understand, for example, that plea bargains are not the result of “bad” people, but the result of sociological factors such as managing the case workload. The systems approach also emphasizes the dynamic relationship among components of the system and how decisions at one point (say, the prosecutor) affect decisions “upstream” (the police) and “downstream” (the judge). Although the Crime Commission’s model was a great innovation and still dominates thinking about the administration of justice, it has certain limitations. Based on the substantial body of research evidence since then, we offer an alternative model. THE CRIMINAL JUSTICE WEDDING CAKE The major shortcoming of the Crime Commission’s model is that it portrays a single justice system that handles all cases alike. Our alternative model is a four-layer wedding cake that focuses our attention on important variations in how cases are handled according to their seriousness (Figure 2.2). The Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 44 CHAPTER 2 F I G U R E 2.2 The criminal justice wedding cake. Illustration by Frank Irwin, © Wadsworth, Cengage Learning. wedding cake model was first developed by Lawrence Friedman and Robert V. Percival in The Roots of Justice, a history of criminal justice in Alameda County, California, between 1870 and 1910. Additional support, based on contemporary evidence, is found in Michael and Don Gottfredson’s Decision Making in Criminal Justice.20 The wedding cake model emphasizes two points. First, there are significant differences between types of cases, based primarily on the seriousness of the offense, the offender’s prior record, and the relationship between the victim and the offender. Keep these three factors in mind, because they will reappear throughout this book. Second, there are fairly consistent patterns of disposition within each category. “Celebrated Cases”: The Top Layer At the top of the wedding cake is a small layer of “celebrated cases.” Every year the news is dominated by a celebrated case involving either a famous person or a particularly gruesome crime. The Sandy Hook School shooting on December 14, 2012, in which Adam Lanza shot and killed twenty schoolchildren, six school teachers and staff members, his mother, and finally himself, provoked national horror and outrage. It reenergized the debate over guns and gun violence in the United States. Seven months later, the trial of George Zimmerman for shooting and killing Trayvon Martin gripped the nation, raising again old questions about race and justice in the United States (See our discussion is in Chapter 10). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE 45 These were classic celebrated cases, generating enormous public interest, but they were not typical of the routine operations of the criminal justice system. Celebrated cases are different from routine cases in several respects. First, many usually involve the full criminal process, including that rare event, the criminal trial, as was true of the Zimmerman/Martin case. (Twenty years ago, the televised 1995 trial of O. J. Simpson for murdering his wife gripped the nation to an even greater degree.) In a trial, we get to see fundamental issues contested in public view: the sanity of the defendant; the admissibility of the evidence; the credibility of the witnesses; the competence of the prosecutor and defense attorney, and the fairness of the judge. Trials are dramatic events, filled with tense cross-examination and suspense about the outcome. They are rare events, however. The Bureau of Justice Statistics estimates that only 5 percent of all criminal cases ever go to trial; the other 95 percent are settled by plea bargaining. And those figures only involve cases presented to prosecutors. Many thousands more arrests each year are dropped by the police without even going to the prosecutor.21 School shootings are horrific events, but as the evidence in Box 2.1 indicates, schools are relatively safe spaces in the United States and have been getting safer in recent years. Second, celebrated cases receive an enormous amount of publicity, usually because of the nature of the crime itself (the shooting of twenty school children in the Sandy Hook case, for example; in the O. J. Simpson case, it was the explosive mixture of a celebrity, race, and sex). A few cases become celebrated because they result in landmark Supreme Court rulings. The famous Miranda case is an excellent example because of the importance of the decision (requiring police to advise suspects of their rights) and its lasting impact on police procedures. © Cengage Learning BOX 2.1 FACT VERSUS FICTION: HOW DANGEROUS ARE OUR SCHOOLS? The Case of School Violence The spate of school shootings has understandably raised public fears about the safety of children (and teachers) in school. The Sandy Hook school shooting in 2012 was an unspeakable tragedy and parents naturally fear for their children’s lives. Yet, the 2011 Indicators of School Crime and Safety shows no increase in violent deaths in schools, and in fact a significant decline in total victimizations. Homicides of youth ages five to eighteen at school is down from the early 1990s to 2007–2010. Because of the low numbers, which are subject to significant variations, it is best to use three-year rolling averages. From an average of 30.3 homicides between 1992 and 1994–1995, they fell to an average of 18.3 in the 2007–2010 period.22 The rates of total victimizations against students between 1992 and 2010 is especially revealing The rate is one-third of what it was eighteen years before. Most important, at-school victimizations parallel the away-from-school trend. Reports from the NCVS over the years have documented this long-term downward trend throughout U.S. society.23 We can draw two conclusions from this. First, schools today are much safer than they were when today’s recent high school graduate entered first grade. Second, schools are not isolated from the communities they serve. Some are more dangerous than the average school and some are safer. The public panic over the safety of their children at school is misplaced. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 46 CHAPTER 2 Third, as we have already mentioned, the publicity surrounding celebrated cases distorts public perceptions about criminal justice. People mistakenly assume that they are typical of all cases. The Zimmerman/Martin trial was televised and featured on cable television station almost every night. But day-in, dayout, few of the 95 percent of all cases that are settled through plea bargains receive much publicity at all. The celebrated 1995 O. J. Simpson murder trial provides an excellent example of how systematic data can dispel myths. Simpson’s acquittal led many people to conclude that spouse murderers “beat the system” all the time. Even worse, it led many whites to believe that African American jurors will not convict an African American defendant. Both of these perceptions are grossly wrong. In response to the Simpson trial outcome, the Bureau of Justice Statistics (BJS) analyzed its data on spouse murders from the seventy-five largest counties in the country for 1988. This included a total of 540 cases.24 As Figure 2.3 indicates, few accused spouse murderers escaped conviction and punishment. In fact, only 2 percent of the husbands were acquitted. Wives were more likely to win acquittal (14 percent) because there were more likely to be mitigating circumstances, such as killing in selfdefense. The system was tough on spouse murder defendants at every stage. Only 13 percent were not prosecuted. And of those who were convicted, 71 percent were sentenced to prison (81 percent of the husbands and 57 percent of the wives). This is an excellent example of how good, systematic data can debunk popular myths and provide an accurate picture of how the system really works. Unfortunately, the BJS data set does not report the racial composition of juries. Because the data come from the seventy-five largest urban counties in the country, however, it is a safe assumption that racial minorities were well represented. Thus, there is probably no truth to the idea that minority jurors refuse to convict minority defendants. These data, in fact, indicate no real difference in the conviction rates between whites (81 percent) and African Americans (79 percent). 11% not prosecuted Of 318 husbands 46% pleaded guilty 41% convicted at trial Probation 5% Sentenced to Prison 81% (Average prison term: 16.5 years) © Cengage Learning 2% acquitted at trial 16% not prosecuted Of 222 wives 39% pleaded guilty 31% convicted at trial Jail 1% Probation 12% Sentenced to 14% acquitted at trial Jail 1% Prison 57% (Average prison term: 6 years) F I G U R E 2.3 Dispositions of spouse murder defendants. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE 47 The great value of the BJS data set is that it reflects the routine, day-in, dayout administration of justice. It gives us a far more accurate picture of how the system operates than celebrated cases such as the O. J. Simpson trial. To understand how routine robberies and burglaries are handled, we need to turn our attention to the second and third layers of the wedding cake. The lesson is clear: beware of celebrated cases. Sure, they are great fodder for gossip, but they do not reflect how the system works for most cases. Serious Felonies: The Second and Third Layers Serious felonies fall into two wedding cake layers, and the distinction between more and less serious felonies is crucial for the analysis that follows. The more serious felonies such as rape and robbery generally fall in is the second layer, whereas less serious felonies such as burglary and larceny are generally in the third. Felonious assaults are divided among the two layers, and misdemeanor assaults are in the fourth layer. A large body of research supports the view that criminal justice officials consistently use several factors to define the seriousness of an offense: (1) the nature of the crime, (2) whether a weapon was used, (3) whether the victim was injured, (4) the suspect’s prior record, and (5) the relationship between the victim and the offender.25 Once a criminal case begins, it is processed by member of the courtroom work group (more about that in a moment). Processing involves classifying it according to seriousness, or how much the work group thinks it is “worth,” through an informal process. Traditionally, there was no actual check list, but this is not completely true anymore. Some prosecutors’ offices have formal guidelines that embody considerations of seriousness.26 Essentially, officials ask themselves, “How much is this case worth?” or “How bad is this offender?” “Is he or she a danger to the community?” The everyday language of police and prosecutors reveals a lot about how cases are handled. They refer to “heavy” cases and “real” crimes as opposed to the “garbage” or “bullshit” cases. A study of California probation officers found that they used the same definitions of “heavy duty” and “lightweight” cases that judges and prosecutors used.27 These judgments about seriousness are shared by all the members of the courtroom work group, which we will explain in more detail in Chapter 3. The courtroom work group plays a central role in determining how the system works. The work group consists of criminal justice officials who work together day in and day out. For the sake of efficiency, they develop shared understandings about how to handle routine cases. This process has two important consequences. First, it means that individual discretion is controlled informally, through shared understandings and expectations rather than through formal rules. Second, it produces a high degree of consistency within each layer of the wedding cake. The shared definition of seriousness facilitates rapid disposition of a high volume of cases. Prosecutors and defense attorneys do not spend a lot of time arguing over particular cases; they know that an armed robbery where the victim was injured is a serious case. As we will see in Chapter 8, the whole idea of plea Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 48 CHAPTER 2 “bargaining” is misleading. The criminal court is not like a Middle Eastern bazaar, where people haggle over the price of each item. Malcolm Feeley argues that it resembles a modern supermarket, with set prices and high volume.28 The “fixed prices” reflect the shared assumptions about how much cases are worth. Criminologist Robert Bohm characterizes the process as “McJustice,” with the efficient handling of a large volume of business at set prices as a part of the broader “McDonaldization” of society.29 Ulmer’s study of sentencing in three Pennsylvania counties also found, however, that the degree of shared understandings can vary. One county court system had a high degree of stability among prosecutors, defense attorneys, and judges, and as a result had collegial relations and shared understandings. A large urban county, on the other hand, had a high degree of turnover in the district attorney’s office, which resulted in conflict between prosecutors and defense attorneys and a low level of collegiality and understanding between defense attorneys and judges.30 In short, although most court systems operate under shared understandings, there are important variations depending on the composition and culture of the local courtroom work group. We will discuss the work group in more detail in Chapter 3. Robbery illustrates how officials distribute cases between the second and third layers. All robberies are not the same. Because robbery is generally considered a serious crime, most cases end up in the second layer, especially if a weapon is used. About one-third of all robberies, however, are between acquaintances. These are often private disputes: a disagreement over borrowed money or tools where the “offender” takes back his or her property by force.31 These robbery cases tend to end up in the third layer because they are not considered as serious as robberies by strangers. If, however, the offender has a long prior record of arrests and convictions, the case might remain in the second layer. An Example of the Complexity of the System: “Back-End Sentencing” in California Despite the general pattern of consistency and predictability, exceptions do occur, and such exceptions add to the complexity of the criminal justice system. One example is the pattern of back-end sentencing in California. Two-thirds of all the people entering prisons in California are parole violators rather than newly sentenced offenders. Officials call it back-end sentencing, because parole officials are doing what we think judges should do: send people to prison. For the simple reason that it represents two-thirds of the people entering prison, it is a major part of the state criminal justice systems. Among other things, it contributes to the serious prison overcrowding in the state that has resulted in federal court orders to reduce the prison population. The process is a result of some unique aspects of California sentencing and parole laws. Under California’s Determinate Sentencing Law, all but a few prisoners are automatically released on parole. The parole laws, meanwhile, require parole officers to report parolees for a wide range of parole violations. About Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE 49 66 percent are sent back to prison within three years (about 60 percent for parole violations rather than for a new crime). Some parolees commit new offenses. Rather than prosecute them, however, local authorities simply revoke their parole. Parole revocations require a lower standard of proof (preponderance of the evidence) rather than proof beyond a reasonable doubt, and thus are considered a “sure thing.”32 The Impact of Prior Record The BJS report on Felony Defendants in Large Urban Counties, 2006 provides powerful evidence on the impact of prior record in the disposition of cases. As Table 2.1 indicates, the percentage of defendants convicted of a felony sentenced to prison dropped from 54 percent for those with two or more prior felony convictions to only 29 percent for those with no prior convictions (felony or misdemeanor). A similar pattern exists for persons convicted of a property offense. The Impact of the Victim–Offender Relationship The relationship between the victim and the offender is also an important factor in criminal justice decision making. A Vera Institute study of felony arrests in New York City provides powerful data on its impact. Figure 2.4 indicates that 88 percent of the stranger robberies resulted in conviction. Moreover, prosecutors were not lenient in plea bargaining: 77 percent of those convictions (68 percent of the original arrests) were on felony charges. Nearly threequarters (74 percent) of those convicted were incarcerated, and half of them did time of a year or more. This is hardly the picture of a system “soft” on crime.33 The prior-relationship robberies are a completely different story. Only about a third (37 percent) of the suspects were convicted, and only 13 percent of them (5 percent of the number originally arrested) were convicted on felony charges. Slightly more than half (56 percent) of those convicted were incarcerated, but none did a year or more. The powerful effect of prior relationships is also evident in rape cases. About half of the sexual assaults in the Vera Institute study were committed by men who knew the victim. Sixty percent of these cases were dismissed; another T A B L E 2.1 Percentage of defendants sentenced to prison by prior record Prior Record Percentage Sentenced to Prison More than one prior felony conviction 54 Only one prior felony conviction 45 Prior misdemeanor one or more prior conviction 26 No prior convictions 29 SOURCE: Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2006 (Washington, DC Justice Department, 2010), Table 15. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 50 CHAPTER 2 20 percent ended in a guilty plea with only minor punishment. All of the stranger-rape cases, however, went to trial. Three-quarters of these resulted in conviction and imprisonment, and two-thirds of the prison terms exceeded twenty-five years. The third layer of the criminal justice wedding cake is a different story. The less serious cases are regularly dismissed; defendants are often allowed to plead guilty to lesser offenses; and, if convicted, defendants are placed on probation. Outcomes are less predictable in the third layer because there is less consensus about the seriousness and the appropriate response than in the second layer. Prior-Relationship Robbery Arrests 100 Stranger Robbery Arrests 100% (34 cases) 100% (19 cases) Convictions on felony charges 88% 90 80 65% 70 60 50 37% 40 30 20 10 0 Arrests 0% 5% Convictions Sentences on any to jail or charges prison Sentences to felony time over one year Prior-Relationship Burglary Arrests 100 32% 68% 21% 100% (17 cases) Arrests Convictions Sentences on any to jail or charges prison Sentences to felony time over one year Stranger Burglary Arrests 100% (27 cases) 89% 90 Convictions on felony charges 80 70 53% 60 48% 50 40 30 20 6% 10 0 Arrests Convictions Sentences on any to jail or charges prison 0% Sentences to felony time over one year Arrests 7% Convictions Sentences on any to jail or charges prison 0% Sentences to felony time over one year F I G U R E 2.4 Outcomes of stranger and nonstranger robberies and burglaries, New York City. SOURCE: Vera Institute, Felony Arrests, rev. ed. (New York: Longman, 1981), pp. 68, 86. Reprinted with permission. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE 51 In their classic study of the jury, Harry Kalven and Hans Zeisel explain this lack of consensus for less serious questions in terms of a “liberation” hypothesis. Under certain circumstances, they argue, jurors are “liberated” from normal constraints in assessing the importance of criminal cases.34 Applying this hypothesis to the wedding cake, we can say that in the third layer, the lack of consensus about the seriousness of the crime or the offender’s prior record liberates prosecutors and judges from the conventional shared understandings of seriousness. This allows them to base their decision on other factors. In some instances, the defendant’s race or other personal attribute becomes a factor. Spohn and Cederblom explored the liberation hypothesis in a study of 4,655 violent felony cases in Detroit from 1976 to 1978.35 They found that African Americans were more likely to be incarcerated than whites. But this was true only in the less serious crimes: in assaults rather than more serious felonies, in acquaintance crimes, and in cases in which there were no prior violent felony convictions or no gun was involved. The outcomes in the more serious crimes (that is, the second-layer cases) were more consistent, with whites and African Americans treated equally harshly. In the less serious (for example, third-layer) cases, there was less consensus about how much these cases were worth, and this allowed extralegal factors such as race to come into play. Finally, with regard to the impact of the seriousness of cases on criminal justice officials, we should note that crime victims make the same distinctions about seriousness in decisions they make. The NCVS consistently finds that victims report the more serious crimes at a higher rate than less serious ones. Between 2006 and 2010, victims reported 59 percent of all robberies, but only 44 percent of simple assaults and 33 percent of all thefts.36 The pattern seems clear: the less serious the personal harm or the value of the property stolen, the less seriously crime victims take the event, and as a result are less likely to report it as a crime. In short, decisions of criminal justice officials on the question of seriousness reflect the values of Americans generally. Prior Relationship: A Policy Dilemma The role of the prior relationship between victim and offender presents a major policy dilemma. At issue is whether it is legitimate to use this role as a factor in decision making. In the area of domestic violence, research has found that police traditionally have taken into account the nature of the relationship. The more intimate the relationship, the less likely the police are to make an arrest.37 Thus, they are less likely to arrest the abusive husband than the abusive boyfriend or lover. In response to protests from women’s groups, many police departments have adopted mandatory arrest or arrest-preferred policies that either require an arrest in a felonious domestic assault or advise officers that arrest is the preferred disposition. The intent is to ensure equal enforcement of the law and to eliminate discrimination based on marital status.38 Along the same lines, Susan Estrich argues that all sexual assaults should be prosecuted with equal vigor. Rapes between acquaintances should not be treated Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 52 CHAPTER 2 less seriously than rapes perpetrated by a stranger. Estrich describes her conversation with a local prosecutor who explained that he used the prior-relationship criterion in all criminal cases, not just rape. He was accurately describing how officials generally handle criminal cases.39 What would happen if we did eliminate prior relationship as a decision making factor in all criminal cases? At the arrest stage, it would produce more domestic violence arrests. The arrest rate trends for aggravated assault (which includes felony domestic violence arrests) indicate an interesting pattern. Between 1980 and 1995, the national arrest rate for aggravated assault doubled. During the same time period, the arrest rate for robbery (the closest personal crime of violence) fluctuated from year to year but with an overall stable rate. These data suggest that the police did begin making more domestic violence arrests in those years, undoubtedly in response to increased public concern about domestic violence and new police department arrest policies. The influence of prior relationship was not completely eliminated, of course, but it would appear that it was significantly modified in response to a changing social and legal context.40 This outcome presents us with a policy dilemma. Eliminating prior relationship as a decision-making factor would produce greater equality in the administration of justice—a desirable outcome. At the same time, however, it would increase the overall puntiveness of the justice system. Is that a desirable result? A general lesson can be learned here. Significant changes in criminal justice policy often involve major trade-offs. The gains on one side of the equation need to be considered in light of the consequences on the other side. Hard or Soft on Crime? Unraveling the Paradox Is the criminal justice system hard or soft on crime? Our wedding cake illuminates the paradox noted by Zimring, Morris, and Tonry: The system is simultaneously harsh and lenient. A great deal depends on the seriousness of the case. The system is hard on second-layer cases, such as robberies committed by people with long prior records. But it is relatively soft on assaults by offenders with no prior records. It is hard on stranger rapes, which fall in the second layer of the Wedding Cake, but more lenient on acquaintance assaults, which fall in the third layer. Additional support for the distinction between the second and third layers of the wedding cake is found in some career-criminal prosecution programs. We will look at these in detail in Chapter 8. These programs are designed to concentrate prosecutorial resources on a special class of cases involving career criminals to make sure they are convicted and sentenced to prison. The San Diego Major Violator Unit succeeded in convicting 91.5 percent of the career criminals it handled. But 89.5 percent of the career criminals were being convicted before the program began. Under the program, 100 percent of the convicted career criminals were incarcerated, but the rate had been 95.3 percent beforehand. In short, criminals deemed “serious” by commonsense criteria were already being taken seriously. As Diana Gordon, former director of the National Council on Crime and Delinquency, put it, “Being tough doesn’t work because being lenient is not the source of the problem.”41 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE 53 The idea that our criminal justice system is tough on serious crime comes as a surprise to many people. A Sentencing Project report found that most people believe that the system is much softer than it actually is.42 There are two reasons for this misperception. First, they are influenced by celebrated cases that are not typical of general patterns in the justice system. Second, because official data usually aggregate sentences into general categories, they obscure the important distinctions between serious and less serious crimes. Aggregate data give the appearance of softness because relatively few cases end up in the second layer. Violent crimes represent only 10 percent of all felonies reported to the police. Larceny, the least serious felony, accounts for 54 percent of the total. The wedding cake model allows us to focus on how the system responds to the most serious crimes, those in the second layer. We need to add here that over the last several decades the criminal justice system has gotten much tougher on serious crime, a fact that accounts for the soaring prison population. We will discuss this in detail in Chapters 3 and 7. The important point here is that, given that change, the distinction between the second and third layers of the Wedding Cake remains consistent, as do the patterns of predictability within each of the two layers. The Lower Depths: The Fourth Layer The fourth layer of the wedding cake is a world unto itself. The lower criminal courts handle all of the misdemeanors in most jurisdictions. The volume of cases is staggering, far outnumbering felonies. The eight Part I Index crimes accounted for only 17 percent of the 9.5 million arrests in 2011. About half of the Part II Index crime arrests involved “public order” offenses: disorderly conduct, breach of the peace, drunkenness, and so on. In fact, the largest single arrest category every year is “All other offenses (except traffic),” with a total of 2.7 million in 2011.43 Under the criterion of seriousness, these cases are not considered to be worth much at all. Few of the defendants are regarded as real threats to public safety. Because of the huge volume of cases and their relative lack of seriousness, relatively little concern is shown for the formalities of the felony process. In an excellent study of the lower courts of New Haven, Connecticut, Malcolm Feeley concludes that these institutions remain virtually untouched by the dueprocess revolution.44 To enter these courts is to step back in time eighty years. None of the defendants in the 1,640 cases he examined insisted on a jury trial. Half never had an attorney. Even for those that did, the lawyer’s contribution was minimal. Even more shocking, by our standards of due process, defendants were arraigned en masse, in assembly-line fashion. Sentences were extremely light. Half of the defendants received a fine of fifty dollars or less, and only 4.9 percent were sentenced to jail. Feeley concludes that the “process is the punishment”: Simply being brought into the lower courts is the real punishment, quite apart from the eventual outcome of the case. Insisting on your “rights” only increases the “punishment.” A private attorney, for example, would charge 200 dollars to Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 54 CHAPTER 2 handle a case (about 800 dollars at today’s rates). This is four times the fine were you simply to cop a plea at the earliest possible moment. Moreover, because most defendants in the lower courts are hourly wage earners rather than salaried professionals, the lost wages involved in fighting a case would generally exceed the potential fine. (Each case in Feeley’s study averaged three court appearances. Fighting the case would only increase the number and length of court dates.) The closer we look, however, the more complicated the picture becomes. A study of the Philadelphia lower courts offers a different view and illustrates the hazards of generalizing about criminal justice. Stephen J. Schulhofer found that in Philadelphia’s two lower courts—Municipal Court and the Court of Common Pleas—about half (48 percent) of all cases went to trial, virtually all defendants had legal counsel, and the punishments meted out to the guilty were relatively significant. Nearly a quarter (22 percent) of the convicted offenders received a jail sentence, and 17.4 percent received fines (which ranged as high as several hundred dollars). Schulhofer argues that Feeley overstated the “process” costs of contesting a case in the lower courts. The price of the likely penalty, at least in Philadelphia, makes the case worth fighting. The main reason appears to be that penalties are significantly stiffer in Philadelphia than in New Haven.45 We do not need to resolve the differences between Feeley and Schulhofer’s findings here. The basic points are that (1) the lower courts are different from the upper courts and (2) there are significant differences between courts in different jurisdictions. CONCLUSION Our wedding cake model of the criminal justice system is designed to help us make sense of the administration of justice in action. As we go along, the most important thing to keep in mind is that we should not be distracted by celebrated cases. They make great stories for the tabloids, but they interfere with our understanding of routine operations in criminal justice. In particular, we want to be skeptical of any policies that are based on celebrated cases. And because we are primarily concerned with the control of serious crime—robbery and burglary in particular—we need to keep our eyes focused on the second layer of the wedding cake. NOTES 1 Wesley G. Skogan and Kathleen Frydl, Fairness and Effectiveness in Policing: The Evidence (Washington, DC: National Academies Press, 2004). 2 Bureau of Justice Statistics, State Court Organization, 2004 (Washington, DC: Department of Justice, 2006). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE 55 3 John A. Gardiner, Traffic and the Police: Variations in Law-Enforcement Policy (Cambridge, Harvard University Press, 1969). 4 Bureau of Justice Statistics, Contact Between the Police and the Public, 2008 (Washington, DC: Department of Justice, 2011). 5 This interpretation is vividly captured in “The Practice of Law as a Confidence Game,” in Abraham Blumberg, Criminal Justice, 2nd ed., (New York: New Viewpoints, 1979), 242–243. 6 For a reasonable review of the evidence, see Samuel Walker, Cassia Spohn, and Miriam DeLone, The Color of Justice Race, Ethnicity, and Crime in America, 5th ed. (Belmont, CA: Cengage, 2012). 7 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010). 8 See the Innocence Project’s website for the most recent data: www .innocenceproject.org. Accessed February 9, 2014. 9 David Boyum and Peter Reuter, An Analytic Assessment of US Drug Policy (Washington, DC: AEI Press, 2005). 10 H. Laurence Ross, Confronting Drunk Driving: Social Policy for Saving Lives (New Haven, CT: Yale University Press, 1992). 11 Walker, Spohn, and DeLone, The Color of Justice. 12 Black, The Manners and Customs of the Police 13 Peter F. Nardulli, James Eisenstein, and Roy B. Flemming, The Tenor of Justice Criminal Courts and the Guilty Plea Process (Urbana: University of Illinois Press, 1988). 14 Franklin Zimring, Sheila O’Malley, and Joel Eigen, “Punishing Homicide in Philadelphia: Perspectives on the Death Penalty,” University of Chicago Law Review 43 (Winter 1976): 252. 15 Norval Morris and Michael H. Tonry, Between Prison and Probation Intermediate Punishments in a Rational Sentencing System (New York: Oxford University Press, 1990), 3. 16 Walker, Spohn, and DeLone, The Color of Justice, chap. 4. 17 President’s Commission on Law Enforcement and Administration of Justice, Task Force Report Science and Technology (Washington, DC: Government Printing Office, 1967), 58–59. 18 Samuel Walker, Popular Justice: A History of American Criminal Justice, 2nd ed. (New York: Oxford University Press, 1998), 202–206. 19 On the origins of the systems perspective, see Samuel Walker, “Origins of the Contemporary Criminal Justice Paradigm: The American Bar Foundation Survey, 1953–1969,” Justice Quarterly 9 (March 1992): 201–229. 20 Lawrence M. Friedman and Robert V. Percival, The Roots of Justice Crime and Punishment in Alameda County, California, 1870–1910 (Chapel Hill: University of North Carolina Press, 1981). Michael R. Gottfredson and Don M. Gottfredson, Decision Making in Criminal Justice Toward the Rational Exercise of Discretion, 2nd ed. (New York: Plenum, 1988). 21 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2006 (Washington, DC: Department of Justice, 2010). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 56 CHAPTER 2 22 Bureau of Justice Statistics, Indicators of School Crime and Safety: 2011 (Washington, DC: Department of Justice, 2012), Figure 1.1, Figure 2.1. 23 Bureau of Justice Statistics, Criminal Victimization, 2010 (Washington, DC: Department of Justice, 2011). 24 Bureau of Justice Statistics, Spouse Murder Defendants in Large Urban Counties (Washington, DC: Department of Justice, 1995). 25 Jeffrey T. Ulmer, Social Worlds of Sentencing: Court Communities Under Sentencing Guidelines (Albany: State University of New York Press, 1997), 60–62. 26 William F. McDonald, Plea Bargaining Critical Issues and Common Practices (Washington, DC: Government Printing Office, 1985). 27 The informal language is reported in several studies: Lynn Mather, “Some Determinants of the Method of Case Disposition: Decision Making by Public Defenders in Los Angeles,” Law and Society Review 8 (Winter 1974): 187–216. David Sudnow, “Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office,” Social Problems 12 (Winter 1965): 255–276. John Rosecrance, “Maintaining the Myth of Individualized Justice: Probation Presentence Reports,” Justice Quarterly 5 (June 1988): 235–256. See also our discussion of this issue with respect to plea bargaining in chapter 8. 28 Malcolm M. Feeley, “Perspectives on Plea Bargaining,” Law and Society Review 13 (Winter 1979): 199. 29 Robert M. Bohm, “McJustice: On the McDonaldization of Criminal Justice” Justice Quarterly 23 (March 2006): 127–146. 30 Ulmer, Social Worlds of Sentencing: Court Communities Under Sentencing Guidelines. 31 Donald Black, Toward a General Theory of Social Control, vol. 2 (Orlando, FL: Academic Press, 1984), 1–28. 32 Ryken Grattet, Joan Petersiha, and Jeffrey Lin, Parole Violations and Revocations in California (Washington, DC: Department of Justice, 2008). 33 Vera Institute, Felony Arrests, rev. ed. (New York: Longman, 1981). 34 Harry Kalven, Jr., and Hans Zeisel, The American Jury (Boston: Little, Brown, 1966), 164–166. 35 Cassia Spohn and Jerry Cederblom, “Race and Disparities in Sentencing: A Test of the Liberation Hypothesis,” Justice Quarterly 8 (September 1991): 306. 36 Bureau of Justice Statistics, Victimizations Not Reported to the Police, 2006–2010 (Washington, DC: Department of Justice, 2012). 37 Black, The Manners and Customs of the Police. 38 Lawrence W. Sherman, Janell D. Schmidt and Dennis P. Rogan, et al., Policing Domestic Violence (New York: The Free Press, 1992). 39 Susan Estrich, Real Rape (Cambridge, MA: Harvard University Press, 1987). 40 Bureau of Justice Statistics, Arrest in the United States, 1980–2009 (Washington, DC, Department of Justice, 2011). 41 U.S. Department of Justice, An Exemplary Project Major Violator Unit—San Diego, California (Washington, DC: Department of Justice, 1980). Diana R. Gordon, Toward Realistic Reform A Commentary on Proposals for Change in New York City’s Criminal Justice System (Hackensack, NJ: National Council on Crime and Delinquency, 1981), 16. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. MODELS OF CRIMINAL JUSTICE 57 42 The Sentencing Project, Crime, Punishment, and Public Opinion: A Summary of Recent Studies and Their Implications for Sentencing Policy (Washington, DC: The Sentencing Project, nd). 43 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, online edition. Table 4.7.2011. 44 Malcolm M. Feeley, The Process Is the Punishment (New York: Russell Sage Foundation, 1979). 45 Stephen J. Schulhofer, “No Job Too Small: Justice Without Bargaining in the Lower Criminal Courts,” American Bar Foundation Research Journal (Summer 1985): 519–598. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 3 The Going Rate EVALUATING THE SYSTEM We now turn our attention to the question of how the criminal justice system works on a day-to-day basis. How effectively does it control crime? How successful is it in catching, prosecuting, and punishing dangerous criminals? Is the system fair? Is there a pattern of discrimination against people of color? Much controversy surrounds these questions. For years, the Sentencing Project has argued that we lock up far too many people.1 Michelle Alexander in The New Jim Crow indicts the criminal justice system for intentional and systematic race discrimination.2 Yet, for four decades, the majority of Americans and state legislatures have been convinced that we need to put more people in prison and for longer terms.3 Evaluating the performance of our criminal justice system is a difficult task. As we have already learned, on some questions we do not even have good data. The national controversy over “driving while black” exposed the embarrassing fact that we didn’t have any systematic data on traffic enforcement, on who gets stopped, and what happens to them. Even where reasonably good data are available, experts disagree over what they mean. There is much debate over whether the traffic stop data we now have indicate racial and ethnic discrimination or disparities that can be explained by other factors.4 This chapter identifies some general features of the criminal process. As we argued in Chapter 2, a high level of consistency and predictability exists in the justice system. There is also a going rate for crime in each jurisdiction, although there are variations among local jurisdictions. The going rate is defined as the standard and predictable punishment for a particular crime. What is the expected outcome, for example, of a criminal case involving a first offense robbery where the defendant has two prior felony theft convictions with sentences of probation? The overall going rate has changed significantly over the last thirty to forty years, however. The criminal justice system has become harsher in punishing convicted offenders than ever before. This fact is dramatically evident in Figure 1.2 in 58 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 59 Illustration by Frank Irwin, © Wadsworth, Cengage Learning. Chapter 1 on the explosion in the prison population.5 That is a dramatic change by any measure. Within that pattern of toughness, we will argue in this chapter, familiar themes of consistency still prevail. THE CRIMINAL JUSTICE FUNNEL A good starting point is the President’s Crime Commission analysis of the flow of cases through the system (Figure 3.1). Although the data are from the 1960s, they illustrate important basic patterns that have not fundamentally changed. The Crime Commission found that despite 6 million reported and unreported crimes, only 63,000 offenders were sentenced to prison. This led to the conclusion that only 1 percent of all criminals go to prison. Many people have cited this figures as evidence that the criminal justice system fails to punish offenders. We argue that the 1 percent estimate seriously distorts how the system really works. In a sharp critique, Charles Silberman argued that the Crime Commission’s analysis was “grossly misleading.”6 Reanalyzing the same data (Figure 3.2), he pointed out that about 260,000 (35.7 percent) of the original 727,000 arrests involved juveniles whose cases were transferred to juvenile court. What happens to them is, of course, extremely important but not our concern here. In this book we are focusing on adults. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 60 CHAPTER 3 2,780,000 Index crimes reported 727,000 arrested 177,000 formal felony complaints 160,000 sentenced 63,000 to prison F I G U R E 3.1 The funneling effect of the criminal justice system. SOURCE: President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Science and Technology (Washington, DC: Government Printing Office, 1967), p. 61. Subtracting the juveniles leaves 467,000 adult arrests. Silberman argued that this is the proper baseline for assessing the performance of the adult criminal justice system. About 27 percent of these arrests (128,000) were dismissed, leaving 339,000 prosecuted adults. This results in a prosecution rate of 73 percent, which is hardly a sign of softness on crime. Then, about half (48 percent) of these defendants pled guilty to a misdemeanor. These cases were not “lost,” as many some estimates suggest. The defendants were convicted of a crime and suffered all the collateral consequences of having a criminal record. In Chapter 2, we cited Malcolm Feeley’s analysis of all this as the “process” costs of the lower courts. Subtracting the misdemeanor convictions leaves 177,000 adult felony complaints. Of these, 90 percent were convicted: 130,000 by a guilty plea and 30,000 by trial. A 90 percent conviction rate is impressive. When we combine the 160,000 felony convictions with the 162,000 misdemeanor convictions, we have a total of 332,000 adults convicted. This represents 69 percent of all the adults arrested and 95 percent of those prosecuted. This is a picture of a fairly tough criminal justice system. Have things changed since the 1960s? The BJS report Felony Defendants in Large Urban Counties, 2006 indicates that 68 percent of all felony arrests presented to prosecutors resulted in a conviction (up from 64 percent in 2000); 56 percent Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 61 727,000 arrested 260,000 juveniles 467,000 adults arrested 339,000 adults prosecuted 162,000 plead guilty to misdemeanors 128,000 dismissed 177,000 adult felony complaints 130,000 plead guilty 17,000 not guilty 30,000 guilty at trial Total “in” or punished: 322,000 adults Total “out”: 145,000 adults 260,000 juveniles F I G U R E 3.2 Silberman’s recalculation of the Crime Commission’s funnel. SOURCE: Charles Silberman, Criminal Violence, Criminal Justice (New York: Random House, 1978), pp. 257–261. were convicted of a felony and 11 percent were convicted of a misdemeanor. These patterns are not radically different from the 1960s.7 When we apply our wedding cake model to the BJS data, we find important patterns. Conviction rates vary by the type of crime. In 2009 (the most recent data available), 70 percent of all murder defendants were convicted, as were 68 percent of rape defendants and 66 percent of robbery defendants. These figures represent total conviction rates. Among the robbery defendants, 59 percent were convicted of a felony and 7 percent of a misdemeanor. For rape defendants, 57 percent were convicted of a felony and 11 percent were convicted of a misdemeanor. The lowest conviction rate was for assault defendants (56 percent overall; 39 percent for a felony). What happens to felony defendants who are convicted? According to the BJS report, 73 percent were Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 62 CHAPTER T A B L E 3.1 3 Sentences for convicted offenders, 2009 Conviction Incarcerated Offense Prison Murder 98 R ape 84 R obbery Assault Not Incarcerated Jail Probation Other 2 0 0 5 11 0 71 18 11 1 47 34 18 1 Burglary 53 26 20 1 Larceny/theft 40 32 27 0 Drug Trafficking 45 35 19 1 SOURCE: Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009 (Washington, DC: Department of Justice, 2013). incarcerated; 36 percent went to prison; and 37 percent went to jail.8 The major change since the 1960s has been a dramatic increase in the incarceration rate (the percentage of offenders sentenced to prison or jail) and the length of prison sentences. The incarceration rate needs some further discussion. People who argue that the criminal justice system is systematically “soft” on crime cite the fact that 36 percent of all convicted felons are sentenced to prison. They overlook the fact that 35 percent are sentenced to jail. This issue requires a judgment call based on our values. Time in jail is not a pleasant experience. Jails have fewer programs than prisons. And the offender still has a criminal conviction with all the collateral consequences.9 From our perspective, then, the 73 percent incarceration figure is the proper standard. A CLOSER LOOK INSIDE THE FUNNEL The picture gets even more complicated when we step back and take a broader view of the entire criminal process. The BJS data represent cases that are presented to prosecutors (the Methodology section defines them as “felony filed with the court”).10 This omits a lot of people who have been arrested. The police routinely decide not to file charges against some people they have arrested. In some cases a supervising sergeant refuses to sign off on the arrest charge. The evidence may simply be too weak; the witnesses may be unreliable; or there may be no witnesses at all. Joan Petersilia found that about 11 percent of all arrests in California were dropped by the police.11 Prosecutors, meanwhile, reject many cases, usually because of witness or evidence or witness problems. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 63 The official arrest data reported by the FBI, it turns out, are less precise than they appear. The key word is official arrests, which means officially recorded arrests. An arrest is only an official arrest if the police complete an arrest report. A Police Foundation report found that police departments do not complete official arrest reports in a standard fashion.12 If you are taken into custody by the police and held, you are arrested, in both a legal and psychological sense, but not necessarily in an official sense. Some police departments officially record all such arrests, but many do not. Some officially record arrests only when a suspect is taken to a police facility. Some officially record them only if the suspect is questioned. The net result is that arrest data across police departments are not comparable. (This fact is not acknowledged by criminologists who do cross-sectional studies of arrest activity.) The BJS felony defendants data do not take into account everyone who is arrested, and the “true” number of persons arrested by the police in any given year is not known but certainly larger than official data indicate. Weeding out the Weak Cases: Rejections and Dismissals After a case reaches the prosecutor’s desk, it can then be rejected by the prosecutor or dismissed by a judge. Table 3.2 presents BJS data on the reasons for rejections and dismissals in New York and San Diego. (These data are a little old, but the general patterns still holds today.) The most notable point is that the major reason for rejections by prosecutors is insufficient evidence or lack of any evidence: 61 percent in New York and 51 percent in San Diego. Witness problems are the second most important reason: 18 percent of the rejections in New York and 19 percent in San Diego. For most crimes against persons (robbery, rape, assault), the testimony of the victim or a witness is the primary evidence. In short, evidence and witness problems account for about 70 to 80 percent of all rejections. These data are relevant to the too-soft or too-harsh debate. Cases with weak evidence are not going to result in a conviction. They are rejected or dismissed not because prosecutors and judges are soft on crime, but because these officials are realistic: why waste everyone’s time on a losing case? The reason for the “loss” of these cases lies in the nature of the cases themselves, not in the attitudes of criminal justice officials. A closer look reveals that the even the term dismissal is misleading. Many of these cases are not really lost, as some critics of the system argue. In San Diego, for example, almost half of the dismissals involved an action that kept the defendant in the criminal justice system: 11 percent were diverted, 27 percent were referred for other prosecution, and 10 percent were covered by another case (for a combined total of 48 percent). This is not the sign of soft-hearted judges or a “weak” system. The data on rejections and dismissals have important policy implications and how we view the justice system. Most important, they clearly indicate that dueprocess problems—illegal searches or coerced confessions—are not a major reason why cases are not prosecuted. (We will discuss this issue and the controversy over Supreme Court decisions on searches and interrogations in Chapter 5.) Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 0 0 0 0 R ape R obbery Aggravated assault Burglary 0% 0 0 0 0 0 Percentage of declinations Murder and manslaughter R ape R obbery Aggravated assault Burglary Most serious charge Diversion 0 Murder and manslaughter San Diego, California 1988 0% 0 0 0 0 0 0% Other prosecution 0 3 8 0 0 3% Other prosecution 59 39 49 30 50 51% Evidence 79 33 63 30 75 61% Evidence 0 0 0 0 0 2% Due process 15 46 36 60 3 19% Witness 8 2 1 0 0 13% Due process Arrests declined because of: 21 40 22 40 25 18% Witness Arrests declined because of: 8 9 6 8 30 11% Interest of justice 0 13 3 30 0 10% Interest of justice 5 1 0 1 0 3% Covered by other case 0 0 0 0 0 0% Covered by other case (continued) 5 3 7 2 17 4% Other 0 11 4 0 0 6% Other CHAPTER Percentage of declinations Most serious charge Diversion Why felony arrests are declined for prosecution Manhattan, New York 1988 T A B L E 3.2 64 3 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 1 0 Aggravated assault Burglary 0 0 0 2 2 Murder and manslaughter R ape R obbery Aggravated assault Burglary 25 26 17 4 20 27% Other prosecution 0 0 0 0 1 0% Other prosecution 12 21 27 22 20 14% Evidence 15 10 18 13 17 19% Evidence 0 0 0 0 0 0% Due process 10 17 27 22 0 6% Witness 0 0 1 0 0 0% Due process Cases dismissed because of: 11 26 21 33 15 14% Witness SOURCE: Bureau of Justice Statistics, The Prosecution of Felony Arrests, 1988 (Washington, DC: Government Printing Office, 1992). 11% Percentage of declinations Most serious charge Diversion 0 R obbery San Diego, California 1988 0 11 Murder and manslaughter R ape 0% Diversion Percentage of declinations Most serious charge Cases dismissed because of: Why felony arrests are declined for prosecution (continued) Manhattan, New York 1988 T A B L E 3.2 6 5 4 31 30 7% Interest of justice 13 13 4 4 2 10% Interest of justice 13 5 3 4 0 10% Covered by other case 6 3 4 3 14 6% Covered by other case 32 23 22 18 30 25% Other 54 48 53 47 39 51% Other THE GOING RATE 65 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 66 CHAPTER 3 They accounted for only 15 percent of the rejections and none of the dismissals in San Diego. Equally important, due-process problems arose primarily in drug and weapons cases. They accounted for only 1 percent of the rejections of robbery cases and 8 percent of the burglary rejections. In short, thousands of criminals are not “beating the system” in the early stages of prosecution because of legal “technicalities” or loopholes. (We will look more closely at plea bargaining and some other alleged loopholes in the system in Chapter 8.) The most important point in this discussion is that a high degree of screening occurs as cases flow through the system, from arrest to a final decision to prosecute. The weak cases are screened out, leaving only the strong cases where the evidence of guilt of fairly strong. Bowen’s research on plea bargaining in King County (Seattle), Washington, found that the main concern of the prosecutorial charging unit was whether prosecutors felt they could get a conviction.13 This more than anything else explains the fact that 95 percent of all convictions are the result of guilty pleas: all the cases at this point are ones where there is strong evidence of guilt; the weak cases have been disposed of. (We will come back to this in Chapter 8 when we discuss whether plea bargaining is a “loophole” that allows criminals to “beat” the system.) Once the weak cases are out, the system becomes tough, and as we already mentioned, it has gotten much tougher over the course of forty years. SENTENCING: THE GOING RATE GETS TOUGHER It is fair to say that the single most dramatic change in criminal justice has been a revolution in sentencing, which has produced the enormous growth of the prison population. “Sentencing,” however, is a complex and multidimensional phenomenon, including a number of procedures, some of them largely hidden. The best example is probably California where more people enter prison as a result of parole revocation than by judicial sentencing. Sentencing by judges involves two basic decisions: first, whether to sentence the convicted offender to probation or to prison; second, if prison, the length of the prison term. Both decisions have been greatly affected by changes in state and federal laws of sentencing over the last forty years. The most important are mandatory minimum sentencing laws that both mandate a prison sentence for conviction of certain offenses and require a minimum term of imprisonment for those and other crimes. Other changes, meanwhile, affect the amount of time served by prisoners. Many states have revised their “good-time” laws to deny eligibility for conviction on certain offenses. This has the effect of delaying parole eligibility and extending prison terms. Additionally, many states have adopted “truth-in-sentencing” laws that require a prisoner to serve 85 percent of his or her official sentence. A 1994 federal law required states to adopt the 85 percent rule to qualify for federal funds for prisons. By 2008 thirty-five states and the District of Columbia had adopted the 85 percent rule.14 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 67 The 2009 BJS data on sentences for felony convictions indicate a criminal justice system that is extremely harsh. Half of all convicted murderers received a sentence of life, and another 70 percent received maximum sentences of ten years. Among convicted robbers, 20 percent received maximum sentences of ten years and 20 percent received sentences of six to ten years (for a combined total of 40 percent of all robbers). About half (49 percent) of all convicted robbers received sentences of up to two years, and another 24 percent received sentences of between two and four years. All of these sentences are longer than those reported in earlier BJS reports.15 In the real world of criminal justice, the judge’s sentence is one thing, but actual time served is something different. A 2012 report on Time Served by the Pew Center on the States detailed the procedures by which states have increased the length of prison terms just between 1990 and 2009. The average time served for prisoners released in 2009 was 36 percent longer than in 1990. The increase was fairly consistent across types of crime. Drug offenders in 2009 had served an average of 2.2 years, compared with 1.6 years in 1990 (an increase of 36 percent). Offenders sentenced for violent crimes served an average of 5 years in 2009 compared with 3.7 in 1990 (a 37 percent increase).16 A number of specific changes in each state contributed to the increasing time served. In Florida, for example, a 1995 truth-in-sentencing law required prisoners to serve 85 percent of their sentence, thereby delaying parole eligibility dates. Interestingly, the state legislature voted unanimously for the law, which applied to all prisoners, regardless of the seriousness of their conviction offense. Other laws increased the severity of punishments. For any crime involving the use of a gun, the sentence range became ten to twenty years to life imprisonment. If anyone was wounded or killed, there was a mandatory twenty-five years to life sentence. Revisions to the state criminal code in 1997, meanwhile, increased the sentences for many crimes, added some mandatory imprisonment provisions, and gave judges greater discretion in sentencing. The effect of these changes was to give prosecutors greater leverage in plea bargaining, which allowed them to get pleas involving prison terms that avoided the harsh potential sentences but were still longer that the previous going rate.17 California, meanwhile, also adopted an 85 percent truth-in-sentencing law and enacted its famous “three strikes and you’re out” law in 1994. Other states adopted these and other provisions that helped to increase the overall time served by offenders sentenced to prison. How Do We Compare? An International Perspective on the Going Rate It is useful to put the U.S. criminal justice system in perspective. How does the going rate for crime in the United States compare with its counterpart in other countries? A standard liberal criticism is that our criminal justice system is far more punitive than that of any other country. Conservatives, meanwhile, argue that we are too lenient and fail to punish criminals. James Lynch’s careful analysis of comparative data suggests that both liberals and conservatives are clinging to their favorite myths on this question.18 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 68 CHAPTER 3 On one hand, we do lock up (in both prisons and jails) a huge number of people: 2.2 million in 2012. We already have the highest incarceration rate in the world (716 per 100,000 in 2011, including both the prison and jail populations). And as our previous discussion indicates, we are fairly tough on those offenders whom we manage to arrest. From this perspective, it is hard to say that we are soft on crime. At the same time, however, our high incarceration rate is mainly the result of our high rates of violent crime. Before the Great American Crime Drop., the U.S. murder rate was four times higher than Canada’s and ten times higher than England’s and West Germany’s. Our robbery rate was five times higher than those of England and West Germany. These differences have narrowed in recent years because of the Great American Crime Drop (see Chapter 1), but our rates of violent crimes are still much higher than those of other industrialized societies. Violent crimes are more likely to result in prison sentences, and armed robbery more likely to result in a prison sentence than unarmed robbery. Lynch points out that a far higher proportion of robberies in the United States are armed than in other countries. In other words, our high incarceration rate is partly as a result of our high rates of those crimes that typically send an offender to prison.19 The relevant question becomes: Is the going rate for particular crimes significantly higher in the United States than it is in other countries? Lynch estimated the chances of going to prison for a person arrested for murder, robbery, burglary, and larceny or theft in the United States, England, Canada, and West Germany. He found that a robber’s chance of going to prison was 36 percent in the United States, 41 percent in Canada, and 39 percent in the United Kingdom. The odds were lower only in West Germany. Additionally, the odds of going to prison were fairly similar for murder, burglary, and larceny in the three Englishspeaking countries. In terms of the tendency to send persons convicted of major felonies to prison, then, the United States is not that much more punitive than other countries 20 In terms of time served, Lynch found that the United States was significantly more punitive, especially for property crimes. He found that the average number of months served in prison for murder in the United States (50.5) was slightly higher than in England and Wales (43) but lower than in Canada (57). Average time served for robbery was somewhat higher in the United States and substantially higher for both burglary and theft. Burglars in the United States, for example, served an average of 16.06 months, compared with 5.23 in Canada and 6.72 in England and Wales. The gap was even greater for theft. Convicted thieves in the United States served an average of 12 months, compared with only 2 in Canada and 4.65 in England and Wales. And remember, the going rate has gotten much harsher since his study. Lynch’s comparative research highlights the fact that that then and now the going rate in the United States is far more punitive primarily with regard to time served. His study did not, however, include drug offenses, where the United States is particularly punitive in terms of both incarceration and length of sentences. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 69 THE COURTROOM WORK GROUP The going rate is established and maintained by the people who work in the criminal justice system. The phrase the system implies some impersonal entity, but in fact it is a process involving people who make a series of discretionary decisions day in and day out.21 Prosecutors, defense attorneys, judges, and to some extent police officers make up the courtroom work group, or what some refer to as the local legal culture. To understand how the system works, we need to examine how they go about their jobs: the decisions they make, the factors that influence them, and how they adjust to changes in the law or the workload. In perhaps the best study of this phenomenon, Nardulli, Eisenstein, and Flemming characterized local courthouses as communities. “After spending an enormous number of hours in various county courts,” they observed, “we became convinced that the concept of a courthouse community can be an immensely useful tool in trying to understand them.”22 In this context, community means that a group of people work together and have a mutual interest in getting the job done as efficiently as possible. The bureaucratic setting of the courtroom work group exerts a major influence on the decisions of individual officials. All criminal justice officials exercise enormous discretion, but there are important differences in the settings in which they work. Police officers generally work alone or in pairs, often with no witnesses. For this reason, police work has been characterized as a “low-visibility” activity. To be sure, if an officer makes an arrest, it will be reviewed by others: a supervisor will sign off on it and prosecutors and defense attorneys will review it. But if the officer does not make an arrest, the decision is not reviewed by anyone. Prosecutors, defense attorneys, and judges, on the other hand, work in the highly visible setting of the courthouse. Their actions also leave a paper trail that enhances accountability. The news media and the public are potential witnesses to decisions that occur in open court. Finally, other members of the work group constrain the decisions of individual members. A truly outrageous decision by a prosecutor is likely to be challenged by a defense attorney or judge. Bail amounts and plea agreements are, in fact, negotiated among work group members. As a result, the actions of courtroom officials are constrained by other officials. Working together every day, members of the courtroom work group reach a general consensus about how different kinds of cases should be handled. As we will see in Chapter 8, this involves a shared understanding about how much cases are “worth.” There are “heavy” cases (that is, serious violent crimes) and “garbage” cases (relatively minor theft). Shared understandings of these value judgments helps to move cases along quickly. An Administrative System of Justice Conflict between prosecution and defense is the exception rather than the rule in the U.S. criminal justice system. In theory we have an adversarial system of justice. The bedrock principle of the Anglo-American system of justice is that a person is innocent until proven guilty and that the state has to prove guilt Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 70 CHAPTER 3 beyond a reasonable doubt. Additionally, the defendant has a right to challenge the prosecutor’s case, with the assistance of counsel, in a public trial overseen by a neutral judge. This is different from the inquisitorial system of justice, where there is a presumption of guilt and the rights of defendants are not protected the way they are in the U.S. system. The reality of criminal justice, however, is that we have an administrative system of justice. Few cases are settled through a public trial, about 5 percent in the most recent data. In an administrative system of justice there is no public clash between prosecution and defense. That occurs only in the few celebrated cases, for example the 2013 trial of George Zimmerman for shooting Trayvon Martin in Florida. In our administrative system of justice, decisions are quietly negotiated among members of the courtroom work group, with a high degree of consensus and cooperation. A study of nine courts by the National Center for State Courts found that work group members in each court shared a “norm of proportionality,” that is, of how much different cases are worth. Experts on plea bargaining describe the process as a “supermarket,” with set prices and a high volume of business.23 Criminologist Robert Bohm has labeled it “McJustice,” arguing that the system of high volume predictable outcomes resembles the way McDonalds sells hamburgers. (His argument is an application of George Ritzer’s broader argument that all of society reflects a similar “McDonaldization.”)24 Frederic Suffet’s study of bail setting offers an excellent illustration of the consensus and cooperation that prevail in the courtroom work group. (His work is several decades old now, but more recent studies have only confirmed his analysis of the basic dynamics of the bail-setting process.) Only 3 percent of the cases he examined involved any conflict over the bail decision; some disagreement arose in another 9 percent.25 Over the years, the members of this work group had developed a shared understanding about how much bail to set for different kinds of cases—in other words, how much each case was worth. In her study of plea bargaining, Alissa Pollitz Worden found a high degree of judicial agreement with prosecutorial sentence recommendations. She speculated that going rates “may be so predictable that a prosecutor need not make a formal recommendation in order to ensure that a sentence bargain will be honored by the court.”26 Deirdre M. Bowen’s research on King County (Seattle), Washington, found that the principal concern of the prosecutor’s office screening unit was whether or not there was sufficient evidence to secure a conviction. There was also a high degree of consensus about how much particular cases were worth, to the point where participants classified about 70 percent of cases as “no-brainers,” with no disagreement. Amplifying other studies, she found that another 30 percent did involve some disagreements and involved more genuine negotiation.27 Another example of the courtroom work group in operation at a different decision point is John Rosecrance’s study of presentence investigation (PSI) reports by probation officers. In theory, the PSI is an independent evaluation of a convicted offender’s social history, taking into account criminal record, employment history, family status, and so on. Yet Rosecrance found that probation officers (POs) classified offenders quickly on the basis of their offense and prior record. Even more important, they based their recommendations on what Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 71 they thought judges and prosecutors wanted. The California POs he studied were in regular contact with prosecutors and discussed their cases with them. They rarely challenged plea agreements, which often included an understanding about the sentence. As one PO put it, “It’s stupid to try and bust a deal… . Who needs the hassle? … Everyone, including the defendant, has already agreed.”28 Nardulli, Eisenstein, and Flemming add the important point that courtroom work groups vary from jurisdiction to jurisdiction. Each courtroom community has its own “distinctive character.” Typically, one person plays “a dominant role… by virtue of personality, professional skills (or reputation), political power, longevity, or some other attribute.”29 Ulmer’s study of three Pennsylvania courts found important differences related to the stability of the membership in local work groups. In the wealthy suburban court system (“Rich County”), there was a high degree of membership stability and a culture of understanding and collegiality. In the large urban court (“Metro County”), on the other hand, there was considerable turnover in the prosecutor’s office, which resulted in conflict between prosecutors and defense attorneys and close relations between the defense attorneys and judges. The Metro County example illustrates the extent to which other members of a courtroom work group adjust to some kind of disruption arising from one member of the group.30 Research on case processing dispels the popular belief that heavy case loads are the driving factor in plea bargains and the major cause of delays. A National Center for State Courts study found that efficient case processing was not necessarily related to caseloads and staff resources. The more efficient court had a strong a sense of mutual respect among work group members. Prosecutors and defense attorneys regarded each other as competent and well prepared. Even disagreements over evidence-related issues involved mutual respect for the other side’s professionalism. In the slower courts, work group members did not respect each other’s competence, and the resulting questions and misunderstandings slowed down the processing of cases.31 The Limits of Reform The courtroom work group has enormous power to limit, frustrate, or even block reforms in the justice system. A state legislature might pass a new law, or the Supreme Court might issue a landmark ruling, but that does not guarantee that the process will really change. Our capacity to make significant changes in how the system works—in the interest of more effective crime control, for example—is extremely important. Remember, we are searching for policies that will help reduce crime. Assuming we find some policies that do work, we have to be able to implement them and change how the system works. A few examples illustrate the power of the courtroom work group to frustrate reforms. The Supreme Court ruled in 1967 that defendants in juvenile court have a constitutional right to an attorney (In re Gault). Barry Feld, however, found that only half (47.7 percent) of the kids in Minnesota juvenile courts in 1984 actually had legal counsel. State officials simply did not comply with the law.32 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 72 CHAPTER 3 The Supreme Court ruled in 1963 (Gideon v. Wainiwight) that adult felony defendants have a constitutional right to an attorney. A recent report by the Constitution Project, however, found that because of the resource crisis in criminal justice (see Chapter 1), many public defenders offices are overwhelmed with cases and cannot provide meaningful representation for their clients. Some public defenders have even threatened to or actually have refused to accept more cases.33 Congress passed a “speedy trial” law in 1974, and several states enacted similar laws. Malcolm Feeley, however, found that these laws had almost no effect on the flow of cases. All members of the courtroom work group— judges, prosecutors, and defense attorneys—had their own reasons for delaying cases. The laws permit exceptions to the requirement, and officials take advantage of them. As one judge explained, “Our court has figured out ways to deal with the [speedy trial] act that don’t cause us to change our practices at all.”34 Many states passed “three-strikes” laws in the 1990s, but with the exception of California, prosecutors in most states were simply not using the law. Wisconsin had used it only once in a year and a half, whereas five other states had not used it at all. Even in California, use of the law varies tremendously by jurisdiction. Out of 8,381 inmates serving a third-strike sentence in California in 2008, 3,140 (or 37 percent) were sentenced in Los Angeles County. San Diego County had sentenced 659, and San Francisco County only 39.35 In Chapter 8, we will see how South Carolina courtroom work groups adapted to reduce the number of juveniles charged with sex offenses who would suffer the registration and notification requirements of a harsh sex offender law. Passing a law, in short, does not guarantee that it will be used or used in a consistent manner in the same state. This is not the whole story, however. Although courtroom work groups have the capacity to evade or reduce the impact of harsh sentencing laws, they do not have the power to nullify the effect completely. The Sentencing Project, for example, argues that three-strikes laws have been used enough in several states to account for a part of the prison population growth. They estimated at one point that about 20 percent of all California prisoners were serving three-strike terms.36 The Pew Center for the States argues that the prison population explosion has been as a result in part of such things as three-strikes laws, mandatory minimum prison sentences, and truth-in-sentencing laws that require prisoners to serve 85 percent of their nominal sentence. In short, some changes in the law do work and have a significant effect on the going rate. Courtroom work groups can mitigate the impact of some laws to a certain extent laws but cannot nullify them completely.37 We should not be completely cynical about the prospects for change. Some reforms have been implemented and their effects are readily apparent. A few examples illustrate this point. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 73 The Minnesota sentencing guidelines enacted in 1980 had the explicit goal of limiting the use of imprisonment. To a great extent this strategy has worked, and Minnesota has maintained the lowest incarceration rate of any state (with the possible exception of South Dakota).38 The federal sentencing guidelines imposed harsher sentences and limited the discretion of judges. Although some judges have found ways to get around the guidelines’ strict requirements, there has been a significant increase in imprisonment for federal crimes. And as we mentioned previously, the Pew Center for the States found that changes in sentencing laws designed to keep offenders in prison longer have in fact accomplished that.39 The lesson of the previous discussion is that while there are some enduring patterns of consistency in the processing of cases, the U.S. criminal justice system also has many complexities and contradictions. Our Sober Realism perspective requires keeping an eye on both of these factors and not lapsing into oversimplifications. The Dynamics of Reform In short, some reforms are successfully implemented and some are not. What makes the difference? A great deal depends on the nature of the reform itself. Some experts believe that modest reforms, which require only slight changes in how the courtroom work group operates, are more likely to succeed than sweeping changes. Raymond T. Nimmer argues that “the probability of system change is inversely related to the degree of change sought by a reform.” Eisenstein, Flemming, and Nardulli agree, concluding that “the more radical a proposed change the less likely is its adoption.”40 The three-strikes laws, for example, represent radical disruptions of established going rates, and probably for that reason have been ignored in most jurisdictions. In the conclusion of their study of courts and their communities, Eisenstein, Flemming, and Nardulli offer some other sobering conclusions about the possibilities for reform. On one hand, changes mandated from outside the courtroom work groups face serious obstacles. They agree with Feeley that work groups have enormous ability to resist change. At the same time, however, change initiated from within, by the work group itself, also faces major obstacles. Efforts by judges to speed up trials may be blocked by prosecution and defense attorneys.41 In short, some reforms do work. In our search for effective crime policies, we should not be cynical and assume that nothing works, or be naive in thinking that everything works. Our Sober Realism perspective involves calculating the impact of a proposed reform on the courtroom work group and other actors in the system. Justice Thermodynamics The systems perspective on the administration of justice helps us see how changes in one part of the system affect decisions in other parts. Malcolm Feeley suggests that a major change may set off a “chain reaction throughout the entire Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 74 CHAPTER 3 system,” forcing other officials to adapt and in some cases creating new and unanticipated problems.42 We explain this chain reaction effect in terms of “criminal justice thermodynamics.” You may remember from a physics class that the law of thermodynamics says that every action has an equal and opposite reaction. The justice system works in much the same way: actions produce reactions. Our law of criminal justice thermodynamics states: A major increase in the severity of the penalty will result in less frequent application of that penalty. Our law has an important corollary: The less often a severe penalty is applied, the more arbitrary will be the occasions when it is applied. The death penalty is an excellent example of the law of criminal justice thermodynamics. Because it is the ultimate penalty, it exerts enormous pressure on the courtroom work group. Many devices are used to evade its application (plea bargaining to a second-degree murder charge, demanding a jury trial, using the insanity defense, appealing on every potential issue, requesting pardon or commutation, and so forth). Thus, the action of the prosecutor in filing firstdegree murder charges (making the case eligible for the death penalty) causes a reaction by the defense. Because the death penalty is rarely used, its application is arbitrary. In the landmark case of Furman v. Georgia (1972), the Supreme Court characterized the application of the death penalty as being so rare that it is “freakish” and akin to being “struck by lightning.”43 Three-strikes laws are another excellent example. These laws provide severe sentences for people convicted of a third felony (part of the California law also applies to people with certain kinds of second felonies)—typically, life or a long mandatory prison term. Every study, however, has found that prosecutors rarely if ever use the law. And even in California, where it is used most often, it is primarily used by prosecutors only in certain counties.44 A study of correctional practices in New York illustrates how an increase in severity can produce adaptations that, in many respects, undermine the original intent of getting tougher with criminals. New York adopted a series of mandatory sentencing laws in 1973 and 1978, followed by several early release programs in 1987 and 1989. The result was an odd mix of indeterminate and mandatory sentencing policies. The prison population began to increase, but because of financial constraints, the state did not build all of the planned new prisons.45 The three new early release programs—shock incarceration, “earned eligibility” for parole, and Comprehensive Alcohol and Substance Abuse Treatment (CASAT)—gave correctional officials enormous discretion over offenders’ eligibility for early release. They began using these programs to reduce prison populations. Under earned eligibility, inmates gained a “presumption of release” for merely participating in a treatment, educational, or work program. Thus, they received a reward for what in the past had been considered minimal good Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 75 conduct. The net effect was to release them early and to undercut the intent of mandatory minimum sentencing laws. Meanwhile, many offenders released under work release programs were allowed to live at home and report in twice a week. More than one-third of the participants in this “day-reporting” program had been convicted of violent crimes. Here, also, correctional officials gained a vast amount of hidden discretion and used it to undercut the supposedly tough sentencing laws. WRONGFUL CONVICTIONS: HOW COMMON ARE MISTAKES? There is the notorious case of the Texas lawyer representing a defendant facing a possible death sentence who fell asleep at trial. (The defendant was sentenced to death, but won a new trial on appeal.)46 Do things like this happen often? How many miscarriages of justice do occur? Are innocent people convicted and sentenced to prison? Are some even sentenced to die? We conclude our discussion of how the system works by examining fundamental questions about fairness. The short answer is that of course mistakes occur, either because of negligence, incompetence, or bias. It is unreasonable to expect perfection in any large complex operation, including the criminal justice system. The news brings us stories of factually innocent people being released from prison after serving many years. Celebrated cases, we have argued, distort our perceptions of how the criminal justice system operates on a routine basis. The question is, how frequently do serious mistakes occur? How often are factually innocent people convicted, and how often are they sentenced to long prison terms or even the death penalty? The administration of justice is a human process, involving day-in, day-out decisions by members of the courtroom work group, and it is inevitable that some mistakes will occur. We want to know, how often? Unfortunately, we only learn about the mistakes that are uncovered. We cannot know about mistakes that remain hidden, leaving an innocent person to serve many years in prison, or even to die there. In 1992 Barry Scheck and Peter Neufeld established the Innocence Project at Cardozo Law School in New York City to provide legal assistance to convicted offenders on DNA issues. By 2012, 302 convicted offenders had been exonerated and released as a result of DNA testing that either confirmed their innocence or identified the real offender. They had served an average of 13.6 years in prison before their release. Eighteen had been sentenced to death and served time on death row; another 16 had been charged with capital crimes, but were not sentenced to death. Larry Mayes, for example, served 18 1/2 years in prison in Indiana after being wrongfully convicted of rape and robbery and sentenced to 80 years in prison. Local Innocence Projects have been established in forty-eight states and the District of Columbia, with some states having several local chapters.47 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 76 CHAPTER 3 How can an innocent person be convicted of murder and sentenced to death or life in prison? The Innocence Project analyzed its cases and found that 72 percent involved, at least in part, an erroneous eyewitness identification. Improper or invalid forensic evidence were a factor in 50 percent of the cases. (The percentages add up to more than 100 because many cases involve two or more factors.) False confessions were a factor in 25 percent, and 18 percent involved false or incorrect information from informants. Wrongful convictions involve a strong racial disparity, with 62 percent of the Innocent Projects 302 cases involving African Americans. Errors such as these raise disturbing questions about the courtroom work group. If the police or prosecutor engaged in misconduct, why didn’t the defense attorney or judge notice and blow the whistle? If a defense attorney was grossly incompetent, why didn’t the judge intervene? The answer to these questions goes to the nature of the courtroom work group. The basic norms of the group emphasize cooperation and not challenging other members of the group. Although this facilitates efficient handling of cases in the vast majority, the cases handled by the Innocence Project indicate that it can also cover up willful misconduct or incompetence—and send an innocent person to death row. Most of the Innocence Project cases were celebrated cases to begin with: usually gruesome murders or rape and robbery crimes. Exoneration through DNA evidence automatically moved all of them into the celebrated case category. The question for us is, how often do mistakes happen in routine cases? How often do they occur in run-of-the-mill burglary and robbery cases? What is the overall error rate? Are there just a few celebrated cases, or do miscarriages of justice happen all the time? C. Ronald Huff and his colleagues developed an ingenious method for estimating the number of wrongful convictions. They surveyed 229 Ohio criminal justice officials (judges, prosecutors, public defenders, police), along with attorneys general from all states, and asked for their estimate of the frequency of wrongful convictions. After eliminating the extremely high and low estimates, they concluded that errors occur in slightly less than 1 percent of all felony cases.48 What are we to make of this estimate? From one perspective, an error rate of less than 1 percent is good. We should all be so successful in whatever we do. It compares favorably with the false-positive and false-negative rates we will encounter with the prediction problem in Chapter 4. But Huff and his associates projected this error rate to the national level and estimated 5,729 wrongful convictions in 1981 (one-half of 1 percent of the total of 1,145,780 convictions across the country). Almost 6,000 innocent people convicted of a felony every year is a shocking fact to contemplate. A recent study of wrongful convictions reached an even higher estimate of mistakes. Because the state of Virginia had preserved the forensic evidence for cases since the 1970s, the Urban Institute study was able to study cases from 1973 to 1987. Focusing only on sexual assault and homicide cases, they found 634 cases eligible for reanalysis (out of 3,000 cases with some retained evidence), Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 77 which had resulted in the conviction of 715 individuals. The evidence was then sent to a private laboratory for analysis. Taking a conservative approach, the study came up with two estimates. The high estimate was that wrongful convictions occurred in 7.8 percent of convictions (56 out of 715), whereas the lower estimate was 5.3 percent (38 out of 715).49 The estimates in the Urban Institute study shocked many observers. Even the low estimate was more than five times higher than the 1 percent from the previous studies. An important note of caution is in order, however. These estimates were for the crimes of sexual assault and murder only, whereas Huff’s estimate was for all felony cases. The Urban Institute estimates, therefore, cannot be generalized for all cases. Robbery and burglary cases rarely leave DNA evidence. Nonetheless, if wrongful convictions occur in even 5 percent of all sexual assault and murder cases, the kind of cases most likely to result in long prison terms, the justice system has some serious problems. As for the death penalty, Hugo Bedau and Michael Radelet estimated that for every 20 persons executed in this country since 1900, at least 1 innocent person was convicted of a capital crime. They found a total of 343 persons mistakenly convicted of capital crimes; 25 were actually executed, whereas many of the others served prison terms of up to twenty-five years.50 In short, serious mistakes do occur in the criminal justice system. Some innocent people are in fact convicted and sent to prison—in some cases for long prison terms. We need to be ever-vigilant to guard against such mistakes and develop appropriate policies that will help prevent them. CONCLUSION A going rate for crime exists in the United States. If you are convicted of a certain crime, given its seriousness and your prior record, it is possible to predict the outcome of your case with a high degree of accuracy. The going rate can vary among jurisdictions but is fairly stable within each one. It is established and maintained by the members of the courtroom work group, who work together daily. Finally, the going rate has become much harsher over the last four decades. The concept of the going rate is extremely important for our search for sensible and effective crime policies for two reasons. First, many proposed policies are based on mistaken assumptions about how the system works. They do not take into account the fact that the administration of justice is stable, consistent, and predictable and that it is relatively tough on those offenders who are caught and prosecuted. Second, many proposed reforms would have trouble being implemented. The going rate is determined by the courtroom work group, which has tremendous power to adapt and either ignore or evade the intent of a new law or policy. Simply passing a new law does not necessarily mean that the intended changes will occur. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 78 CHAPTER 3 NOTES 1 See the Sentencing Project website: www.sentencingproject.org. Accessed February 10, 2014. See also Marc Mauer [Sentencing Project Director], Race to Incarcerate (New York: The Free Press, 2013). 2 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: the New Press, 2010). 3 Pew Center for the States, Time Served: The High Cost, Low Return of Longer Prison Sentences (Washington, DC: Pew Charitable Trusts, 2012). 4 Samuel Walker, Cassia Spohn, and Miriam DeLone, The Color of Justice: Race, Ethnicity, and Crime in America, 5th ed. (Belmont, CA: Wadsworth, 2012). Michael Tonry and Matthew Melewski, “The Malign Effects of Drug and Crime Control Policies on Black Americans,” in Michael Tonry, ed., Crime and Justice: A Review of Research (Chicago: University of Chicago Press, 2008), 1–44. 5 Marc Mauer, Race to Incarcerate (New York: The Free Press, 2013). 6 Charles Silberman, Criminal Violence, Criminal Justice (New York: Random House, 1978), 258. 7 Bureau of Justice Statistics, Felony Defendants in State Courts, 2009 (Washington, DC: Department of Justice, 2013). 8 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009. 9 See the discussion of the barriers faced by prisoners reentering society in Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (New York: Oxford University Press, 2003). 10 Bureau of Justice Statistics, Felony Sentences in Large Urban Counties, 2009, 15. 11 Joan Petersilia, Racial Disparities in the Criminal Justice System (Santa Monica, CA: Rand, 1983), 21. 12 Lawrence W. Sherman and Barry Glick, The Quality of Police Arrest Statistics (Washington: The Police Foundation, 1984). 13 Deirdre M. Bowen, “Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt Plea Bargaining Strategies to Increased Formalization,” Justice Quarterly 26 (March 2009): 2–29. 14 Pew Center on the States, Time Served. Bureau of Justice Statistics, Truth in Sentencing in State Prisons (Washington, DC: Department of Justice, 1999). 15 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009, Appendix. 16 Pew Center on the States, Time Served. 17 Ibid. 18 James Lynch, “Crime in International Perspective,” in James Q. Wilson and Joan Petersilia, eds., Crime (San Francisco: ICS Press, 1995), 11–38. 19 Lynch, “Crime in International Perspective.” 20 Ibid. A more recent and more thorough analysis is Bureau of Justice Statistics, CrossNational Studies in Crime and Justice (Washington, DC: Department of Justice, 2004). NCJ 200988. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE GOING RATE 79 21 Samuel Walker, Taming the System: The Control of Discretion in Criminal Justice, 1950– 1990 (New York: Oxford University Press, 1993). Michael R. Gottfredson and Don M. Gottfredson, Decision Making in Criminal Justice, 2nd ed. (New York: Plenum, 1988). 22 Peter F. Nardulli, Roy B. Flemming, and James Eisenstein, The Tenor of Justice (Urbana: University of Illinois Press, 1988). 23 Brian J. Ostrom and Roger A. Hanson, Efficiency, Timeliness, and Quality: A New Perspective from Nine State Criminal Trial Courts (Williamsburg, VA: National Center for State Courts, 1999). Available on the National Center for State Courts website. Malcolm Feeley, “Perspectives on Plea Bargaining,” Law and Society Review 13 (Winter 1979): 199. 24 Robert M. Bohm, “McJustice’: On the McDonaldization of Criminal Justice,” Justice Quarterly 23 (March 2006):127–146. George Ritzer, The McDonaldization of Society, 6th ed., (Thousand Oaks: Pine Forge Press, 2011). 25 Frederic Suffet, “Bail-Setting: A Study in Courtroom Interaction,” Crime and Delinquency 12 (1966): 318–331. 26 Alissa Pollitz Worden, “The Judge’s Role in Plea Bargaining: An Analysis of Judges’ Agreement with Prosecutors’ Sentencing Recommendations,” Justice Quarterly 12 (June 1995): 273. 27 Deirdre M. Bowen, “Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt to Plea Bargaining Strategies to Increased Formalization,” Justice Quarterly 26 (March 2009), 2–29. 28 John Rosecrance, “Maintaining the Myth of Individualized Justice: Probation Presentence Reports,” Justice Quarterly 5 (June 1988): 235–256. 29 Nardulli et al., Tenor of Justice, 41. 30 Jeffrey T. Ulmer, Social Worlds of Sentencing, Court Communities Under Sentencing Guidelines (Albany: State University of New York Press, 1997) especially Table 8.1. 31 Ibid. 32 Barry C. Feld, Justice for Children: The Right to Counsel and the Juvenile Courts (Boston: Northeastern University Press, 1993), 55. 33 National Right to Counsel Committee, Justice Denied America’s Continuing Neglect of Our Constitutional Right to Counsel (Washington, DC: The Constitution Project, 2009). 34 Malcolm Feeley, Court Reform on Trial (New York: Basic Books, 1983), 173. 35 Ashley Nellis and Ryan S. King, No Exit: The Expanding Use of Life Sentences in America (Washington, DC: The Sentencing Project, 2009). 36 Ibid. 37 Pew Center for the States, Time Served. 38 Terance D. Miethe and Charles A. Moore, Sentencing Guidelines: Their Effect in Minnesota (Washington, DC: Department of Justice, 1989). Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online. Available on the SUNY Albany website, http://www.albany.edu/sourcebook/. Information about the Minnesota sentencing guidelines is available on the Minnesota Sentencing Guidelines Commission website, http://mn.gov/sentencing-guidelines/. 39 Pew Center for the States, Time Served. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 80 CHAPTER 3 40 Raymond T. Nimmer, The Nature of System Change (Chicago: American Bar Foundation, 1978), 181. Eisenstein et al., Contours of Justice, 294. 41 Eisenstein, et al., 291–305. 42 Malcolm Feeley, Court Reform on Trial, 184. 43 Furman v. Georgia, 408 U.S. 238 (1972). Raymond Paternoster, Capital Punishment in America (Lexington, MA: Lexington Books, 1991). 44 Nellis and King, No Exit. 45 Pamala L. Griset, “The Politics and Economics of Increased Correctional Discretion over Time Served: A New York Case Study,” Justice Quarterly 12 (June 1995): 307–323. 46 “Inmate Whose Lawyer Slept Gets New Trial,” The New York Times, June 4, 2002. 47 The Innocence Project, www.innocenceproject.org. Accessed February 10, 2014. 48 C. Ronald Huff, Arye Rattner, and Edward Sagann, “Guilty Until Proven Innocent: Wrongful Convictions and Public Policy,” Crime and Delinquency 32 (October 1986): 518–544. C. Ronald Huff, Arye Rattner, and Edward Sagarin, Convicted but Innocent (Beverly Hills, CA: Sage, 1996). 49 John Roman, Kelly Walsh, Pamela Lachman, and Jennifer Yahner, Post-Conviction DNA Testing and Wrongful Conviction (Washington, DC: Urban Institute, 2012). 50 Hugo Adam Bedau and Michael L. Radelet, “Miscarriages of Justice in Potentially Capital Cases,” Stanford Law Review 40 (November 1987): 21–179. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 4 The Prediction Problem T he Crime Commission model of the criminal justice system illuminates the flow of cases through the system, the various “exit” points where cases leave the system, and the fact that each point in the system involves discretionary decisions. In this chapter we explore the fact that many of those discretionary decisions involve predictions about the person involved: as a citizen on the street, a suspect, a defendant, as a convicted offender, as a prisoner, and so on. The questions we will examine are, how good are those predictions? What kind of evidence are they based on? Is there any way we can improve the quality of the predictions—for example, by making more accurate decisions about which convicted offenders are safe to place on probation and which should go to prison? As a report by the Pew Center on the States puts it, “Every day, criminal justice officials make decisions that have enormous implications for public safety and spending.”1 A short and incomplete list of discretionary decisions includes the following: A police officer stops a juvenile on the street at night, and finding him in possession of a bottle of bourbon takes the bottle, empties it, and tells the kid to go home immediately. The officer’s decision represented a prediction about the kid and his future behavior: that he is not dangerous, is unlikely to commit any serious crimes, and therefore does not need to be arrested as a “minor in possession.” A convicted robber comes before the judge. He has a long criminal record: several arrests as a juvenile (but with no incarcerations), two burglaries (probation for both offenses), and a prior robbery for which he received a short prison sentence. The judge sentences him to a five- to seven-year term in prison. The sentence is a prediction: that given his prior record this person is likely to commit more burglaries or robberies in the near future. A young woman is convicted of possession of stolen property. The property actually belonged to her boyfriend, who was convicted and sentenced to prison for a series of household burglaries. The judge sentences her to 81 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 82 CHAPTER 4 probation, deciding that given the facts of the case she is unlikely to commit a serious felony and does not need to go to prison. A parole officer discovers technical violations by a parolee: two curfew violations and some beer in his apartment. The officer could write up charges of formal violations but decides not to. His thinking is that the violations are relatively minor, the parolee has an otherwise decent record on parole, and has expressed remorse for the crime that sent him to prison (an unarmed robbery). The parole officer decides to give him a break, believing that he is unlikely to commit another robbery or other serious crime in the immediate future. These cases are fairly typical of decisions that are routinely made day in and day out in the criminal justice system. All are discretionary decisions, and the two cases in which the person got the benefit of the doubt are unlikely to be discovered by any supervisor or other official. In this chapter we will look at such decisions as predictions—predictions about a person’s future behavior. The central question is whether these predictions have any validity. Are they based on solid evidence (for example, about the offenders probability of reoffending), or just a hunch on the part of the decision maker? And what informs those hunches? Experience? If so, what kind of experience? A special case that sticks in the decision-maker’s mind (the equivalent of our “celebrated case”), or a thoughtful consideration of many cases? And to what extent are hunches based on stereotypes about social class, race or ethnicity, or gender—stereotypes that involve unconscious judgments about “good” and “deserving” people as opposed to “bad” people. Unconscious assumptions about race are prevalent in U.S. society, and there is now a science of unconscious racism. Experiments using police shoot or don’t shoot computer simulations found that many subjects are more likely to shoot the unarmed African American than the white “suspect.”2 THE RISK ASSESSMENT TRADITION What we demand is reliable predictions that are grounded in scientific evidence. Remember, our goal in this book is to identify ways to reduce crime. Better predictions about future criminal behavior would allow judges, for example, to predict which convicted offenders are likely to go on to become career criminals and which are likely to desist from criminal activity. In fact, there has been a long history of attempts to develop evidence-based tools to help criminal justice officials make better predictions. It is known as risk assessment and has been concentrated in the area of corrections. A 2011 report on Risk/Needs Assessment 101 by the Pew Center on the States discusses how effective risk/needs assessment tools can improve the decisions made by courts (in bail decisions, sentencing, revocations decisions, and the conditions of supervision), probation and parole agencies (in determining levels of supervision, specialized treatment needs, and revocation decisions), prisons and jails (in inmate Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE PREDICTION PROBLEM 83 classification systems, inmate programming), and parole boards (release decisions and conditions of supervision).3 The Pew report summarizes the seven risk/needs factors that research has identified. They fall into two categories: dynamic factors, which are changeable, and static factors, which are unchangeable. The seven factors include: antisocial personality patterns; pro-criminial attitudes; social supports for crime (that is, peers who are engaged in crime); substance abuse; poor family or marital relationships; school and/or work failure; and lack of pro-social recreational activities. Does the application of these factors in fact enhance decision making? And do the resulting decisions help to reduce crime? In this chapter we will look at the evidence on our ability to predict future criminal behavior. In fact, we will examine some notable risk assessment instruments to see how they perform. But remember the standard we set in Chapter 1. We are not looking for or expecting perfection. That is an unreasonable dream. In this book we are looking for policies that make some meaningful improvements over current practice. That is a modest, sober realistic goal. We begin with a review of the subject of career criminals. This was a hot criminal justice issue in the 1980s, and the research it stimulated provides some good evidence for our discussion. To understand the interest in career criminals we need to begin with the project that initially inspired policy makers, Marvin Wolfgang’s birth cohort study. SEARCHING FOR THE CAREER CRIMINAL The career criminal was a major focus of crime control policy for many years. It is not quite the hot topic it was in the 1980s and is another example of the Fad Syndrome in criminal justice policy, in which a new idea arises, generates a lot of excitement and policy development, and then fades as research slowly undermines the assumptions. Nonetheless, the subject of the career criminal is relevant for our purposes. Several important crime control policies that we will examine in this book— preventive detention, major-offender prosecution programs, and selective incapacitation—are aimed at repeat offenders or career criminals. All of these programs assume that if we can identify and effectively respond to these offenders—through incapacitation, treatment, or another method—we could make significant reductions in crime. The search on career criminals that flourished in the 1980s taught us a lot—a lot about what we know and don’t know and about what we can and cannot do in terms of predicting future criminal behavior. These lessons will serve us well in assessing the merits of a number of crime control policies that we will consider in the chapters ahead. WOLFGANG’S BIRTH COHORT People have always talked about “hard-core” criminals, “repeaters,” “chronic recidivists,” or “career criminals,” but typically they did not define precisely Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 84 CHAPTER 4 who they were talking about. In fact they were often relying on myths and stereotypes about criminals. That changed with a landmark study conducted by Marvin Wolfgang, Robert Figlio, and Thorsten Sellin titled Delinquency in a Birth Cohort. Often referred to as the Wolfgang Cohort Study, it is one of the most important pieces of criminal justice research in the last fifty years, has had a profound influence on thinking about crime policy.4 Wolfgang’s birth cohort included all the males born in Philadelphia in 1945 and traced their careers through their eighteenth birthday in 1963. Using official records, including police and school records, the study reconstructed the criminal careers of a sample of 9,945 juveniles. The principal finding, which caught everyone’s attention, was that a small percentage of delinquents were responsible for a majority of all crimes and for about two-thirds of all violent crimes. As Table 4.1 indicates, 35 percent of the cohort had at least one officially recorded contact with the police. Of that group, 46 percent had no more contacts. Wolfgang labeled them “one-time offenders.” He divided the remaining 1,862 juveniles into two groups. The 1,235 with two, three, or four contacts were labeled the “non-chronic recidivists.” The remaining 627 with five or more contacts were the “chronic delinquents.” They represented 6 percent of the original cohort and 18 percent of the 3,475 delinquents. These 627 are the socalled career criminals. Several comments about Wolfgang’s data are in order. Most important, he measured delinquency in terms of officially recorded police contacts. Recall our discussion in Chapter 3 about the problems with official police arrest data, and how it certainly undercounts the number of people who in fact had some contact with the police.5 Obviously, many delinquents are never caught, and the actual prevalence of criminal behavior among the juveniles he studied was undoubtedly higher than 35 percent. Some may have had contact with the police, but the officer chose not to record it. Some of those with a recorded police contact, meanwhile, may have been picked up by mistake and should not be considered “offenders” at all. Also, many of the “one-time delinquents” committed other illegal acts but were never caught. And, finally, some “nonchronic delinquents” committed more than four crimes. T A B L E 4.1 Wolfgang’s birth cohort Number Percentage of original sample Total criminal offenses Percentage of total offenses Original sample 9,945 Delinquents 3,475 34.9 10,214 One officially recorded contact with police 1,613 16.2 1,613 15.8 Two to four contacts 1,235 12.4 3,296 32.3 627 6.3 5,305 51.9 F ive or more contacts SOURCE: Marvin Wolfgang, Robert M. Figlio, and Thorsten Sellin, Delinquency in a Birth Cohort (Chicago: University of Chicago Press, 1972). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE PREDICTION PROBLEM 85 Despite these limitations, however, the cohort study highlighted some important patterns in delinquency. First, it gave us the first clear picture of the prevalence of delinquency: that is, the percentage of any group of males who commit crime. Second, it gave us a good picture of the percentage we can consider career criminals. Finally, it documented the fact that most delinquents stop committing illegal acts at some point, and most of them stop relatively early. We do not know what makes them stop. Some “mature out.” Others may have be deterred by their contact with the police. Or perhaps their parents gave them a real tongue-lashing. Still others may be helped by the treatment program included in their juvenile court disposition, or someone may have gotten them involved in a local church or community group program that helped them. All we know for sure is that most juveniles who had a recorded contact with the police eventually stop their misbehavior or criminal activity. Wolfgang’s most important finding, and the one that excited policy makers, was the small group of 627 chronic recidivists that was responsible for more than half (52 percent) of all the crimes committed by the entire cohort and 63 percent of all the Index crimes (71 percent of the murders, 73 percent of the rapes, and 82 percent of all the robberies). The one-time offenders committed only 16 percent of the total; the nonchronic recidivists, the remaining 32 percent. The policy implications of these data are obvious: If we could successfully identify and effectively respond to that 6 percent, we could achieve a major reduction in serious crime. And the point is relevant for both liberal and conservative crime policies. If you are a liberal who believes in rehabilitation, identifying and successfully treating that 6 percent would achieve a huge reduction in crime. If you are conservative, you will argue that we can get a tremendous crime reduction by successfully incapacitating in prison that same 6 percent. OTHER COHORT STUDIES Wolfgang’s original findings have been confirmed by other cohort studies. He and his associates conducted a follow-up study of males and females born in Philadelphia in 1958. This was a larger cohort (28,338 subjects) and more representative in terms of race and sex. Following the cohort’s criminal careers between 1968 and 1974 (ages ten to eighteen), they found a similar pattern in criminal behavior: 33 percent had at least one recorded contact with the police, and the chronic recidivists represented 7.5 percent of the total cohort (compared with 6.3 percent in the original study).6 The 1958 cohort did commit more crimes. Remember, this study covered the late 1960s, when the crime rate soared. The murder rate was three times higher and the robbery rate five times higher than for the 1945 cohort. Thus, about the same percentage of cohort members became delinquent, but those who did committed more crimes and far more serious ones. Some people might question whether Philadelphia is representative of the rest of the country. Lyle Shannon studied three cohorts in Racine, Wisconsin, tracing the careers of 6,127 persons born in 1942, 1949, and 1955. Unlike Wolfgang, Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 86 CHAPTER 4 he followed his subjects into adulthood. Members of the 1942 cohort were thirtythree years old when the study ended. Shannon found that most of his subjects had at least one contact with the police: 68 percent of the 1942 group, 69 percent of the 1949 cohort, and 59 percent of the 1955 cohort (but the members of this last cohort were only twenty-two years old when the data collection ended, so it missed part of their high-crime years). These figures may seem frightening until we learn that most of the arrests were for relatively minor crimes. Part I Index crimes represented only 12.7 percent of all the arrests for the 1942 cohort and 15.9 and 24.6 percent for the 1949 and 1955 cohorts, respectively. These data confirm what criminologists have long known: that most males in this country break the law at some point in their lives, but that most of the lawbreaking involves minor crimes such as vandalism.7 The career criminal patterns in Racine closely resembled those in Philadelphia. Shannon found that 9.5 percent of the 1942 cohort had 51 percent of the police contacts, 8 percent of the 1949 group had 50.8 percent of the contacts, and 5.8 percent of the 1955 group had 50.8 percent of that group’s police contacts. Looking at felony arrests only, he found that people with four or more contacts represented 0.6 percent of the 1942 cohort but accounted for 27.1 percent of the felony arrests. For the 1949 group, 1.7 percent of the cohort had four or more contacts and were responsible for 44.1 percent of the felony contacts; for the 1955 group, 3.5 percent of the cohort had four or more and accounted for 63.8 percent of the felony contacts. The fact that the Racine findings parallel those from Philadelphia is significant. Racine is a relatively small Midwestern community, with a population of only 71,000 in 1950 and 95,000 in 1970. Racial minorities constituted only 11 percent of the population in 1970. Philadelphia in 1970 was the third largest city in the country, with a minority population of 33.6 percent. The Racine study suggests that Wolfgang’s most important finding holds true for other communities with different demographic characteristics. Additional support comes from David Farrington’s study of young men in London. Farrington found that 6 percent of his sample accounted for 49 percent of all the criminal convictions in the cohort.8 In short, there appears to be a near-universal pattern in which a small group of offenders account for a high proportion of all the crimes committed by their cohort. CAREER CRIMINALS: DEFINING OUR TERMS AND CONCEPTS Before going any further, it is important to clarify some of the terminology used in career criminal research.9 First, we can distinguish criminal careers from career criminals. Every offender has a criminal career. Some have short ones; others have long ones. Everyone who goes to school has an academic career. If you drop this and every other course tomorrow and never return to school, you have had an academic career—a short one. The kid who commits one act of minor vandalism has a criminal career—a short one. The career criminal, on the other hand, is the person with a long history of criminal activity. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE PREDICTION PROBLEM 87 Another basic concept is the prevalence of criminality. We define this in terms of participation in crime, which distinguishes between those who commit at least one crime and those who do not commit any. In the Wolfgang study 35 percent of the original cohort had a contact with the police, and so the prevalence of delinquency was 35 percent. To identify the real career criminals, we need to know the frequency of offending —that is, the rate at which active criminals commit crimes. As we will learn later, this issue has extremely important implications for crime policy. If the frequency is about five felonies a year, imprisoning offenders will have a certain crime reduction effect through incapacitation. But if the frequency is 144 felonies per year, the crime reduction effect will be much greater. Obtaining an accurate estimate of the frequency, then, is extremely important for assessing the impact of incapacitation. We will discuss this more in Chapter 7. Determining the seriousness of offending is also important, because we want to identify those who commit the more serious crimes. The beginning of a criminal career is referred to as the onset. Do career criminals begin earlier than one-time offenders? If they do, we might be able to spot them that way. Persistence refers to continuing criminal activity and desistance to stopping. The amount of time between onset and desistance is the career length. FROM RESEARCH TO POLICY Wolfgang’s original birth cohort study generated an enormous amount of excitement, stimulating further research and influencing the development of crime policies. The study was published at a politically opportune moment. By 1972, crime rates had been rising dramatically for a decade. The public was disillusioned with the liberal rehabilitation-oriented policies of the 1960s and was ready for programs that promised to “get tough” with hard-core criminals.10 Wolfgang’s data suggested that it might be possible to identify that small group. This book examines some of the specific policies inspired by the career criminal research. They include police programs that target suspected career criminals for intensive surveillance (Chapter 5), pretrial detention of allegedly “dangerous” offenders (Chapter 7), career criminal prosecution programs (Chapter 8), and selective incapacitation for repeat offenders (Chapter 7). Many of the treatmentoriented crime control policies proposed by liberals are also designed to deal with particular classes of offenders. Intensive probation programs (Chapter 11) are designed for high-risk offenders, whereas boot camps are designed for special categories of offenders. The data in Table 4.1 make it look simple: Spot the chronic recidivists and either treat or punish them accordingly. The problem, however, is that nothing is simple in the real world of criminal justice. Ideas that sound good in theory do not necessarily work out in practice. Let us look at some of the problems Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 88 CHAPTER 4 that arise when we try to translate Wolfgang’s birth cohort research into crime control policy. APPLICATION PROBLEMS As is so often the case with path-breaking research, Delinquency in a Birth Cohort raised many questions that needed to be answered. It was a major breakthrough to learn that we needed to focus on 6 percent of a cohort, but that was only the beginning. Criminologists have devoted an enormous amount of time and energy to answering some basic questions. First, exactly who are the career criminals? Second, when do they begin their criminal careers, and can we identify them early in their careers before they commit most of their crimes? Third, how much crime does each one commit? (As we will see shortly, this question is particularly important.) Fourth, what kinds of crime do they commit? Fifth, how long do they remain active criminals? Sixth, when do they stop? Seventh, why do they stop? Is it the result of some criminal justice policy or do they simply mature out? All of these issues are related to the bottom line question: Are there criminal justice programs or interventions that cause them to stop earlier than they otherwise would? The basic challenge confronting any policy directed toward career criminals is to identify and control these offenders and only them. It is a waste of time and money (and also unfair), for example, to imprison one-time offenders who do not commit more crimes. Traditionally, criminal justice officials believed that they could identify the repeat offenders or the truly dangerous criminals. Judges denied bail to defendants they “knew” were dangerous. Judges granted some convicted offenders probation because they “knew” they were not going to commit more crimes. Most of these decisions were based on hunch, guesswork, or just plain bias. At best, they relied on the seriousness of the immediate offense and the offender’s prior record. This issue is illustrated by the famous story about how one Supreme Court justice defined pornography. In the Supreme Court decision in Jacobellis v. Ohio (1964), Justice Potter Stewart famously admitted that he could not define “hardcore pornography” but said, “I know it when I see it.”11 Similarly, many criminal justice officials believe that they know a career criminal when they see one. But when you are talking about decisions that affect peoples’ lives and liberty—as in sending them to prisons—Justice Stewart’s I-know-it-when-I-see-it standard is not acceptable. The law demands that such important decisions have a solid empirical basis and that the outcomes are fair and equitable. In the real world of criminal justice, career criminal programs run into two serious problems. The first is correctly identifying the career criminal and not mistakenly identifying low-rate offenders. We call this the prediction problem. The second is accurately estimating how much crime these career criminals actually do (the frequency of offending)—and thus how much crime we will prevent by either imprisoning or treating them. Let us look at both of these problems in detail. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE PREDICTION PROBLEM 89 CONFRONTING THE PREDICTION PROBLEM Identifying someone as a career criminal is essentially a prediction. We are predicting that they will commit many crimes in the future. In this discussion, we are looking at the problem from the standpoint of the decision maker: the judge or the parole board. This is different from the perspective of the social scientist. The researcher may find strong correlations: for example, between prior drug involvement plus low income and reoffending. Correlations tell us a lot about general patterns of behavior. A judge, however, is not interested in general patterns. He or she has to make a decision about the convicted offender standing in front of the bench to be sentenced. We can use three basic methods for predicting criminal behavior. The first is an actuarial approach that relies on patterns of behavior among individuals with similar characteristics. Insurance companies use this method. The data indicate that young drivers have more accidents than middle-age drivers and that young men have much worse records than young women. Thus, insurance companies charge higher insurance rates for young people. A second approach uses the prior history of the individual. Someone has committed many crimes in the past, and so we predict that this behavior will continue in the future. Or, in education we say that you flunked the first test in this course and, therefore, we predict that you will flunk the next one. As we learned in Chapter 3, criminal justice officials typically use prior criminal record to assess offenders. Sentencing guidelines build prior record into the matrix, assigning more points for each offense. A third approach is clinical evaluation. Here, predictions about future behavior are based on the assessments of trained experts. A psychologist or social worker, for example, might conduct a personal interview, review the individual’s social history (family, employment record, and so forth), and possibly administer a psychological test. Presentence investigations by probation officers are an example of clinical evaluations based on an offender’s social history. Looking for Violent Delinquents: The Wenk Study The question is, can these techniques be used, alone or in combination, to successfully predict future criminal behavior? A good test was conducted on behalf of the National Council on Crime and Delinquency by Ernst A. Wenk, James O. Robison, and Gerald W. Smith. The results were not reassuring. Wenk and his colleagues began with a sample of 4,146 youths committed to the California Youth Authority (CYA). Of this group, 104 subsequently became “violent recidivists.” Wenk and his colleagues sought to develop a prediction instrument that would have identified these 104 individuals if it had been used in advance. Their instrument involved a combination of prior record and clinical assessment, using each juvenile’s prior criminal record and history of violence and substance abuse, among other factors. Clinical assessments were based on psychological tests and interviews.12 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 90 CHAPTER T A B L E 4.2 4 Number of youths predicted to be violent and nonviolent who proved to be violent and nonviolent, California, 1972 Predicted violent Predicted nonviolent Actual violent True positives: Violent persons correctly identified as and incarcerated 52 F alse-negatives: Violent persons incorrectly identified as nonviolent and not incarcerated 52 Actual Nonviolent F alse-positives: N onviolent persons incorrectly identified as violent and needlessly incarcerated 404 True negatives: Nonviolent persons correctly identified as nonviolent 3,638 SOURCE: Ernst A. Wenk, James O. Robison, and Gerald W. Smith, “Can Violence Be Predicted?” Crime and Delinquency 18 (October 1972): 393–402. Table 4.2 indicates the results. As is obvious, the method successfully identified only half (52) of the 104 who subsequently committed a violent act. Members of this group, referred to as the true positives, were correctly and positively identified as likely to commit a violent act. The other 52 slipped through the net, however. We call them the false-negatives. They were falsely (or incorrectly) predicted not to be violent. From this perspective, the prediction instrument was only 50 percent accurate; it missed half of those who actually became violent. But as we shall see, determining the correct success rate of the instrument is complex. Consider this problem. As Table 4.2 indicates, 404 people were incorrectly predicted as likely to become violent. These are referred to as the false-positives, incorrectly identified as potentially violent. What the false-positive problem means is that the Wenk method incorrectly identified about eight people for everyone who was successfully identified as likely to become violent. Translated into real-world terms, it would mean imprisoning eight nonrecidivists for every violent recidivist correctly identified. Obviously, the imprisonment costs and unnecessary deprivation of liberty would be enormous. (And as we will see in Chapter 7, this is what we have been doing as a society for the past forty years.) So what is the real success rate of the Wenk study prediction instrument? If we focus narrowly on identifying and locking up violent offenders, the instrument is only 50 percent successful: it correctly identify 52 of the 104 violent offenders, but it misses the other 52 as well, which is not so good when we are talking about violent crime. Taking a broader view, however, we can count the 3,638 true negatives as successes. Adding them to the 52 true positives, we find that the instrument is successful 88 percent of the time (3,690 out of 4,146). The Wenk study reveals the difficulty in predicting human behavior. Even with the extensive data available, the study’s method produced large numbers of both false-positives and false-negatives. Even though many people think that they “know” career criminals “when they see one,” in fact it is difficult to predict future behavior accurately. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE PREDICTION PROBLEM 91 We can illustrate the prediction problem by applying it to Wolfgang’s birth cohort. If juvenile court officials had prospectively used the same prediction instrument to identify the 627 chronic recidivists, they would have missed half of them (313) and then needlessly locked up 2,500 juveniles who would have been incorrectly labeled chronic recidivists (using the 1 in 8 ratio in the Wenk study). The same problem bedevils all prediction schemes, and as we shall see, that it affects both conservative-oriented incapacitation policies and liberaloriented rehabilitation programs. The Texas Death Row Inmate Study Another test of predicting dangerousness was conducted by the Texas Defender Service, the agency that represents death row inmates. It reviewed 155 cases in which prosecutors in recommending the death penalty had used experts to predict a defendant’s future dangerousness. It then examined the prison disciplinary records of these inmates with respect to violent behavior. The predictions of dangerousness were wrong in 95 percent of the cases. Only 8 of the 155 predicted dangerous inmates had records of “seriously assaultive behavior.” In fact, 20 percent of the inmates (n = 31) had no disciplinary violations of any sort. The remaining 75 percent had some record of disciplinary actions, but none involved serious assaults. Sixty-seven of the 155 inmates had been executed and had spent an average of twelve years on death row. Forty were on death row at the time of the study and had been incarcerated an average of eight years. Forty-eight inmates had their sentences reduced and had served an average of nearly twenty years.13 The Federal Sentencing Guidelines The 1987 law creating the federal sentencing guidelines also established the U.S. Sentencing Commission with a staff and a mandate to evaluate the implementation and impact of the guidelines. Because one of the goals of the guidelines is to reduce crime through incapacitation, the commission attempted to evaluate whether they were accurately predicting future criminal behavior. In a 2004 report, the commission found that the guidelines system of criminal history scores was positively correlated with recidivism rates. As offender criminal history scores increased, so did recidivism rates. Only 13.6 percent of the offenders with the lowest scores (Criminal History Category [CHC] I) recidivated in the first two years, compared with 55.2 percent of those with the highest scores (CHC VI). The Sentencing Commission concluded that the guidelines were accurately predicting future criminal behavior.14 The problem with the Sentencing Commission study is that its prediction system relies on broad categories, and like all such systems it is generally correct a lot of the time: people with longer criminal histories are more likely to commit more crime in the future than people with less serious criminal histories. But it does not move beyond that to a more precise prediction of the behavior of individual offenders that is more accurate and as a consequence more effective in reducing crime. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 92 CHAPTER 4 In the end, the evidence clearly indicates that the prediction problem is a recurring issue in criminal justice. We will encounter it again in Chapter 7 with regard to bail setting and incarceration and in Chapter 11 with respect to probation and parole decision making. The Rand Selective Incapacitation Study Another exercise in prediction was conducted by the Rand Corporation in its report Selective Incapacitation.15 The Rand Inmate Survey (RIS) involved selfreport interviews in California, Texas, and Michigan in which prison inmates were asked how many crimes they had committed between arrests. Although far from perfect, this self-report method yields a reasonably good estimate of the undetected crime committed by these offenders. Then, the Rand researchers correlated the self-reported criminal activity with the social histories of the 2,190 inmates. They identified thirteen characteristics that were correlated with high rates of criminal activity. With one notable exception, (which we will discuss), extralegal factors such as race, ethnicity, or gender were not used. An offender’s race is not a legally appropriate factor, for example. Rand then used these data to develop a seven-point prediction scale (Table 4.3). Offenders with four or more points were then predicted to be high-rate offenders; those with two to three points were predicted to be medium rate, and those with only one or no points were low-rate offenders. In the next stage, Rand retrospectively correlated the prediction scores with inmates’ actual reported criminal activity. The results appear in Table 4.4. The prediction device was correct only 51 percent of the time. This represents the combination (reading diagonally from top left to bottom right) of the predicted low-risk offenders who proved to be low risks (14 percent), the predicted medium risks who proved to be medium risks (22 percent), and the predicted high risks who actually proved to be high risks (15 percent). A 51 percent accuracy rate is not good. You could do as well flipping a coin, and dispense with all the elaborate statistical analysis. T A B L E 4.3 Seven-point scale of factors affecting prediction of offense rates 1. Prior conviction for the instant offense type 2. Incarcerated more than 50 percent of preceding two years 3. Conviction before age sixteen 4. Served time in a state juvenile facility 5. Drug use in preceding two years 6. Drug use as a juvenile 7. Employed less than 50 percent of the preceding two years SOURCE: Peter W. Greenwood, Selective Incapacitation (Santa Monica, CA: Rand, 1982), p. 50. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 93 THE PREDICTION PROBLEM T A B L E 4.4 Predicted versus self-reported offense ratio for robbery and burglary Self-reported offense rates (%) Score on prediction scale Low Medium High Total Low (0–1) 14 10 3 27 Medium (2–3) 12 22 10 44 High (4–7) 4 10 15 29 30 42 28 100 Total SOURCE: Peter W. Greenwood, Selective Incapacitation (Santa Monica, CA: Rand, 1982). p. 59. At the same time, the prediction device was grossly wrong in 7 percent of the cases: the 4 percent who were predicted to be high risks but who turned out to be low risks (false-positives) and the 3 percent who were predicted to be low risks but proved to be high risks (false-negatives). The prediction device was moderately wrong in the remaining 42 percent of the cases. In the end, then, the Rand attempt to develop a scientific prediction method failed to develop a system that was better than existing practices. Several years later, Rand researchers made another attempt at predicting career criminals. They used two samples. One group included 2,700 men who had been committed to the CYA as juveniles between 1966 and 1971. The Illustration by Frank Irwin, © Wadsworth, Cengage Learning. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 94 CHAPTER 4 second group included 200 RIS inmates who had been incarcerated for either burglary or robbery and had been released at least two years before the new study. Rand used its original seven-point prediction scale for the RIS group and a modified five-point scale for the CYA group.16 The results of this study are expressed in the subtitle of the Rand report: Why the High-Rate Offenders Are Hard to Predict. The authors concluded that “high rate offenders cannot be accurately identified, either prospectively or retrospectively, on the basis of their arrest rates alone,” [emphasis added]17 and they conceded that the previous Rand conclusions about the ability to identify high-rate offenders and reduce crime by selectively incapacitating them were “overly optimistic.”18 We agree with the Rand’s conclusion. Although they limited their conclusions to using “arrest rates alone,” we feel that the evidence we have reviewed here supports skepticism about predictive tools that use a broader range of factors. This is not to say that all risk assessments are worthless. Clearly some offenders, say at the point of sentencing, are far more likely to become repeat offenders than others, based on their prior record alone. And some prisoners are more likely to recidivate than others, based on their prior criminal records and their conduct while in prison. But as we mentioned at the beginning of this chapter and in Chapter 1, the purpose of this book is to find policies that will make marginal but meaningful improvements over what we are currently doing. Based on the evidence, we offer the following proposition: 5 PROPOSITION It is not possible to precisely predict future criminal behavior in a way that will significantly reduce crime. HOW MUCH CRIME DO THEY COMMIT? A critically important problem in translating career criminal research into crime policy involves estimating how many crimes the average high-rate offender commits. The estimate has important practical ramifications. How many crimes will we prevent if we lock up an armed robber for five years? How much safer will we be compared with the robber’s completing a three-year sentence? Criminologists have devoted considerable energy to developing estimates of the annual offending rate for career criminals. The RIS attempted to estimate annual offending rates through interviews with inmates in three states. It was one of the most influential studies, and its findings have been widely used. The self-report method was a major advance because official records (for example, arrest reports) do not provide a complete picture of a criminal’s criminal behavior. Many crimes are not reported, and obviously, most crimes do not result in an arrest. The RIS estimated high rates of criminal activity, but with some important variations. California robbers averaged 53 robberies per year, compared with Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE PREDICTION PROBLEM 95 77 for Michigan robbers but only 9 a year for those in Texas. The RIS also found that criminals did not specialize in one type of crime. California robbers also averaged 90 burglaries, 163 thefts or frauds, and 646 drug offenses each year. Texas robbers, meanwhile, averaged 24 burglaries and 98 thefts each year.19 The variations in annual offending rates among the three states are striking. Why were the rates so much higher for Michigan and California compared with Texas? The best explanation is that Texas judges sent more robbers to prison, regardless of their actual criminal histories. As a result, the Texas sample included a higher proportion of low-rate offenders than the Michigan and California samples did, thereby dragging down the group’s average. California judges were being more selective, incarcerating only the worst robbers, with the result that the inmates in that state had much higher annual crime rates. The difference in the annual offending rates may seem like a minor technical point, but it has tremendous practical consequences. We need a precise estimate of the annual offending rate to calculate the amount of crime reduction we will get. The annual offending rate is expressed as lambda. If the lambda is large, then we can expect a substantial reduction in crime for every career criminal who is imprisoned or rehabilitated. But if the lambda is low (that is, if the average career criminal commits relatively few crimes each year), then the payoff will be much lower. Estimates of lambda by respected scholars vary enormously. Alfred Blumstein and Jacqueline Cohen estimated that adult arrestees committed an annual average of 3.4 robberies and 5.7 burglaries in Washington and 4.7 robberies and 5.3 burglaries in Detroit. The National Youth Survey estimated that active offenders committed an average of 8.4 robberies and 7.1 burglaries per year.20 At the other end of the scale, Edwin W. Zedlewski, in Making Confinement Decisions, used an estimate of 187 felonies per year.21 The practical implications of these different estimates are obvious. If we accept Zedlewski’s figure, we could expect a great reduction in crime. But if we accept Blumstein and Cohen’s figure, we will get a much smaller payoff for locking up each offender. When we discuss incapacitation as sentencing policy in Chapter 7, we will take a critical look at Zedlewski’s use of his 187 figure. A major part of the problem here is the concept of average offending rates. The RIS data clearly indicate that there is no such thing as an “average” career criminal. The median annual robbery rate for the RIS inmates was five per year. The top 10 percent, however, averaged eighty-seven robberies per year. It is important to remember that the RIS inmates were a pretty select group: They got caught and were sent to prison because judges regarded them as dangerous offenders. The top 10 percent of the RIS sample, then, were the worst of the worst. From a practical standpoint, to get some real payoff in terms of crime reduction, it is necessary to identify this small group from among all the other “serious” offenders. Say, for example, that you wanted to send most robbers (five robberies per year) to five-year prison terms and give the really high-rate robbers (eighty-seven robberies per year) fifteen years. You would have to make precise predictions. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 96 CHAPTER 4 We will examine this subject again in Chapter 7 when we discuss incapacitation as a crime control strategy. It is worth pointing out, however, that despite all the initial excitement about the possibilities of applying career criminal research through selective incapacitation, we have in practice abandoned that goal and adopted a policy of gross incapacitation. The prison population has soared because we are locking up lots of people without making fine distinctions. CONCLUSION The prediction problem is an excellent example of the difficulties of translating research into policy. Wolfgang’s original finding about the fact that a small group of offenders is responsible for a huge percentage of all crime was an important and exciting event. But because of the prediction problem, policy makers have been unable to develop meaningful policies based on it. Research on the prediction problem indicates that it is difficult, if not impossible, to precisely identify in advance the small group of high-rate offenders. This difficulty is compounded by the fact that estimates differ on how much crime these high-rate offenders actually do. If the averages are in fact low, we will not get that much payoff in terms of crime reduction. The problems we have identified here have a direct impact on many of the crime control policies we will examine in the chapters ahead. As we mentioned previously, the administration of justice consists of a series of discretionary decision points. Many of those decisions involve predictions about who is and who is not dangerous. NOTES 1 Pew Center on the States, Risk/Needs Assessment 101: Science Reveals New Tools to Manage Offenders (Washington, DC: Pew Center on the States, September 2011). 2 Addressing unconscious bias in policing is the mission of the Fair and Impartial Policing project directed by Professor Lorie Fridell of the University of South Florida. The website explains provides links to the scientific research on unconscious bias: www.fairandimpartialpolicing.com. 3 Pew Center on the States, Risk/Needs Assessment 101. 4 Marvin Wolfgang, Robert M. Figlio, and Thorsten Sellin, Delinquency in a Birth Cohort (Chicago: University of Chicago Press, 1972). 5 Lawrence W. Sherman and Barry Glick, The Quality of Police Arrest Statistics (Washington, DC: The Police Foundation, 1984). 6 Paul E. Tracy, Marvin E. Wolfgang, and Robert M. Figlio, Delinquency in Two Birth Cohorts (Chicago: University of Chicago Press, 1985). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. THE PREDICTION PROBLEM 97 7 Lyle W. Shannon, Judith L. McKim, James P. Curry, and Lawrence J. Haffner, Criminal Career Continuity Its Social Context (New York: Human Sciences Press, 1988). 8 The findings of all the longitudinal studies are reviewed in David P. Farrington, Lloyd E. Ohlin, and James Q. Wilson, Understanding and Controlling “Crime”: Toward a New Research Strategy (New York: Springer, 1986), see especially pp. 50–52. 9 Alfred Blumstein, Jacqueline Cohen, Jeffrey Roth, and Christy A. Visher, eds., Criminal Careers and “Career Criminals” (Washington, DC: National Academy Press, 1986). 10 Samuel Walker, Popular Justice A History of American Criminal Justice, 2nd ed. (New York: Oxford University Press, 1998). 11 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964). 12 Ernest A. Wenk, James O. Robison, and Gerald W. Smith, “Can Violence Be Predicted?” Crime and Delinquency 18 (October 1972): 339–402. 13 Texas Defender Service, Deadly Speculation Misleading Texas Capital Juries with False Predictions of Future Dangerousness (Austin: Texas Defender Service, 2004). Available on the Texas Defender Service website. 14 U.S. Sentencing Commission, Measuring Recidivism The Criminal History Computation of the Federal Sentencing Guidelines (Washington, DC: Author, 2004). 15 Peter W. Greenwood and Allan Abrahamse, Selective Incapacitation (Santa Monica, CA: Rand, 1982). 16 Peter W. Greenwood and Susan Turner, Selective Incapacitation “Revisited”: Why the High-Rate Offenders Are Hard to Predict (Santa Monica, CA: Rand, 1987). 17 Ibid., p. x. 18 Ibid., p. 49. 19 The data are in Greenwood and Abrahamse, Selective Incapacitation. The original report is Joan Petersilia, Peter W. Greenwood, and Marvin Lavin, Criminal Careers of Habitual Felons (Santa Monica, CA: Rand, 1977). 20 Alfred Blumstein and Jacqueline Cohen, “Estimating Individual Crime Rates from Arrest Records,” Journal of Criminal Law and Criminology 70 (1979): 561–585. Blumstein et al., Criminal Careers and “Career Criminals” 21 Edwin W. Zedlewski, Making Confinement Decisions (Washington, DC: Government Printing Office, 1987). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PART II “Get Tough”: The Conservative Attack on Crime C onservatives argue that we can reduce serious crime if we just “get tough” with criminals. Their crime control agenda, which has not changed in forty years, includes the following items. First, we can reduce crime if we would just unleash the cops and give them more power and resources. We will look at several strategies for unleashing the cops in Chapter 5. Second, we can deter crime through swifter, more certain, and more severe punishments. We will take a close look at the theory of deterrence and some deterrence-oriented programs in Chapter 6. Third, we should lock up more criminals and send them to prison for longer prison terms. This represents a strategy of incapacitation. We will look at several incapacitation programs in Chapter 7. Fourth, conservatives believe that too many criminals “get off” through loopholes in the criminal justice system. We will examine four proposals designed to close loopholes in Chapter 8. Conservatives and some policy analysts believe that the recent reduction in crime is a result of these policies. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 5 Unleash the Cops! Illustration by Frank Irwin, © Wadsworth, Cengage Learning. T he police are the front line of the criminal justice system. They are the most visible part of the criminal justice system, and arrests are the entry point for criminal cases. The public is highly conscious of the police, partly because of the visible presence of patrol officers throughout our communities and also because they are staple items in televisions shows and the movies. For all these reasons, people have high expectations of the police in terms of public safety, expecting the police to prevent crime. The police, meanwhile, have always encouraged these expectations, publicizing their frontline role with respect to crime. 100 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 101 The traditional conservative belief has long been that we can reduce crime if we just “unleash” the cops. Give them more officers and expand their powers of searches and interrogations they argue, and the police will reduce crime. Many Americans agree; when asked about the best way to reduce crime, one-third consistently say they want more police.1 As we shall see in this chapter, however, policing is complex. Commonsense assumptions about reducing crime by putting more cops on the street do not work out in practice. In this chapter, we will explain why that is so. We will also examine other common proposals regarding the police and crime: hiring more detectives and eliminating restrictions on police powers of search and seizure and interrogations. But if criminological research has demolished many longstanding assumptions about the police and crime, it has also provided the basis for important innovations in policing that hold considerable promise for effective crime reduction. Although traditional thinking about increasing police effectiveness almost always boiled down to “more” (more patrol, etc.), the innovations we will examine come down to the word smarter: using of the best research, focusing on particular crimes, places, and suspects, and so on. MORE COPS ON THE STREET Robert Peel invented modern policing in 1829, and his assumptions and strategies still guide police operations today. His basic idea was simple. It made more sense to prevent crime than to respond after it had occurred, and the way to prevent crime was through a continuous police presence throughout the community. Potential offenders would see police officers, calculate the risk of committing a crime, and conclude that the risk of arrest outweighed the potential gains of crime. Peel’s ideas live on today. Routine police patrol is still the basic police strategy for fighting crime.2 Police patrol is designed to deter crime. But does it? More to the point, does more patrol deter crime more effectively than current levels of patrol? Or are there particular strategies for how patrol officers are deployed that are more effective than others? Some Basics about Police Patrol and Crime We need to begin by reviewing some basic points about police patrol and crime. The standard measure of the level of police protection is the policepopulation ratio: the number of sworn officers per 1,000 people. Nationally, there were 2.2 sworn officers per 1,000 people in the United States in 2011. In the largest cities (250,000 or more people), however, the figure is 2.7 per 1,000, compared with only 1.8 in medium-sized cities (100,000 to 249,000 population). There are some significant regional variations, however. Big cities in the northeast have 4.1 officers per 1,000 compared with only 1.9 in the west.3 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CHAPTER T A B L E 5.1 5 Deployment of patrol officers in two hypothetical cities Population Sworn officers Percentage of officers assigned to patrol Officers assigned to patrol Percentage of patrol officers assigned to 4 p.m.–12 a.m. shift Patrol officers, 4 p.m.–12 a.m. shift One-officer patrols City X City Y 500,000 500,000 900 600 50 70 450 420 33 50 148 210 20 190 Two-officer patrols 64 10 Total patrols, 4 p.m.–12 a.m. 84 200 © Cengage Learning 102 In practice, the police-population ratio is meaningless as a measure of police effectiveness. It only tells us how many police officers are on the payroll, and nothing about how those officers are used. If a department puts a low percentage of its officers on the street, or if it uses inefficient two-officer patrols, it will not have as much police strength as departments with more efficient personnel practices. Table 5.1 illustrates the point by comparing two hypothetical police departments, one that is efficiently operated and one that is not. Both are in cities with populations of 500,000. One has 900 sworn officers, the other 600. The department with 900 officers, however, assigns a lower percentage to patrol. Many officers are probably assigned to desk jobs. The department also does not assign its patrol officers according to a rational workload formula, leaving the busy evening shift understaffed. Finally, it employs two-officer patrol units, which are much less efficient than one-officer units. The net result is that the city with the higher police-population ratio actually has fewer patrol units on the street during the high-crime evening shift. The citizens are paying more for police protection but getting less. Simply adding more officers to a poorly managed department, in short, will be largely wasted. Even more important than the number of officers on patrol is the question of what officers actually do while on patrol. If officers engage in little active police work—not initiating contacts with citizens or intensively patrolling highcrime areas, for example—the public gets little in the way of actual crime fighting. In short, simply adding more cops to a department where the officers don’t do much active policing is another waste. Are there lower crime rates in cities with more cops? In the most systematic review of the evidence, Eck and Maguire reviewed twenty-seven studies of the relationship between the number of police officers and the crime rate. They found mixed results. Only 20 percent of the studies found that more police was correlated with lower crime rates, whereas 30 percent found just the reverse: more police was correlated with more crime. (Keep in mind, the findings involved correlations and not causations.) By the standards of evidence-based crime policy, this is not persuasive evidence that increasing the number of police reduces crime.4 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 103 THE DETERRENT EFFECT OF PATROL: LESSONS OF THE KANSAS CITY EXPERIMENT For nearly 150 years, Robert Peel’s idea that a visible police presence deters crime was accepted on faith, without any scientific evidence to support it. The Kansas City Preventive Patrol Experiment (1972–1973), arguably the most important research projects in police history, finally tested the deterrent effect of policing.5 Virtually all of the important innovations in policing over the past forty years derive, directly or indirectly, from the Kansas City Patrol Experiment. The Kansas City experiment sought to test whether varying the level of police patrol had any impact on crime. It divided the South Patrol District into three groups. Proactive beats received two or three times the normal level of patrol. Reactive beats received no routine patrol. Police cars entered those areas only in response to a citizen’s call for service; officers handled the call and then left the beat area. Control beats kept the normal level of patrol. A victimization survey (which was still a new research tool at that time), allowed the researchers to examine the effect of different levels of patrol on criminal activity, citizen perceptions of the level of police protection and fear of crime, and any changes in citizen behavior that might affect criminal activity. It is possible, for example, that people who notice the absence of the police would take more protective measures (not going out at night or going out alone). By reducing people’s risk of victimization, such actions would probably lower the crime rate, but it would be the result of fewer police on patrol rather than more. The experiment ran for an entire year, and the findings were explosive, generating national news stories. The experiment found that the level of patrol had no effect on either crime or citizen perceptions of police protection or fear of crime. Crime did not increase in the reactive beats where there was less patrol and did not fall in the proactive beats where there was more patrol. Moreover, people did not seem to notice the differences in the level of patrol. Fear of crime did not go up in the reactive beats and did not go down in the proactive beats. It is important to emphasize that the experiment did not prove that patrol has no effect on crime. At no time were there beats with no police presence whatsoever. Patrol cars entered reactive beats to handle 911 calls, and officers in other units (for example, juvenile, criminal investigation) entered those beat to handle their own assignments. Law-abiding citizens and potential criminals alike saw marked police cars in the reactive beats and legitimately regarded them as part of the “normal” police presence. The Kansas City findings were partly confirmed by the subsequent Newark (New Jersey) Foot Patrol Experiment (1978–1979), which found that different levels of foot patrol had no effect on the crime rate. Interestingly, however, it also found that additional foot patrol officers reduced citizen fear of crime and improved attitudes toward the police department. This finding proved to be one of the keys to the development of community policing and problemoriented policing, by suggesting that there are things the police can do to reduce fear of crime.6 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 104 CHAPTER 5 Understanding Police Patrol and Deterrence Why did more patrol officers not reduce crime in either Kansas City or Newark? Part of the answer lies in the theory of deterrence, which assumes that visible police patrol communicates a threat of arrest and causes people to choose not to commit crime. In the real world of policing, however, the theory does not work. The Kansas City experiment illuminated what has been called residual deterrence. Assuming there is any deterrent effect of police patrol, it will be there if people believe the police are around, even if in fact they are not. Think about how we live our daily lives. When we see a patrol car we assume they are in all beats all through the community, even though they actually may not be everywhere at all times. We don’t really know how many patrol cars are patrolling our neighborhood at any given moment; what matters is that we believe they are. As a practical matter, moreover, we pass through several police beats as we go about our lives: from home to job, school, the store, a bar, and so on. When we see a patrol car in one beat, that impression stays with us as we move through other beats. If we see a police car on Tuesday, the perception carries over to Wednesday and beyond. The residual deterrent effect stays with us.7 One lesson of the Kansas City experiment is that a little police patrol goes a long way, thanks to residual deterrence. Another practical factor that affects the potential deterrent effect of police patrol is the fact that patrol is spread thin in every police department. A patrol car actually passes each point in its assigned beat rarely in any day, and may not pass some sites for weeks or months. Doubling the number of patrol cars (that is, increasing the “dosage” in the experiment) does not represent a difference that people are likely to perceive. It is sort of like taking four aspirins instead of two for a serious health problem. Another problem with deterrence theory is that offenders do not perceive police patrol as a meaningful threat. They simply don’t think that they will be caught. One study estimated that drug dealers who average 1,000 transactions a year face an imprisonment risk of 1 in 4,500 per transaction. (1,000 a year is three a day, so the risk is far lower form small-time drug dealers).8 The national clearance rate for Index Crimes has always been about 20 percent. The FBI clearance rate data, moreover, are based on reported crimes. When we factor in unreported crimes, the actual clearance rates are much lower. Teenagers and many criminals, moreover, have a sense of invincibility. Much crime is impulsive, with offenders not rationally calculating. Experienced criminals, on the other hand, are fatalistic and assume that sooner or later they will be caught. The Rand Inmate Survey, for example, found that most prison inmates thought there was a good chance they would be arrested, convicted, or even injured as a result of doing crime. Nonetheless, almost all had committed repeat offenses. Clearly, the fear of adverse consequences did not deter them.9 Finally, many crimes are inherently not suppressible by patrol. The majority of murders and assaults, and about half of all rapes, occur between people who know each other. Because they usually occur indoors and in the heat of passion, the level of police patrol out on the street has no effect on them. Robbery, burglary, and auto theft, on the other hand, occur outside, and are at least theoretically suppressible through patrol. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 105 In short, the evidence from the Kansas City and Newark experiments persuasively indicate that simply adding more patrol officers does not increase the deterrent effect of patrol. This leads us to the following proposition: 6 PROPOSITION Simply putting more cops on the street will not reduce crime. THE ALL-SEEING EYE: CCTV In one of the most sensational crime cases in recent years, the two perpetrators of the terrorist bombing at the 2013 Boston Marathon were quickly identified, tracked down, and arrested (one was killed in the process). They were identified by surveillance camera images from the marathon finish line. The incident gave a powerful boost to the idea that surveillance video cameras in public places can effectively control crime. Does the evidence support this view? Do they help to reduce routine felonies? Or was the Boston terrorism episode just a classic “celebrated case” that is not relevant to day-to-day crime? Police patrol, we have just argued, is actually spread thinly around the community. Technology, however, has created the possibility of continuous surveillance in the form of closed circuit television cameras (CCTV). Many people are excited about this development, believing that knowledge about the cameras will deter crime more effectively than traditional police patrol and that the video recordings will help identify offenders and lead to more arrests. Let’s look at the evidence. CCTVs have been widely used in particular locations: banks, conveniences store, apartment buildings entrances, warehouses, and so on. In some cases they do provide useful images of robbers that are helpful in making an arrest. The question is whether they are effective out in public places. CCTVs are used far more extensively in England than the United States. Between 1998 and 2001 alone, the British government spent the equivalent of US 250 million on CCTVs. In the United States, New York City has developed an extensive CCTV network. The New York Civil Liberties Union, concerned about privacy issues, estimated that the number of cameras in the Greenwich Village/ SOHO area increased from 142 in 1998 to 2,227 in 2005. This is a huge number of cameras for such a relatively small part of the city.10 A 2008 California survey found that eighteen cities in the state had “significant” CCTV systems, including Los Angeles, Sacramento, and Fresno.11 The effectiveness of CCTVs has been evaluated by some of the world’s top criminologists, and the evidence is mixed. Welsh and Farrington reviewed fortyfour studies of the impact of CCTVs on violent and property crimes. CCTVs were deployed in different ways in these studies in four types of settings: city center areas, public housing buildings, public transportation centers, and car parking locations. Overall, CCTVs had a “modest but significant desirable effect Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 106 CHAPTER 5 on crime,” but they were most effective with regard to surveillance of parked cars. Ten of twenty-two evaluations of CCTVs in city centers reported positive results, five had “undesirable” effects, one had mixed results, and six had no measurable effects. The evaluations found some overall reduction in property crime, but no reduction in violent crimes. Another five evaluations involved automobile parking areas, and all included additional changes in the target sites such as improved lighting. Four of those five evaluations reported reductions in crime, and one reported an increase in crime.12 One significant limitation of CCTVs is that they are deployed in public areas and have no impact on crimes that occur in private spaces. (As we mentioned previously, this is also true of police patrol.) This is particularly true of many murders, which occur between people who know each other, and domestic violence assaults and murders, and a certain number of aggravated assaults between acquaintances who are not in an intimate relationship. In the end, CCTVs appear to be most effective in reducing property crime in parking areas, particularly when coupled with other improvements such as better lighting. This makes sense. Parking areas are fixed locations (much like convenience stores) that are likely targets. There is mixed evidence regarding crime in general public areas, and no evidence of a positive impact on violent crime. This too makes sense. Assaults and robberies on the street do not occur at fixed locations, but are randomly distributed throughout neighborhoods without any consistent pattern. Considering the enormous cost of deploying CCTVs in every neighborhood, the evidence raises questions about the cost effectiveness of CCTVs as a crime-fighting strategy for the community as a whole. POLICE “CRACKDOWNS” ON CRIME A traditional alternative to routine patrol involves police crackdowns, which are brief intensive enforcement efforts. The following section examines how enforcement efforts have evolved dramatically in recent decades from oldfashioned “crackdowns” to more sophisticated, data-driven efforts such as problem-oriented policing, “hot spots” policing, and focused deterrence. These new efforts build on the best research in criminology and represent what is often called “smart policing.” Let’s begin by looking at old-fashioned crackdowns to see why they were not effective. Crackdowns Police crackdowns are a classic example of the get-tough approach to crimefighting. A crackdown is defined as a short burst of intensive law enforcement, involving many arrests, directed toward a particular area or problem such as drugs or gangs.13 One well-known antidrug crackdown was Operation Pressure Point (OPP) in New York City. In the early 1980s, OPP targeted an open-air drug market on the city’s Lower East Side that had been described as a “drug Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 107 buyer’s paradise.” An additional 240 officers flooded the area, dispersing crowds, stopping and questioning suspected drug buyers and sellers, writing traffic tickets, and making a high volume of arrests (more than 2,000 in the first month alone). The police also ended its Desk Appearance Ticket (DAT) policy, which allowed persons charged with misdemeanors to be released immediately, and the U.S. attorney’s office agreed to process many of the drug arrests in federal court, where the defendants would face harsher sentences.14 There are a many questions about the process and impact of OPP. First, the evaluation did not control for the possible displacement of drug trafficking into other neighborhoods. (One of the great advances in police research was the recognition and measurement of both the possible displacement of crime or possible diffusion of positive effects of a crime fighting program.) Drug dealers, meanwhile, adapted to the crackdown with more sophisticated techniques, such as using lookouts and “steerers” to protect dealers from the police. The cost effectiveness of the large number of arrests in terms of both police officer time and court processing time was not evaluated. Nor was there an evaluation of the outcomes of the many arrests. In one highly publicized crackdown in Los Angeles, for example, virtually all of the arrests were dismissed.15 Finally, the evaluation mentioned but did not examine the police misconduct that the program encouraged. Officers disrupted drug dealing, for example, by harassing potential buyers and scaring them off. Another problem is the replacement effect. A drug crackdown may well remove drug dealers from an area, but they may also be replaced by other individuals who see an opportunity to make money. As one police officer put it, for every person arrested “there is always a replacement.” In truth, crackdowns have typically been more publicity stunts than carefully planned efforts to reduce crime. They are really directed at the media and the general public, to create the impression that the police department is doing something about crime. In the era of evidence-based crime policy, however, doing “something” is no longer sufficient, and traditional crackdowns are definitely not smart policing. A Different Kind of Crackdown? The NYPD Stop-and-Frisk Controversy A more focused form of a crackdown is the New York City Police Department (NYPD) program of stops and frisks of people officers believe to be criminal suspects. The number of stops escalated to more than 600,000 in 2011 and was the subject of a fourteen-year controversy and several law suits challenging the legality of the practice. Stopping and questioning people has always been a basic part of police work. Traditionally stops have been referred to as “field interrogations.” The law of stops and frisks was defined by the U.S. Supreme Court in the 1968 Terry v. Ohio decision16 as a temporary detention of a person about whom the officer has reasonable suspicion that he or she is committing or may be about to Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 108 CHAPTER 5 commit a crime. A stop is not an arrest, and reasonable suspicion is a lower evidentiary standard than probable cause. The court held that a police officer can frisk the detained person, defined as a pat-down but not a full search (such as searching a person’s pockets), to determine whether the person has a weapon. The purpose of the frisk is to ensure the officer’s safety.17 Stops and frisks raise a number of important issues, including whether they are done in a constitutional manner and their impact on police-community relations and the legitimacy of the police, Our concern here is whether they effectively reduce crime. With respect to crime, stops and frisks have two potential effects. First, police officers may in fact identify criminal offenders and arrest them. Second, a policy of widespread stops and frisks may deter criminal activity, the carrying of weapons, or both, by sending a message of intense police surveillance in an area. Let’s see how it has worked in practice in New York City. In 2011 the number of people stopped by New York City police officers reached a peak of 685,725, a 600 percent increase over 97,296 in 2002. Of those people stopped, 381,704, or 57 percent, were frisked.18 New York City officials claimed that the stops and frisks were directly responsible for the great decline in crime. There is no question about the dramatic crime reduction in the city. Murders in New York City declined from 2,605 in 1990 to 952 in 2000 and 774 in 2011. Robberies fell from 112,380 in 1990 to only 28,396 in 2011. This is an extraordinary success story, and we need to consider the possible causes carefully.19 The outcomes of the stops and frisks in New York raise serious questions about their direct impact on crime. Year after year, only about 10 to 12 percent of the people stopped were either arrested or issued a summons, even though the officer in each case claimed to have reasonable suspicion that a crime had occurred or was about to occur (and had to fill out the required UF 220 report to that effect). Yet, it appears that they were wrong about 90 percent of the time. In the 381,704 frisks in 2011, meanwhile, officers seized a total of only 780 guns, for a “success” rate of 1.9 percent for all frisks and 1.1 percent for all stops. In short, the evidence does not support the idea of a direct effect (arrests, summons, guns seized) on criminals and criminal behavior.20 Other evidence questions the city’s argument that its stop-and-frisk program was responsible for the great reduction in crime. The country has a whole experienced the Great American Crime Drop beginning in the early 1990s. Although it is true that New York City enjoyed a greater reduction in crime than other cities, the decline began before the NYPD escalated its stopand-frisk program. San Diego, moreover, enjoyed a steady reduction in crime without an aggressive stop-and-frisk program. Additionally, the NYPD undertook several innovations since the mid-1990s, including “zero-tolerance” policing and COMPSTAT (see the discussion later). In this context, it is difficult if not impossible to isolate the impact of any one of these programs, including the stop-and-frisk program. Bernard Harcourt concluded that Boston, San Francisco, San Diego, Los Angeles, Houston, Dallas, and San Antonio had all experienced significant crime reductions without aggressive use of stops and frisks.21 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 109 Unfortunately, there has been relatively little research on the impact of stops and frisks on crime (several important studies of New York City were completed just as this book was going to press; see the endnote at the end of this paragraph). A study of field interrogations in San Diego in the 1970s found some reduction in suppressible crimes (burglary, petty theft, disturbances, and public disorder offenses) in areas with field interrogations compared with those with none. Field interrogations, however, did not yield more arrests.22 The one study of the New York City program found it to be extremely inefficient with regard to the number of arrests and weapons seized (the “outputs” in the study) given the number of stops and frisks (the “inputs”).23 There are no recent studies from other cities that would, for example, compare crime trends in precincts that receive intensive stops and frisks with a matched group that receive normal policing. In the era of evidence-based police policy making, an aggressive stopand-frisk policy does not pass the test. In short, there is simply no evidence to confirm or refute the NYPD’s claims that it is directly responsible for the reduction in crime. (A set of studies appeared too late to be included in this book, but they are now the best studies yet of the impact of stops and frisks on crime in New York City, and well worth looking at.)24 Finally, it is necessary to discuss stops and frisks in terms of the “social ledger” we discussed in Chapter 1. Each and every crime policy needs to be evaluated in terms of its full range on consequences. The New York City policy of aggressive stops and frisks had an extremely negative impact on its principal targets, young African American and Latino males. A Vera Institute study of young people between the ages of 18 to 25, which included in-depth interviews with a subset of subject, found that 44 percent had been stopped repeatedly by the police, and 29 percent reported that they were never informed of the reason for the stop. Seventy-one percent had been frisked at least once and 44 percent reported that they had been threatened by a police officer.25 These extremely negative impacts have major implications for crime reductions. As we will discuss in detail in Chapter 12, there is growing evidence of the importance of legitimacy in criminal justice. People who believe the police and other criminal justice agencies are legitimate are more likely to cooperate with officials, which increases the effectiveness of the system, and also to obey the law. To the extent that the New York City policy of stops and frisks undermined legitimacy it also undermined the crime control effectiveness of the police. FASTER RESPONSE TIME The belief that faster response times to reported crimes will result in more arrests and reduce the crime rate is another part of the popular folklore of policing. People expect a fast response to their 911 calls, in part because the police have advertised their policy of quick response. But does it actually reduce crime? The evidence overwhelmingly indicates that faster response times do not produce more arrests and have no effect on the crime rate. The police are actually called to few crimes in progress. Only about 30 percent of all patrol Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 110 CHAPTER 5 dispatches involve any criminal activity, and some studies put the figure as low as 17 percent. Moreover, about 75 percent of these crime-related calls involve “cold” crimes. Typically, it is a burglary that occurred many hours previously, and the offender is long gone. In these cases it makes no difference whether the police get there in three minutes or three hours.26 The remaining crime-related calls are termed involvement crimes, meaning that a confrontation exists between the victim and a suspect. They represent only 25 percent of crime-related calls, and only 7.5 percent of all patrol dispatches. Response time rarely makes a difference in these crimes, either. In many cases, the victim and offender are acquaintances, as in domestic violence incidents. The victim can identify the suspect no matter when the police arrive. Equally important, crime victims usually do not call the police immediately. Traumatized and confused, they often try to compose themselves, decide whether to even call the police, and often call a friend or family member first. This delay in calling the police renders irrelevant the police travel time in terms of catching the offender. At best, faster police response potentially makes a difference in a small number of crime calls: about 3 percent, according to a study by the Police Executive Research Forum. Commercial robberies are the best example. If someone calls the police while the crime is in progress, a quick response time might improve the chances of catching the offender at the scene. We have to emphasize might, because there has been no research indicating that the faster response time does make a difference. And in any event these kinds of crime are rare events.27 The National Academy of Sciences report concluded that improving police response time will not reduce crime.28 We agree. 7 PROPOSITION Faster response time will not produce more arrests or lower the crime rate. SMART POLICING: PROMISING FUTURES If the evidence does not support the traditional strategies of adding more police patrol or increasing response times, a number of newer strategies show some promise of effectiveness in fighting crime. Often referred to collectively as “smart policing,” they include problem-oriented policing (POP), “hot spots” policing, zero-tolerance policing (sometimes called “broken windows” policing), COMPSTAT, and focused deterrence. The Bureau of Justice Assistance has funded the Smart Policing Initiative (SPI), which is assisting more than thirty local law enforcement agencies with innovative projects.29 Several features are common to all of these strategies in varying degrees. All build on the best criminological research, involve careful planning, are datadriven, and are focused on particular crimes, places, or suspects. Many programs combine two or more of these elements.30 A POP project, for example, might be directed toward hot spots and have a focused deterrence orientation. The Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 111 pattern of creative innovation in U.S. policing that David Bayley noted twenty years ago continues, and if anything, has increased its pace.31 The major significance of the new smart policing initiatives is that they demolish the myth that the police cannot really do anything to affect the crime rate. This myth was an understandable by unfortunate consequence of the Kansas City Patrol Experiment which we discussed earlier, and which concluded that adding more patrol does not reduce crime. Yet, as we pointed out, the experiment studied only the amount of patrol and did not examine what police officers actually do. Frank Zimring argues that today’s good news is that “police and police strategy can make a difference in big city crime.” Let’s look at some the most important innovative programs.32 Problem-Oriented Policing POP, first proposed by Herman Goldstein in 1979, has become quite widespread in U.S. policing. POP holds that instead of trying to attack “crime” in a global and unfocused way, the police should identify particular problems (for example, open-air drug dealing or residential burglaries, and so on), examine the underlying causes, and develop strategies specifically designed to address them.33 POP developed the Scanning, Analysis, Response, and Assessment (SARA) model. Scanning involves surveying the community and identifying particular crime or disorder problems that need to be addressed. Analysis involves studying a particular problem and identifying the underlying factors that contribute to the problem: abandoned houses that facilitate drug dealing, for example. Response involves developing a program directed toward the problem and the underlying causal factors: developing a working partnership with property owners and city officials to either board up or demolish the abandoned homes. Assessment involves an evaluation of the effectiveness of the response. Other important elements of POP include developing partnerships with both private resources and public agencies, and using noncriminal justice approaches. GETTING SMART IN OAKLAND An ambitious POP program involved the Specialized Multi-Agency Response Team (SMART) program directed toward drug hot spots in Oakland, California. The police were part of a multiagency task force (a good example of partnerships), and their role included increased enforcement activity: more patrol, field interrogations, arrests, and so on. SMART also mobilized officials from the housing, fire, and public works departments to enforce local building codes and clean up the physical appearance of the neighborhoods (an example of noncriminal justice approaches). A training program for landlords was designed to help them screen prospective tenants and evict existing tenants for rules violations. The evaluation of SMART found that it reduced the level of drug activity in the target areas and did not displace crime to nearby areas. Additionally, it had a “diffusion” effect of improving the quality of life in areas surrounding the target beats.34 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 112 CHAPTER 5 HOT SPOTS IN LOWELL AND JERSEY CITY Hot spots policing is a strategy that developed out of Lawrence W. Sherman’s path-breaking 1989 analysis of 911 calls in Minneapolis, which found the then-astonishing fact that 5 percent of the addresses in the city accounted for 64 percent of all 911 calls. A few places, which he labeled hot spots, consumed a disproportionate amount of police time and effort.35 Similar patterns are believed to be common in all urban areas. Hot spots policing is based on the assumption that if the police direct focused, intensive efforts at the areas with high concentrations of crime and calls for service they can reduce crime and disorder. Hot spots policing contains several of the elements of smart policing; it is research-based, data-driven, and focused on particular geographic areas, and often particular crimes such as drugs. A hot spots experiment in Lowell, Massachusetts, used the SARA model to identify thirty-four separate hot spots of crime and disorder that represented only 2.7 percent of the area of the entire city, but about 30 percent of all violent crime calls to the police. The thirty-four areas were then distributed into seventeen matched pairs. Police captains were assigned responsibility for developing appropriate responses in their areas. In addition to traditional police enforcement efforts, such as increased patrol, dispersing loiterers, and public nuisance arrests, the responses also included non-law enforcement tactics such as cleaning up vacant lots and improving street lighting. Data collected for the experiment included traditional calls for service, and both photographs of the physical appearance and observations of social activities (for example, the number of people engaging in disorderly activity) in each area. The weekly average of misdemeanor arrests in the treatment areas increased about 18 percent. Calls for service regarding violent crime went down significantly (42 percent for robbery and nondomestic assault incidents), and observed social disorder was reduced in fourteen of the seventeen treatment areas. In the areas surrounding the treatment and control areas, moreover, crime increased only slightly and not to a statistically significant degree. In short, there was no displacement of crime.36 A hot spots experiment in Jersey City, New Jersey, was directed at illegal drug markets and prostitution. The antiprostitution effort on Cornelison Avenue included three elements that represented both traditional policing with innovative noncriminal justice efforts: increased enforcement in the form of arrests of prostitutes; cleaning up trouble spots by fencing off a wooded lot and closing one street to limit access for “johns” cruising for prostitutes; and finally working with community groups to help prostitutes deal with personal problems such as drugs. An evaluation found that the POP efforts not only reduced crime in the experimental areas but also in neighboring areas. In short, crime was not displaced by intensive police efforts, and the crime reduction was diffused to surrounding areas that did not receive the innovative treatment.37 The evidence from these innovative programs is promising. They indicate that smart policing can make a difference in reducing crime and disorder. The main barrier to this innovative approach to police crime fighting is implementation. There have been many community policing and POP experiments over the past thirty years.38 Unfortunately, many were poorly designed or poorly Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 113 implemented. A department did not use the SARA model, or did not use it properly; the police responses were not always appropriate for the underlying problem; or the effort was not maintained throughout the experiment. Innovative smart policing, in short, can make a difference, but it is a major challenge to design and carry out a successful program. COMPSTAT: DATA-DRIVEN POLICING The most widely publicized innovation in police crime-fighting in recent years is COMPSTAT (for COMPuterSTATistics). Within just a few years after it burst on the national scene, about one-third of all police departments claimed they had adopted it. A major reason for its rapid spread was New York City where Police Commissioner William J. Bratton aggressively publicized the adoption of COMPSTAT and a resulting decline in crime. The core element of COMPSTAT is a computerized database that provides timely data on crime and disorder, which enables the police to respond quickly to changing patterns of crime and disorder. In the best programs, the turnaround time for data is twenty-four hours or less. The data are analyzed at regular command level meetings (weekly in the Minneapolis CODEFOR program; every two weeks in Fort Worth) where commanders are held responsible for developing appropriate responses to the problems in their areas. The NYPD program received a lot of attention over the fact that commanders were grilled at the weekly COMPSTAT meetings, and then-Police Commissioner Bratton advertised them as great “theater.”39 Police departments have chosen a variety of strategies about how to use the COMPSTAT data. New York City was already doing zero-tolerance (also called “broken windows”) policing when COMPSTAT was adopted. Fort Worth used a variety of strategies, including a combination of hot spots and zero-tolerance policing: Zero Tolerance Units were assigned to each to the department’s four patrol division. In addition, neighborhood police officers, a part of an existing community policing program, focused on public nuisances and disorderly conduct (zero-tolerance, or broken-windows policing).40 There is no question that crime fell significantly in New York City during the COMPSTAT years. The number of murders fell from 2,605 in 1990, before COMPSTAT was adopted) to 774 in 2011. The robbery rate, meanwhile, fell from 624.7 per 100,000 in 1990 to 145.9 in 2011.41 The question, of course, is to what extent COMPSTAT was responsible for this result or at least some part of it. As we have already indicated, COMPSTAT in New York City coincided with other major developments, including the Great American Crime Drop; the decline in the use of the drug crack, which was responsible for many homicides;42 zero tolerance policing; and a 35 percent increase in the size of the NYPD itself (to 40,000 officers).43 Perhaps even more important, some observers argued that the NYPD had become “bureaucratically dysfunctional” by the 1980s. Former Police Commissioner Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 114 CHAPTER 5 Bratton has said that the department basically “gave up” on serious efforts to fight crime by the 1960s.44 His leadership, which included both zero-tolerance policing and COMPSTAT were major efforts to reinvigorate the department.45 The department always claimed that its aggressive stop-and-frisk program directly contributes to the continued decline in crime. Some observers have commented that any good leadership for the NYPD would have made a huge difference, and it would have been reflected in lower crime rates. As we argued previously with regard to stops and frisks, with all of these changes occurring simultaneously, how do we specify the specific contribution of any one of them? And so it would wise to be skeptical about the claims made for COMPSTAT in New York.46 An evaluation of COMPSTAT in Fort Worth, Texas, is particularly valuable because it takes us out of the special context of New York City, with all of its unique factors. Fort Worth’s application of COMPSTAT closely resembled New York. Crime strategy meetings were held every two weeks where crime data for the previous twenty-eight days were presented, and division commanders identified the major problems and their strategies for dealing with them. The department’s crime data system provided a twenty-four-hour turn around, which permitted a timely response to any changes in neighborhoods. Crime mapping technology also permitted the identification of crime hot spots. Special Zero Tolerance Units were created to address hot spots. Finally, the Neighborhood Police Officer program embraced broken windows policing directed toward minor nuisance offenses. Fort Worth did not, however, copy the “punitive” accountability tactic that New York highlighted, where commanders were grilled by higher level police officials and deliberately embarrassed if crime had not gone down in their areas.47 An evaluation of the Fort Worth experience concluded that COMPSTAT “played a significant role in reducing property crimes and total index crime rates.” It did not, however, “significantly reduce violent crime rates.”48 But even here, it is not clear what was the critical innovation. Was it COMPSTAT itself, or the innovations the department used to implement it? Disturbing questions about COMPSTAT were also raised by a study of data manipulation under COMPSTAT. Eterno and Silverman mailed questionnaires to retired commanders (captains and higher) from the NYPD. The 491 completed questionnaires were divided among officers who retired before 1995 (33.9 percent), the year COMPSTAT became operational, and those who retired after 1995 (66.1 percent). The post-1995 respondents reported “higher levels of managerial pressure” to get the crime rate down, increase arrests and summons, and reduce citizen complaints. Significantly, there was less pressure regarding integrity related to crime data. Promotions, moreover, were perceived to be more likely to be based on crime statistics. Interviews with a select group of retirees, moreover, found many who had observed unethical changes in crime reports. Commanders would make special efforts to verify the value of reported stolen property; lowering the value to make the reported offense a misdemeanor rather than a felony would have the effect of reducing the official crime rate.49 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 115 FOCUSED DETERRENCE, OR “PULLING LEVERS”: THE MOST EFFECTIVE RESPONSE? Arguably, the most important police innovation in recent years has been focused deterrence. Particularly important, it has passed the rigorous test of EvidenceBased Crime Policy. A meta-analysis of eleven focused deterrence evaluations found “strong” evidence of effectiveness.50 Operation Ceasefire: The Boston Gun Project The original program, which inspired many variations, was the Boston Gun Project in the 1990s. The project was a response to a serious upsurge in gun violence in the city in the late 1980s, particularly among young African American males. Community leaders brought together all of the relevant stakeholders to develop Operation Ceasefire, a multiphased strategy to reduce gun violence, that began in 1995. A collaborative partnership was developed among the Boston Police Department, other law enforcement agencies, state and county probation and parole agencies, other public and private social service agencies, and finally community groups. Analysis of the gun violence problem determined that much of it was associated with particular gangs, and Operation Ceasefire focused on the leaders of those gangs. This focus on a small group of individuals departed from traditional police crackdowns, which as we have already discussed were indiscriminate in whom they arrested.51 Operation Ceasefire involved intensive law enforcement by both the Boston Police Department and federal authorities, together with enforcement of the terms of probation and parole by correctional officials, focused on gang leaders. The strategy of “pulling levers” involved using all potential violations by the targeted gang leaders, from the most serious, such as gun crimes, to the least serious, such as motor vehicle law violations. The levers included arresting people with outstanding warrants, seizing the unregistered vehicles, and vigorously enforcing probation and parole conditions. Probation or parole status is a particularly useful lever because many gang members have prior convictions and are out on probation or parole. Operation Night Light involved evening visits to probationer and parolee’s residences by teams of police and correctional officers to check for possible violations such as alcohol, drugs, or weapons possession. A major part of the pulling levers strategy were “forums” with gang members, which have been called call-in or notification meetings in other cities. Gang members were brought in voluntarily, at the request of social service street workers, or compelled to attend as a condition of their probation or parole status. At the meetings they were given a strong message that if gun violence occurred, the authorities would use every possible lever against them. These face-to-face meetings gave the special focus to the idea of focused deterrence. (In Chapter 6 on deterrence, we will discuss in more detail the limitations of most deterrence-oriented programs, which are generally unfocused in terms of their intended audience.) Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 116 CHAPTER 5 Did the Boston Gun Project work? An evaluation found a 63 percent reduction in monthly youth homicides and smaller reductions in youth gun assaults and calls to the police regarding gunshots. You might properly point out that at the time, the entire country was experiencing the Great American Crime Drop, but the evaluation, found a greater reduction in crime in Boston than in other cities across the country. Cincinnati Initiative to Reduce Violence Because of its innovative approach and reported success, the Boston Gun Project became the most highly publicized police antigun violence program in the country. An important replication involved the Cincinnati Initiative to Reduce Violence (CIRV). Two factors distinguish this effort. First, aware that Boston and some other projects had faded after their initial successes, the planning included creating an organizational structure designed ensure its continuity. Second, the evaluation included both twenty-four- and forty-eight-month postintervention periods, the longest of any focused deterrence effort.52 Launched in 2007, CIRV incorporated the basic components of the Boston Gun Project. Police enforcement efforts sought to increase both the certainty and severity of the consequences of law-breaking. Twenty-eight “call-in” meetings reached 568 identified violent gang members, and another four meetings in prisons involved 168 offenders due for release. Finally, 163 home or street visits reached identified high-risk individuals in the community. As in Boston, the various meetings delivered a clear message that the police would respond to any homicide involving a violent gang member with a concerted enforcement effort (pulling levers) directed at all members of the group. In the end, 223 offenders were arrested on various charges, and another 17 were indicted on federal charges. The second component of the program involved delivering “tailored” social services to individuals who wanted to leave the life of gang violence. The third component involved efforts to change “community norms” regarding violence through community outreach programs. The results were impressive: a 41.1 percent reduction in gang memberinvolved (GMI) homicides after 42 months. Non-gang member-involved homicides, by comparison, increased 38.3 percent over the same time period. The fact that the reduction among the targeted group continued for forty-two months makes the findings especially persuasive. Interestingly, however, there was no evidence of a direct impact of the social services component of the call-in meetings on homicides or violent firearms incidents. Together with the positive evaluations of other focused deterrence programs, the success of CIRV indicates that it is the most promising police program for reducing serious crime. This leads us to the following proposition: 8 PROPOSITION Carefully planned and focused problem-oriented policing strategies can be successful in reducing crime and disorder. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 117 A Few Words of Caution about Police Innovations The various smart policing innovations are an exciting development in U.S. policing, representing significant advances over traditional policing. A few words of caution are in order, however. The first is the problem of institutionalizing these reforms in police departments. There is a long history of important police reforms related to both crime and accountability just fading away with time.53 The celebrated Boston Gun Project fell into disarray after a few years because of a variety of problems. David Kennedy, one of the key figures in the project, reported, that it suffered from changes in personnel, conflicts among key stakeholders, and other problems.54 Sustaining such a highly complex, multidimensional effort, requires continuing administrative attention, and that is true of all the recent smart policing innovations. CIRV responded to this challenge by creating at the outset an organizational structure designed to institutionalize the project and try to endure its continuity—and the results to date seem to justify the wisdom of that approach.55 Bringing about a major innovation is policing is a major challenge. The old cliché about “turning around a battleship” is often used to describe it. So, before we celebrate the successes of focused deterrence too quickly, we need to be conscious of the difficulties in implementing complex innovations and make sure that we know how to make them endure over the long haul. PREDICTIVE POLICING: SCIENCE OR JUST THE LATEST FAD? There has been considerable buzz in the police world in the last few years about something called “predictive policing.” Its advocates tout it as a great scientific leap into a future where the police, using sophisticated data analysis, will be able to predict when and where crimes will be committed, and as a result be able to prevent them. Does this idea have any merit, or is it just the latest fad? Some advocates of predictive policing argue that it is modeled after private industry, where manufacturers and retailers use sophisticated data analyses to predict the markets for their products. The development of data-driven policing in the form of COMPSTAT and early intervention systems has created new possibilities for applying these techniques to policing. But can we actually predict criminal activity so that police departments can respond proactively?56 The advocates of predictive policing cite some initial success stories. Richmond, Virginia, for example, had a problem with people celebrating New Year’s Eve by firing guns into the air. Detroit and some other cities have had the same problem. The analysis of data by the police department, it claimed, allowed it to “anticipate the time, location and nature of future incidents.” By strategically placing police officers on the basis of this data, the Richmond Police Department reduced gunfire by 47 percent and increased gun seizures by 246 percent.57 One hardly needs to be a criminologist to ask, with regard to the Richmond example, isn’t this really a matter of plain common sense? In fact, you don’t really have to do any “data analysis” to be aware of the recurring New Year’s Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 118 CHAPTER 5 Eve gunfire. Tom Casady, the respected former police chief in Lincoln, Nebraska, pointed this out, commenting that “This is pretty basic stuff, and we have been doing this for years.” No other more credible examples have been offered by the advocates of predictive policing. In the era of evidence-based policy making, predictive policing lacks even the most elementary evidence. It appears as commonsense policing wrapped in a fancy package and surrounded with the aura of “science” and data-driven policing. DRONES: THE POLICE PATROL OF THE FUTURE? “The drones are coming to a neighborhood near you,” declared a New York Times editorial on Christmas Day 2012.58 Will drones be the new form of police patrol? Will they help reduce crime? Or will they be a massive invasion of privacy, as opponents of their use in policing claim? Several points are indisputable: drones are already here; the technology of drones is advancing at warp speed; they have already been used in some law enforcement situations; and there will be increasing pressure to increase their application. They have the lure of the first patrol car in the early twentieth century: they are incredibly efficient in their ability to cover a wide range of territory at a relatively low cost (relative to a police officer in a patrol car, that is). Some additional facts are relevant here. Congress authorized the development of domestic use of drones in 2012 and the Department of Homeland Security has developed plans for “public safety” drones, with as many as 30,000 drones deployed by 2020. The Federal Aviation Agency has designated six sites to test their safety. The FBI admitted in 2013 that it had received FAA clearance to use domestic drones on at least four occasions between 2010 and 2013. In short, drones are here.59 Domestic public safety drones raise many questions. Our concern in this book is with crime reduction. Would the systematic use of drones by a local police department be an effective crime reduction strategy? Would “drone patrol” be a more effective deterrent to crime than traditional police patrol? Would the knowledge that a drone equipped with surveillance cameras (and presumably with zoom lens capability for close ups) might suddenly appear and be able to follow you deter potential robbers and burglars? Would it deter drunk driving because of its surveillance and recording capabilities? We don’t yet know. There are good reasons for skepticism about the crime reduction potential of domestic drones. It is likely that they would have little impact on interpersonal crimes of violence. As we know, these crimes typically impulsive crime that occur indoors, between people who know each other. The supposed “efficiency” of drones will be offset by their inherent inefficiencies. In fact, we have been through this before in police history. The efficiency of the patrol car in terms of geographic coverage was offset by the inefficiencies of the lost contact between the police and the public. No one really noticed until the riots of the 1960s, when many argued that the police in African American neighborhoods Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 119 appeared as “occupying armies,” as some put it, with little contact with neighborhood residents. The community policing movement, in fact, sought to overcome the loss of legitimacy of the police with strategies to establish productive working relationships with neighborhoods. It is now generally accepted that the trust and cooperation that results from closer police-citizen relationships has a direct payoff in terms of crime fighting. It has been well-established that police crime-fighting efforts depend on the cooperation of people, to report crimes and neighborhood problems, to provide information about suspects, and to serve as witnesses. Drones will produce none of that, and in that respect may undermine crime control. In the end, we don’t know whether drones are the future of police patrol. Local communities, worried about privacy issues, may forbid their police departments from using them. Or they may limit them to certain special events, such as disasters. And as we have argued, even if widely used the readily apparent efficiencies may be offset by important but less evident inefficiencies. MORE DETECTIVES AND BETTER DETECTIVE WORK Criminal investigation dominates the popular image of policing. Detectives are the major subjects of television shows and movies about the police, to a far greater degree than patrol work. Popular folklore holds that we could reduce crime if we would just improve detective work: add more detectives, improve training for detectives, and so on. Let’s look at the evidence on this subject. Myths and Realities of Detective Work Detective work is surrounded by myths perpetuated by the media and the police themselves. Movies and television cop shows portray criminal investigation in three different forms. One presents it as fast-paced, exciting, and dangerous work with shootings, car chases, and confrontations with dangerous criminals. In the classic 1950s television show Dragnet, Sgt. Joe Friday (Jack Webb) always caught the offender through patient, dogged leg work. Today, the highly popular television show CSI emphasizes the forensic aspects of detective work. From Dragnet to CSI, however, the media image of detectives is pure mythology. The reality of criminal investigation is different from the popular image. Most detective work is boring, unglamorous, and highly unproductive. Instead of kicking in doors, ducking bullets, wrestling with dangerous sociopaths, or solving scientific puzzles, detectives spend most of their time writing reports. The overall clearance rate (the percentage of crimes solved by arrest) for Part I Index crimes has always been around 20 percent; in 2011 it was 64.8 percent for homicide, 41.2 percent for rape, 28.7 percent for robbery, and only 12.7 percent for burglary and 11.9 percent for larceny.60 When the police do solve a crime, it is generally because the victim or a witness knows the offender or can provide the first police officer on the scene with a good lead about the perpetrator.61 In many acquaintance crimes (for example, Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 120 CHAPTER 5 assaults and rapes) the offender is still there when the police arrive, so that no real “detective” work is required. This explains why between 60 and 80 percent of all arrests are made by patrol officers instead of detectives.62 The importance of having a good lead at the beginning was documented more than forty years ago in a pioneering study by the President’s Crime Commission. It analyzed 1,905 cases handled by the Los Angeles Police. As Figure 5.1 indicates, the LAPD cleared 86 percent of the 349 cases in which a suspect was immediately identified by the victim or witness. But they cleared only 12 percent of the remaining 1,556 cases in which no suspect was immediately identified.63 The key to solving crimes and making arrests, in short, is information about a specific suspect. When the police begin with little or no information to work with, the chances of clearing the crime are low. In other words, the odds of solving a crime depend primarily on the characteristics of the crime rather than the number of detectives or the amount of hours they devote to a case. Increasing the number of detectives is not going to help if there is not a good lead to work with. Detectives always complain about being overworked, and it is true that they are swamped with cases. But lack of information rather than lack of time is the real problem.64 It is indeed true that detectives sometimes solve some crimes through exhaustive detective work. We hear about them because they are rare events— the celebrated cases we discussed in Chapter 2. The Rand study of criminal investigation found that the typical case gets an average of about four hours’ work, and most of that involves paperwork.65 Named suspects Unnamed suspects Uncleared Cases = 48 Rate = 14% Uncleared Cases = 1375 Rate = 88% Cleared Cases = 301 Rate = 86% Cleared Cases = 281 Rate = 12% Total cases = 1905 Total clearance rate = 25% F I G U R E 5.1 Clearance of crimes with named and unnamed suspects, Los Angeles Police Department, 1966. SOURCE: President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Science and Technology (Washington, DC: Government Printing Office, 1967), p. 8. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 121 Better training for detectives is not likely to increase the clearance rate. Even the smartest and best-trained detective is not likely to solve a “cold” crime for which there are no leads. The Rand study of criminal investigation found that the quality of training made little difference in clearance rates between departments.66 Training is not completely irrelevant, of course. An incompetent detective can easily lose a case by bungling the interrogation or mishandling the evidence. Skill does make a difference and training can improve skills. But this assumes that there is a suspect or some evidence to begin with. The Science of Crime Detection: Fingerprints and Other Popular Myths A major part of the mythology of detective work involves fingerprints and other forms of scientific crime detection. Beginning in the 1930s, the FBI elevated fingerprints to near-mythical status as a method for solving of crimes. The Bureau now has more than 200 million fingerprint cards on file, representing more than 70 million individuals. The mystique of fingerprints projected an image of the FBI as an incredibly efficient agency—efficient because it was backed by the massive weight of “science.”67 In reality, fingerprints are rarely the critical factor in solving crimes. It is extremely difficult to get usable prints from a crime scene. The New York City police obtain usable prints in only about 10 percent of all burglaries. And in only 3 percent of those cases do the prints help with the arrest. In Long Beach, California, a suspect was identified through fingerprints in only 1.5 percent of all cases.68 The TV show CSI is great entertainment, but it seriously distorts the reality of police work. Fingerprints, blood samples, and hair specimens are not what solve most crimes. Information about a suspect does. The problem with fingerprints, however, goes far deeper than the practical matters of obtaining a print and matching it to a suspect. Law professor David Harris argues that, contrary to popular belief and the arguments of the FBI and other agencies, the fingerprint identification system does not really meet the standards of science. The identification system goes by the acronym ACE-V (for analyze, compare, evaluate, verify). The examiner determines that a print has enough detail to be useful, notes the points of agreement between various prints, and then determines whether there is a “match” between the new print and a print on file. Verification involves a different examiner repeating the process. The problem, Harris points out, is that there is no official standard in the United States for the number of corresponding points between the new print and a print on file to qualify for a match. Other countries, by comparison, have a minimum number. Italy and France require sixteen matching characteristics, for example; in Brazil and Argentina the standard is thirty. In short, the critical matching phase of fingerprint identification in the United States is highly subjective. This is not science.69 Harris places fingerprints in the broader context of obtaining evidence against a suspect. He argues that polygraphs, line-ups, and in-custody interrogations Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 122 CHAPTER 5 are fraught with problems of reliability. And in fact, the Innocence Project has helped exonerate 310 wrongly convicted people since 1989 through DNA evidence. (DNA does appear to be a scientific technology that is reliable.) People were convicted, and in some cases given the death penalty, through erroneous eyewitness identifications, false confessions that were obtained through police manipulation, and other problems.70 The basic point is that we should not be mystified by the alleged “science” of fingerprints and should expect the highest standards for all forms of police evidence collection. Harris makes sixteen recommendations for needed change. The National Academy of Sciences has also called for major reforms in its 2009 report Strengthening Forensic Science in the United States.71 In the end, we have to face an unpleasant truth. Arrest is the weakest point in the criminal justice system, as we explained in Chapter 2. The other parts of the system are actually quite productive. Only about 20 percent of reported Index crimes are cleared by arrest, but about 50 percent of all arrests are prosecuted and about 90 percent of prosecuted cases result in a conviction. Unfortunately, there does not appear to be any way to increase the clearance rate significantly. The ability of the police to solve crimes is determined primarily by the nature of individual crimes, and in particular whether there is a good lead about a suspect. The evidence leads to our next proposition: 9 PROPOSITION More detectives, or other changes in detective work, will not raise clearance rates or lower the crime rate. ELIMINATE THE “TECHNICALITIES” Conservatives firmly believe that the courts have “handcuffed” the police with procedural rules that limit their power to investigate and solve crimes. According to this view, these technicalities of criminal procedure allow streetwise criminals to “beat the system” and avoid punishment. At issue are the Supreme Court decisions affirming the constitutional rights of criminal suspects and limiting police powers. The two most famous decisions, Mapp (1961) and Miranda (1966), coincided with the great increase in crime between the early 1960s and early 1970s, and many people blamed the court for that development.72 Have court decisions limiting police powers been responsible for letting criminals “go free” and as a result causing high crime rates? Let’s take a look at the evidence. Repeal the Exclusionary Rule? The Supreme Court established the exclusionary rule in the 1961 Mapp v. Ohio decision. The court held that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.”73 Prosecutors cannot use evidence obtained in violation of the Fourth Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 123 Amendment’s guarantee of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Evidence obtained illegally is “excluded,” or inadmissible in court.74 Mapp produced a storm of controversy that continues today. Critics argue that the exclusionary rule has limited the ability of the police to gather evidence necessary to convict criminals. Actually, the exclusionary rule was nothing new in 1961. The Supreme Court had applied it to federal proceedings in 1914 (Weeks v. United States) and by 1961 it was already in effect in more than half of the states, mainly through decisions by state supreme courts. Mapp simply applied the exclusionary rule to all the states through the Due Process Clause of the Fourteenth Amendment. The exclusionary rule has always evoked far more outrage than the equally famous Miranda warning. Miranda excludes confessions that have been obtained improperly. Even many law-and-order advocates concede that a coerced confession is wrong. But the Mapp exclusionary rule applies to physical evidence that speaks for itself, no matter how it was obtained. The conservative argument regarding the exclusionary rule is that many criminal cases are “lost” because of it. With the crucial evidence excluded, the defendant (always called a criminal by critics of the rule) goes free and is able to pursue his or her criminal activity. Studies of the impact of the exclusionary rule have found that it has virtually no impact on the crime-fighting capacity of the police. James J. Fyfe concluded that the impact is “minuscule” and “infinitesimal,”75 with few cases lost because of excluded evidence. When we consider the realities of police work, we can understand why the exclusionary rule has such a limited impact on police crime-fighting. As we pointed out previously, the police solve crimes when they immediately obtain a good lead about a suspect, from either the victim or a witness. Physical evidence, independent of some other kind of identification of the suspect, is rarely the primary factor in arresting and convicting an offender. True, it is often important secondary, supporting evidence, but not the primary factor. The limited impact of the exclusionary rule is mainly confined to drug possession, weapons possession, and gambling cases. It is easy to see why. The most important element of a drug possession case is whether the defendant actually had the drugs and how the police obtained the evidence. Robbery cases, on the other hand, are more likely to depend on eyewitness identification of the suspect. Physical evidence is rarely the crucial factor. Once in court, few defendants try to use the exclusionary rule, and even fewer succeed. Procedurally, the defense attorney asks the court to exclude or suppress the evidence. Judges have the discretion to grant or deny the motion. Peter F. Nardulli found that motions to suppress physical evidence were made in fewer than 5 percent of all cases and were successful in only 0.69 percent of the total. A General Accounting Office study of the federal courts found that motions to suppress evidence were filed in only 11 percent of all cases and that between 80 and 90 percent of those were denied. Finally, a study of search warrants by the National Center for State Courts showed that only 5 percent of all motions to suppress were successful.76 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 124 CHAPTER 5 Defense lawyers file motions to suppress evidence because they have a professional obligation to represent their clients’ interests. Not filing such motions might raise questions about their competence. Most of the time, however, they are just going through the motions, if you will pardon the expression. They are not the “crafty” lawyers of popular folklore. Most felony cases are handled by public defenders who are conscientious but extremely overworked. They have little time to devote to any one case, and in some jurisdictions they meet their clients only moments before entering the courtroom. Even when a motion to exclude evidence succeeds, the defendant will not necessarily go free. He or she can still be convicted on other evidence. If an appeals court overturns a conviction under the exclusionary rule, the prosecutor can refile charges on the basis of the remaining evidence. A study of search warrant cases found that twelve of the seventeen defendants (70 percent) who succeeded in having evidence suppressed were subsequently convicted on other charges.77 Judges vary greatly in their willingness to invoke the exclusionary rule. Sheldon Krantz and his colleagues found in their study of Boston that one judge granted 45.4 percent of the motions to suppress, whereas another granted only 22.2 percent. Three judges denied all motions presented to them. Motions to suppress were successful in only 2 percent of all the gambling and drug cases that Krantz and colleagues studied.78 A controversial 1982 study by the National Institute of Justice produced a much higher estimate of the rule’s impact. It claimed that in 520,993 felony arrests in California between 1976 and 1979 prosecutors rejected cases for various reasons. Illegally obtained evidence accounted for 4,130 of those rejections. The Justice Department then claimed that the 4,130 represented 4.8 percent of the 86,033 rejections.79 In a pair of stinging critiques, Thomas Y. Davies and James J. Fyfe each argued that it was more accurate to consider the 4,130 rejections as a percentage of the original 520,993 cases, which yields a rejection rate of only 0.8 percent (a figure that is close to other studies).80 In short, the exclusionary rule does not let “thousands” of dangerous criminals loose on the streets, and it has almost no effect on violent crime. True, some defendants succeed in having their cases dismissed because of the exclusionary rule. And some (perhaps even most) are factually guilty of the crimes they were charged with. But these are rare events, the classic celebrated cases we discussed in Chapter 2. In passing, we should take note of the positive aspects of the exclusionary rule. Far from impairing police work, it has helped to improve the professionalism of the police. Myron Orfield’s study of narcotics officers in Chicago found that the exclusionary rule provoked a number of significant reforms. The Chicago police and the Illinois state attorney’s office developed a closer working relationship, the state attorney scrutinized applications for warrants more closely, and the police department improved its own training and supervision of officers. The result was better police work. Interviews with Chicago narcotics detectives found that they supported the rule and were concerned that weakening it would open the door to police abuse. Officers said that the experience of having Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 125 evidence excluded in court was a valuable learning experience—the best onthe-job training they ever got.81 Many thoughtful law enforcement executives now accept and even welcome the rule. Former FBI Director William Sessions said that “protections that are afforded by the exclusionary rule are extremely important to fair play and the proper carrying out of the law enforcement responsibility.”82 Abolish the Miranda Warning The Miranda warning is the second major so-called technicality that conservatives believe handcuffs the police. The 1966 Miranda v. Arizona decision held that to ensure a suspect’s Fifth Amendment protection against self-incrimination, the police must advise a criminal suspect of certain rights: Before any questioning, the person must be warned that he or she has a right to remain silent, that any statement he or she does make may be used against him or her, and that he or she has a right to the presence of an attorney, either retained or appointed.83 Conservatives have been angry about Miranda ever since. In the original decision, Justice Byron White spoke for them in his dissenting opinion when he wrote that it “return[s] a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.” Other opponents have repeated this criticism for more than forty years.84 Almost a half century later, the Miranda warning is the most widely known and probably most misunderstood element of police procedure. Hollywood and television writers love it. The warning adds a special dramatic complication to the plot. In one movie, a narcotics detective wrestles the suspect to the ground with one arm while reading from the Miranda warning card he holds in the other hand. Get it? The police have one hand tied behind their backs. A 1991 public opinion poll on the 200th anniversary of the Bill of Rights found that although only 10 percent knew why it was originally adopted, 80 percent knew about their right to remain silent if arrested.85 A recent book observed that “School children are more likely to recognize the Miranda warnings than the Gettysburg Address.”86 Does the Miranda warning really handcuff the police? First, let’s clear up a few myths about the decision. The Miranda warning does not have to be given at the moment of arrest but only before questioning. If a suspect blurts out a confession (“Why did I do it?”), the confession is admissible. Also, a suspect can waive his or her rights by agreeing to talk and agreeing to do so without a lawyer. In fact, many suspects do waive their rights. Paul G. Cassell, a strong critic of Miranda, and Bret S. Hayman properly raise the question of how we should measure the impact (or the “cost”) of Miranda. They make a persuasive argument that we should not look at the number of convictions overturned because of a Miranda violation, but the number of confessions the police do not get. Surveying all of the studies done to date, they estimate that the rate of confessions has declined by 16 percent because of Miranda. But that is not the whole story, because some offenders are convicted even without a confession. The authors estimate that confessions are needed in Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 126 CHAPTER 5 about 24 percent of all cases. Thus, in their calculation the net effect is that Miranda results in a “loss” of convictions in 3.8 percent of all cases (16 percent of 24 percent = 3.8 percent). Despite Cassell and Hayman’s own claims, however, this is not a significant impact.87 Stephen J. Schulhofer argues that Cassell and Hayman’s analysis suffers from a number of methodological flaws. One of the more serious is their failure to take into account the fact that confession rates were dropping in the years before Miranda, for reasons unrelated to the decision. Factoring in a continuation of this trend and adding in the effect of other methodological problems, Schulhofer estimates that the loss resulting from Miranda is not 3.8 percent but less than 1 percent (0.78). “For all practical purposes,” he concludes, “Miranda’s empirically detectable net damage to law enforcement is zero.”88 The best study of Miranda in operation is Richard Leo’s “Inside the Interrogation Room,” in which he directly observed a total of 182 police interrogations in three police departments. He found that 78 of the suspects waived their Miranda rights and cooperated with the police. As a result, two-thirds (64 percent) made a full confession, a partial confession, or some incriminating statement. What tactics did the police use to get them to cooperate? In more than 80 percent of the cases, the police either confronted them with evidence of their guilt or appealed to their self-interest (for example, it will help you if you talk), or both.89 In short, the Miranda warning was no great barrier to the police obtaining confessions. In the vast majority of the cases, the police got suspects to waive their rights and confess or make an incriminating statement, and they did so through lawful means. It should be noted, however, that in 30 percent of the cases, the police lied by confronting the suspects with false information about their guilt, as in falsely telling them that their partner had confessed. This evidence supports keeping the Miranda warning. Why do so many suspects waive their rights and confess? Why do only about 20 percent of suspects take advantage of their right to remain silent? The first point is that the police do not arrest many suspects. They clear only about 29 percent of all robberies and 13 percent of all burglaries. Thus, they usually have some evidence against the few suspects they do arrest. This leaves a small group of cases in which there is reasonably good evidence. And as Leo discovered, detectives confront 85 percent of all suspects with evidence of their guilt. The suspects in these remaining cases have powerful incentives to cooperate and confess. They know that they committed the crime, and they realize that the police have some fairly good evidence against them. A lot of them feel guilty about it. Leo found that detectives appealed to suspects’ consciences in 23 percent of all cases. Some suspects who confess hope to get a better deal in a plea bargaining. The detectives in Leo’s study appealed to the suspects’ self-interest in 88 percent of the cases.90 The image of the tough, streetwise criminal who is skilled at manipulating the rules is another myth. Some suspects do invoke their Miranda rights, but the majority cooperate with the police. Felony suspects are typically young, poorly educated, and in many instances functionally illiterate. Most failed to learn how to manipulate the public school bureaucracy to their advantage, and they are not Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 127 much more successful in the criminal justice system. The typical robber or burglar is so disorganized and impulsive that he does not even plan his crimes well. The Rand Inmate Survey found that 40 percent of the juvenile robbers and 25 percent of the adults had not even intended to rob anyone when they left home. As one kid put it, “It was just a sudden thing. I didn’t really mean to do it. I didn’t plan nothing; it just happened.” Among the adult career criminals, only 40 percent bothered to visit the sites of their crimes in advance, and as few as 22 percent made an effort to check on police patrol in the area.91 In custody, young offenders may strike a tough pose, but it is usually nothing more than that—a pose, an act. A skilled professional detective can get most suspects to talk. 10 PROPOSITION The Supreme Court rulings in Mapp and Miranda are not significant barriers to effective crime control by the police. CONCLUSION The police are the front line of the criminal justice system. Patrol is the primary strategy for preventing crime, and arrest is the “gate-keeping” point for all criminal cases. Many people believe that we could reduce crime significantly if we would just unleash the cops: give them more resources and more powers. We have found that these ideas are not likely to reduce crime. The good news is that promising programs that involve carefully planned, focused, evidence-based strategies, such as hot spots and problem-oriented policing programs, have proven successful in several experiments. The significance of these programs goes far beyond policing. As we will find in the chapters ahead, similarly focused, problem-oriented programs—such as drug courts and community prosecution—have also shown promising results. These successes provide the foundation for a potentially comprehensive approach to crime and disorder. NOTES 1 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 2.28.2010. 2 On the history of the U.S. police and the influence of Robert Peel, see Samuel Walker, Popular Justice: A History of American Criminal Justice, 2nd ed. (New York: Oxford University Press, 1998). 3 Federal Bureau of Investigation, “Police Employee Data,” Crime in the United States 2011 (Washington, DC: Department of Justice 2012). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 128 CHAPTER 5 4 John Eck and Edward Maguire, “Have Changes in Policing Reduced Violent Crime? An Assessment of the Evidence,” in Alfred Blumstein and Joel Wallman, eds., The Crime Drop in America (New York: Cambridge University Press, 2000), 210–214, especially Table 7.1. 5 George L. Kelling, Tony Pate, Duane Diekman, and Charles E. Brown, The Kansas City Preventive Patrol Experiment: A Summary Report (Washington, DC: The Police Foundation, 1974). 6 The Police Foundation, The Newark Foot Patrol Experiment (Washington, DC: The Police Foundation, 1981). 7 Ibid. 8 David Boyum and Peter Reuter, An Analytic Assessment of US Drug Policy (Washington, DC: AEI Press, 2005). 9 James Q. Wilson and Alan Abrahamse, “Does Crime Pay?” Justice Quarterly 9 (September 1992): 372–373. 10 New York Civil Liberties Union, “Who’s Watching” Video Camera Surveillance in New York City and the Need for Public Oversight (New York: NYCLU, 2006). 11 Aundreia Camerono, Elke Kolodinski, Heather May, and Nicholas Williams, Measuring the Effects of Video Surveillance on Crime in Lost Angeles (Los Angeles: School of Policy, Planning, and Development, 2008). 12 Brandon C. Welsh and David P. Farrington, “Effects of Closed-Circuit Television on Crime,” Annals 587 (May 2003): 110–135. Brandon C. Welsh and David P. Farrington, Effects of Closed Circuit Television Surveillance on Crime, The Campbell Collaboration, Campbell Systematic Reviews 2008:17 (last updated December 2, 2008). 13 Lawrence W. Sherman, “Police Crackdowns,” in Michael Tonry and Norval Morris, eds., Crime and Justice: An Annual Preview of Research, vol. 12 (Chicago: University of Chicago Press, 1990), pp. 1–48. 14 Lynn Zimmer, “Proactive Policing against Street-Level Drug Trafficking,” American Journal of Police 9 (no. 1, 1990): 43–74. 15 Jerome H. Skolnick and James J. Fyfe, Above the Law: Police and the Excessive Use of Force (New York: Free Press, 1993), 206–207. 16 Terry v. Ohio, 392 U.S. 1 (1968). 17 Nancy La Vigne, Pamela Lachman, Andrea Matthews, and S. Rebecca Neusteter, eds., Key Issues in the Police Use of Pedestrian Stops and Searches: Discussion Papers from an Urban Institute Roundtable (Washington, DC: Urban Institute, 2012). 18 New York City Police Department, 2011 Reasonable Suspicion Stops: Precinct Based Comparison by Stop and Frisk Description (New York: New York City Police Department, 2012). New York Civil Liberties Union, Stop and Frisk 2011: NYCLU Briefing (New York: New York Civil Liberties Union, 2012). 19 The NYPD has historical crime data from 2000 on its website. For data from 1960 to 2011: http://disastercenter.com/crime/nycrime.htm. Accessed February 13, 2014. 20 Joseph Ferrandino, “The Efficiency of Frisks in the NYPD, 2004–2010,” Criminal Justice Review 38 (2): 149–168. 21 Jack R. Greene, “Police Field Stops: What Do We Know, and What Does It Mean?” in La Vigne, et al., eds., Key Issues in the Police Use of Pedestrian Stops and Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 129 Searches, p. 17. Bernard Harcourt, Illusion of Order: The False Promise of Broken Windows Policing (Cambridge: Harvard University Press, 2001), 90–120. John E. Boydston, San Diego Field Interrogations: Final Report (Washington, DC: The Police Foundation, 1975). Greene, “Police Field Stops: What Do We Know, and What Does it Mean?” in La Vigne, et al., eds., Key Issues in the Police Use of Pedestrian Stops and Searches, 12–23. Ferrandino, “The Efficiency of Frisks in the NYPD, 2004–2010.” Recently published studies on the crime decline in New York City are available at: www.cuny.edu/crimedecline. Accessed February 13, 2014. Jennifer Fratello, Andres F. Rengifo, and Jennifer Trone,, Coming of Age with Stop and Frisk: Experiences, Self-Perceptions, and Public Safety Implications (New York: Vera Institute of Justice, 2013). William Spelman and Dale K. Brown, Calling the Police Citizen Reporting of Serious Crime (Washington, DC: Department of Justice, 1984). Ibid. Wesley G. Skogan and Kathleen Frydl, eds., Fairness and Effectiveness in Policing: The Evidence (Washington, DC: National Academy Press, 2004), 226–227. See the Smart Policing Initiative website: http://www.smartpolicinginitiative.com/. Accessed February 13, 2014. For a broader discussion of these new elements in policing, see Samuel Walker, The New World of Police Accountability, 2nd ed. (Newbury Park: Sage, 2014). David Bayley, Police for the Future(New York: Oxford University Press, 1994), 101. Franklin E. Zimring, The City That Became Safe: New York’s Lessons for Urban Crime and its Control (New York: Oxford University Press, 2012). Herman Goldstein, Problem-Oriented Policing (New York: McGraw-Hill, 1990). Michael S. Scott, Problem-Oriented Policing: Reflections on the First Twenty Years (Washington, DC: Department of Justice, 2000). Lorraine Green, “Cleaning Up Drug Hot Spots in Oakland, California: The Displacement and Diffusion Effects,” Justice Quarterly 12 (December 1995): 737–754. Lawrence W. Sherman, Patrick R. Gartin, and Michael E. Buerger, “Hot Spots of Predatory Crime: Routine Activities and the Criminology of Place,” Criminology 27 (1989): 27–55. Anthony A. Braga and Brenda J. Bond, “Policing Crime and Disorder Hot Spots: A Randomized Control Trial,” Criminology 46:3 (2008): 576–607. David Weisburd, Laura A. Wycoff, Justin Ready, John Eck, Joshua C. Hinckle, and Frank Gajewski, “Does Crime Just Move Around the Corner? A Controlled Study of Spatial Displacement and Diffusion of Crime Control Benefits,” Criminology 44:3 (2006): 549–591. Scott, Problem-Oriented Policing Reflections on the First Twenty Years. William J. Bratton and Peter Knoblauch, Turnaround: How America’s Top Cop Reversed the Crime Epidemic (New York: Random House, 1998). Minneapolis Police Department: http://www.ci.minneapolis.mn.us/police/. Hyunseok Jang, Larry T. Hoover, and Hee-Jong Joo, “An Evaluation of Compstat’s Effect on Crime: The Fort Worth Experience,” Police Quarterly 13 (4): 387–412. Jang, Hoover, and Joo, “An Evaluation of Compstat’s Effect on Crime: The Fort Worth Experience,” Accessed February 13, 2014. See N. 39. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 130 CHAPTER 5 41 Franklin E. Zimring, The Great American Crime Decline (New York: Oxford University Press, 2007), 149–150. 42 Zimring, The Great American Crime Decline. 43 K. Jack Riley, Crack, Powder Cocaine, and Heroin Drug Purchase and Use Patterns in Six US Cities. NCJ 167265 (Washington, DC: Department of Justice, 1997); For an examination of the declining appeal of crack cocaine, see R. Terry Furst, Bruce D. Johnson, Eloise Dunlap, and Richard Curtis, “The Stigmatized Image of the ‘Crack Head’: A Sociocultural Exploration of a Barrrier to Cocaine Smoking among a Cohort of Youth in New York City,” Deviant Behavior, 20 (1999): 153–181. 44 Jang, Hoover and Joo, “An Evaluation of Compstat’s Effect on Crime,” 405. 45 George L. Kelling and Catherine M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities (New York: Martin Kessler Books, 1996). 46 The best discussion of the changes in the New York City Police Department and their impact on crime is Zimring, The City That Became Safe: New York City’s Lessons for Urban Crime and its Control. 47 Hyunseok Jang, Larry T. Hoover, and Hee-Jong Joo. “An Evaluation of Compstat’s Effect on Crime: the Fort Worth Experience,” Police Quarterly 13 (no. 4, 2010): 387–412. 48 Ibid., 405. 49 John A. Eterno and Eli B. Silverman, “The NYPD’s Compstat: Compare Statistics or Compose Statistics?,” International Journal of Police Science and Management 12 (No. 3, 2010): 426–449. 50 Anthony A. Braga and David L. Weisburd, “The Effects of Focused Deterrence Strategies on Crime: A Systematic Review and Meta-Analysis of the Empirical Evidence,” Journal of Research in Crime and Delinquency (2011): 1–36. 51 David M. Kennedy, Anthony A. Braga, and Anne M. Piehl, Reducing Gun Violence The Boston Gun Project’s Operation Ceasefire (Washington, DC: Department of Justice, 2001). NCJ 188741. 52 Robin S. Engel, Marie Skubak Tillyer, and Nicholas Corsaro, “Reducing Gang Violence Using Focused Deterrence: Evaluating the Cincinnati Initiative to Reduce Violence (CIRV),” Justice Quarterly 30 (3): 403–439. 53 Samuel Walker, “Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure,” St. Louis University Public Law Review XXXII (No. 1, 2012): 57–92. 54 David M. Kennedy, Don’t Shoot: One Man, a Street Fellowship, and the End of Violence in Inner-City America (New York: Bloomsbury, 2011). 55 Kennedy, Don’t Shoot: One Man, a Street Fellowship, and the End of Violence in InnerCity America, 147. Engel, et al., “Reducing Gang Violence Using Focused Deterrence: Evaluating the Cincinnati Initiative to Reduce Violence (CIRV).” 56 On data-driven policing, see Walker, The New World of Police Accountability. 57 Beth Pearsall, “Predictive Policing: The Future of Law Enforcement?” NIJ Journal, No. 266 (June 2010), 16–19. 58 “The Dawning of Domestic Drones,” The New York Times, December 25, 2012. 59 Peter Singer, Wired for War Military Robots and the Laws of War (New York: Penguin, 200). 60 Federal Bureau of Investigation, Crime in the United States 2011. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. UNLEASH THE COPS! 131 61 Wesley Skogan and George Antunes, “Information, Apprehension, and Deterrence: Exploring the Limits of Police Productivity,” Journal of Criminal Justice 1 (Fall 1979): 217– 241. 62 Albert J. Reiss, The Police and the Public (New Haven, CT: Yale University Press, 1971), 104. 63 President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Science and Technology (Washington, DC: Government Printing Office, 1967), 8. 64 John E. Eck, Solving Crimes: “The Investigation of Burglary and Robbery” (Washington, DC: Police Executive Research Forum, 1983). 65 Peter Greenwood, The Criminal Investigation Process (Santa Monica, CA: Rand, 1975). 66 Greenwood, Criminal Investigation Process. 67 David A. Harris, Failed Evidence: Why Law Enforcement Resists Science (New York: NYU Press, 2012). 68 Joan Petersilia, “Processing Latent Fingerprints—What Are the Payoffs?” Journal of Police Science and Administration 6 (June 1978): 157–167. 69 Harris, Failed Evidence, 24–30. 70 The Innocence Project website is www.innocenceproject.org. Accessed February 13, 2014. 71 Harris, Failed Evidence, 130–155. National Academy of Sciences, Strengthening Forensic Science in the United States (Washington, DC: National Academies Press, 2009). 72 Walker, Popular Justice A History of American Criminal Justice, 2nd ed., 180–193. 73 Mapp v. Ohio, 367 U.S. 643 (1961). 74 Ibid. 75 James J. Fyfe, “The NIJ Study of the Exclusionary Rule,” Criminal Law Bulletin 19 (May–June 1983): 253–260. 76 Peter F. Nardulli, “The Societal Costs of the Exclusionary Rule: An Empirical Assessment,” American Bar Foundation Research Journal 1983 (Summer 1983): 585– 690; Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Report #GGD-79-45 (April 19, 1979); National Center for State Courts, The Search Warrant Process (Williamsburg, VA: National Center for State Courts, 1986). 77 National Center for State Courts, Search Warrant Process. 78 Sheldon Krantz, Bernard Gilman, Charles G. Benda, Carol Rogoff Hallstrom, and Gail J. Nadworny, Police Policymaking (Lexington, MA: Lexington Books, 1979), 189–192. 79 National Institute of Justice, The Effects of the Exclusionary Rule A Study in California (Washington, DC: Government Printing Office, 1982). 80 Fyfe, “The NIJ Study of the Exclusionary Rule”; Thomas Y. Davies, “A Hard Look at What We Know (and Still Need to Learn) about the ‘Costs’ of the Exclusionary Rule: The NIJ Study and Other Studies of ‘Lost’ Arrests,” American Bar Foundation Research Journal 3 (Summer 1983): 611–690. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 132 CHAPTER 5 81 Myron W. Orfield, Jr., “The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers,” University of Chicago Law Review 54 (Summer 1987): 1016–1055. 82 Sessions quoted in New York Times, 5 November 1987. 83 Miranda v. Arizona, 384 U.S. 436 (1966). 84 An invaluable collection of articles on the subject is Richard Leo and George C. Thomas, III, eds., The Miranda Debate Law, Justice, and Policing (Boston: Northeastern University Press, 1998). 85 “Poll Finds Only 33% Can Identify Bill of Rights,” New York Times, 15 December 1991. 86 Paul G. Cassell and Bret S. Hayman, “Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda,” UCLA Law Review 43 (February 1996): 860. Paul G. Cassell, “Miranda’s Social Costs: An Empirical Reassessment,” Northwestern University Law Review 90 (Winter 1996): 387–499. 87 Leo and Thomas, eds., Miranda Debate, xv. 88 Stephen J. Schulhofer, “Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs,” in Leo and Thomas, eds., Miranda Debate, 205. 89 Richard A. Leo, “Inside the Interrogation Room,” Journal of Criminal Law and Criminology 86 (1996): 266–303. For a full discussion of interrogations and other “scientific” investigation techniques, see Richard A. Leo, Police Interrogation and American Justice (Cambridge: Harvard University Press, 2008). 90 Leo, Police Interrogation and American Justice. 91 Joan Petersilia, Peter W. Greenwood, and Martin Lavin, The Criminal Careers of Habitual Felons (Washington, DC: Government Printing Office, 1978). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 6 Deter the Criminals C ops on the streets deter crime. More cops, therefore, must deter crime more effectively. Right? Not really. The threat of long prison sentences also deters criminals. Right? Maybe, or maybe not. The threat of a prison sentence for drunk driving deters people from driving while drunk. Right? Possibly, but probably not. We have already discussed the theory of deterrence in Chapter 5 with regard to police patrol. Now let’s take a broader view of the subject. Deterrence is an article of faith among conservatives: Punishment deters crime; swifter, more certain, and more severe punishments will reduce crime more effectively than current policies. We are going to violate our own ground rules a little in this chapter and discuss some issues that fall outside our primary focus on robbery and burglary, including the death penalty and drunk driving. We do this because both cases offer important some evidence about deterrence. The issue of drunk driving, moreover, is a good example of how addressing a social problem with noncriminal justice responses can be effective. We will also take another look at the promising new evidence on focused deterrence, which we discussed in Chapter 5. This will help clarify why the focused element of these programs is more effective than traditional deterrence ones. DETERRENCE THEORY The theory of deterrence has a simple, intuitive appeal. People want to avoid unpleasant experiences, so if we make the punishment for crime more unpleasant, fewer people will commit crime. The basic theory is simple, however, applying it in practice is complicated. The underlying assumptions do not necessarily work in the real world of criminal justice.1 To get started, we need to distinguish between the general deterrent effect of the criminal law, on one hand, and the more limited deterrent intent of particular policies or programs on the other. The criminal law certainly has some general deterrent effect on our behavior, but it is only one part of a broader structure of 133 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 134 CHAPTER 6 social control. The law defines the boundaries of acceptable behavior and the consequences of breaking the law. Most of us do not commit serious crimes; we are not murderers, robbers, or burglars. This is a result of our socialization: the influence of our parents, religious upbringing, education, peer group, close friends, the positive opportunities available to us, and so on. The justice system’s threat of punishment reinforces our behavior because the criminal law expresses our values: it is wrong to kill, and wrong to take something that does not belong to us. For most of us, however, obedience to the law has become an unconscious habit. After all, how many of us ever sit around thinking about how much time in prison we might get for committing a robbery or a burglary? We don’t because we don’t even think about stealing something from our neighbors, or worse. The important point here is that the criminal law can be effective in reinforcing established behavior; it is not clear that it can be effective as the primary or the sole influence on peoples’ behavior. The crime problem is that some people are not well socialized; they lack selfcontrol, are impulsive, and are lured by the immediate gratification of the money from a robbery. The habit of obeying the law is not as deeply ingrained for them as it is with most of us. Deterrence theory enters the picture at this point as a strategy for influencing the behavior of the less-well socialized. Think back to Wolfgang’s birth cohort. We want to influence that 35 percent of the cohort that had one contact with the police. Common sense suggests that those who have one contact will be relatively easy to influence, by one means or another. Those with two to four contacts will be harder to influence, and those with five more (the so-called “career criminals”) will be hard to change, if we can change them at all. The specific goal of all crime control policies is, as we have emphasized, to improve on what we are currently doing. And so we expect that of deterrenceoriented policies. Daniel Nagin explains that the real issue of deterrence is “whether a specific policy, grafted onto the existing structure, will materially add to the preventive effect.”2 Are there policies that will reduce serious crime from its current level? Are there some policies that are more effective in that regard than others? As we will see, there is a lack of clear and convincing evidence about policies that, from a deterrence perspective, produce real, long-term reductions in crime. To understand why we should be skeptical about the added deterrent effect of any criminal justice policy, let’s examine the assumptions underlying deterrence. Assumptions Underlying Deterrence The theory of deterrence involves a number of basic assumptions. As we noted in Chapter 5, deterrence theory operates in the realm of social psychology. It assumes the existence of an information loop involving peoples’ knowledge, perception, and response to the potential punishment for a crime, and in particular a change in the level of punishment. First, potential offenders have to be aware of the threat. They have to know, for example, that a new law imposes a mandatory jail or prison term for a first-offense conviction for drunk driving or that a new law requires a mandatory ten-year prison term for a conviction of drug possession. If someone does not know about a new harsh sentencing requirement there will be no added deterrent effect. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 135 Second, potential offenders have to perceive the consequences of lawbreaking as unpleasant and something to be avoided. They have to believe that arrest, prosecution, conviction, imprisonment, and having a criminal record would be bad for them. If arrests and imprisonment are common events in some communities (which is in fact the case among low-income African American males), the stigma is far weaker, if it exists at all, than for other groups in society and the added deterrent effect is lost. Third, they have to believe there is a real risk of arrest, conviction, and punishment. If they believe that the risk of arrest and punishment is low, they will not be deterred. As Scott Decker and his colleagues point out, “Deterrence is essentially a psychological process that involves the balancing of personally held beliefs about possible punishment and anticipated gain.”3 Criminologists who believe in deterrence emphasize the need to increase the certainty and severity of punishment to drive home the message of both the risk and the unpleasantness of doing crime. This is one of the reasons why advocates of the death penalty, for example, object to the endless appeals for people on death row. Because it extends the time between the crime and the punishment, they argue, it weakens the connection between the crime and the punishment. Fourth, and perhaps most important, deterrence theory assumes that people are rational actors who weigh the relative costs and benefits of their actions and make conscious decisions about the best course. Many economists who do research on criminal justice embrace deterrence theory because it involves their favorite economic theory, rational choice, which holds that changing the costs or benefits can influence human behavior. Thus, if we raise the cost of crime by making punishment more certain or more severe, we will influence people to recalculate the new balance between possible gains versus possible pain, and as a result choose not to commit crime. As we shall see shortly, a major problem with deterrence, of course, is that some people do not act rationally. Finally, we have to consider the element of legitimacy, which has gained increased importance in criminal justice. Legitimacy holds that people are more likely to obey the law if they respect and trust the criminal justice system, particularly the police. Under the principles of procedural justice, people are more likely to believe the criminal justice system is legitimate if they feel they are treated fairly, are respected, have situations explained to them (such as, why a police officer stopped them), and have an opportunity to express their own interpretation of a situation. If as a result of bad experiences with the police and/or the courts people do not believe the criminal justice system is legitimate, they are not likely to respect any deterrent messages the law sends out. Deterrence operates in two ways, depending on the target audience. Specific deterrence is directed at the individual offender or potential offender. The threat of punishment is to encourage that person to make a rational decision to obey the law rather than break it. General deterrence is directed at the society as a whole. Punishing a few criminals is designed to communicate a message to the larger audience.4 With respect to the objectives we set out in Chapter 1 of this book, there is an important distinction between absolute and marginal deterrence. No one really believes in absolute deterrence: that a particular punishment threat will completely deter crime or a particular crime. Instead, we think in terms of marginal deterrence: Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 136 CHAPTER 6 a relative improvement over what we are currently achieving.5 As we explained in Chapter 1, we should think in terms of adding relatively small reductions in crime from different crime policies to achieve an aggregate large reduction in crime. Deterrence theory was out of favor among criminologists for decades, but then enjoyed a tremendous revival in the 1980s. The revival was not confined to criminal justice policy, and rational choice theory became a popular topic in many of the social sciences in the 1980s, particularly economics.6 It was especially influential in economic theory and many aspects of social policy. Conservative welfare reform policies, for example, rest on the assumption that traditional welfare programs provided too few incentives for finding employment. Cutting welfare benefits and putting a cap on the number of years of eligibility, conservatives argue, encourages people to find employment and get off welfare.7 Rational choice theory continues to be a vigorous part of criminological theory today (although it does have its critics).8 Daniel Nagin in 2007 argued for “Moving Choice to Center Stage in Criminological Research and Theory.”9 As we explained in Chapter 1, people are not always consistent in their attitude toward deterrence. Although deterrence theory is generally favored by conservatives, liberals accept it on certain issues. Some liberals, for example, believe that the exclusionary rule (Mapp v. Ohio) deters illegal searches and seizures by police officers and that citizen review of complaints against the police will deter police misconduct. Conservatives, meanwhile, reject the idea that gun control laws will deter gun violence.10 FROM THEORY TO PRACTICE: DETERRENCE IN THE REAL WORD OF CRIMINAL JUSTICE There are several reasons why deterrence-oriented policies do not necessarily work in practice.11 The National Academy of Sciences established a distinguished panel to review the evidence on deterrence and the death penalty, and the panel’s 2012 report was devastating, concluding that the research evidence is inconclusive about “whether capital punishment decreases, increases, or has no effect on homicide rates.”12 It also faulted most of the research for some significant methodological failings (which we will discuss shortly). The research on the death penalty is particularly important because that issue has been the subject of the most intensive research regarding a possible deterrent effect. Additionally, the flaws that the National Academy panel found in the research are also applicable to the question of deterrence and other crimes. We will now walk through the assumptions underlying deterrence theory. Communicating the Message As we noted previously, deterrence theory requires that the target audience be aware of the punishment, or, to be more precise, the increase in the certainty or severity of the punishment or both. If the would-be robber doesn’t know about a new law with a mandatory twenty-five-year prison sentence, there is no Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 137 possibility that he will be deterred by the change. This is true even if none of the other problems with deterrence theory, which we will discuss shortly, are operative. It is reasonable to assume that most of the people actively engaged in crime have some idea of what the penalties are for armed robbery, drug dealing, illegal weapons possession, and so on. After all, if they are active criminals they undoubtedly know people who have been arrested, convicted, and sentenced to prison. In fact, it is likely that many of them have been to prison themselves. It is naïve to assume that they don’t know. Today’s active criminal, moreover, must know how harsh the “going rate” is, even if he or she is not aware of how much harsher it is than was the case thirty years ago. (See our discussion of this change in Chapter 7.) But if they do know what the punishment is, then why do they continue to commit crime? We will explore this question shortly when we discuss how active criminals make choices about their behavior. The question of communicating the message leads us to reconsider the focused deterrence programs we discussed in Chapter 5. They are especially important because they have been found to be the most promising innovation in policing. You will recall that the key component in the focused deterrence programs are the “call-in” or “notification” meetings where known active gang members or active criminals are called in and given an in-person warning that in the event of a gang-related homicide the police will use all lawful methods to arrest them, be it major or minor charges. Delivering this threat is referred to as “pulling levers” in focused deterrence programs. The pulling levers strategy was successful in the Boston Gun Project (until it ran into organizational problems, however) and the Cincinnati Initiative to Reduce Violence (CIRV) project.13 Those successes were related to two key program elements that distinguish them from traditional deterrence-oriented crime policies. First, the message was delivered in person to a selected target audience. There is no question that the audience heard the message. By contrast, it is never clear that the message of traditional deterrence-oriented programs, such a new and harsher sentencing law, really reaches the intended audience. The second key element contributing to the success of the “pulling levers” strategy is that the law enforcement agencies did in fact follow up on the threat with tough enforcement activity directed at the audience that received the message. The evaluation of the CIRV program cited the number of targeted offenders who were subsequently arrested.14 This reinforced the message of the certainty of punishment. And it is important to point out that the arrests were sharply focused and did not involve indiscriminate “sweeps” that caught up large number of other people who were not in the target group. The successful focused deterrence programs, in short, suggest that delivering the threat to a selected audience and then following up on the threat can have a deterrent effect. This is promising news. But there is other evidence that is cause for concern. Shortly we will consider a set of programs that go by the name of “scared straight,” where the threat of unpleasant consequences of misconduct is delivered in person and which have not been found to be successful. In short, there are some unresolved questions about how to effectively deliver an inperson threat of punishment. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 138 CHAPTER 6 Understanding the “Costs” of Crime Deterrence theory further assumes that potential criminals understand the “cost” of crime and will seek to avoid it. The cost of crime involves several elements: the actual pain of arrest, prosecution, and punishment; the collateral consequences of a criminal record, including lost job opportunities, denial of eligibility for public housing, and many other collateral penalties15; and finally the social stigma of a criminal record. The costs of crime (typically defined in terms of whether there is a mandatory prison sentence and the length of the prison term) are a central element for criminologists who subscribe to deterrence theory because they assume that raising the costs will cause current or potential offenders to choose not to do crime. Deterrence theory holds that the greater the added cost, the more powerful the deterrent effect. This point illustrates why rational choice theory is so popular among economists. Their world involves calculating such effects as the more sales that will result from lowering a product’s price, or whether the increased sales will be offset by the lower sale price, and so on. The world of rational choice-oriented economists is one where human behavior can be manipulated by altering the costs; it is simply a matter of calculating the probable results of any change. Applied to criminal justice, this assumption about human behavior leads to calculations about how much crime will be reduced by imposing, for example, mandatory imprisonment for a third drunk driving offense or a mandatory ten-year prison sentence rather than a five-year term for robbery. There are a number of problems with this approach to crime policy. The National Academy of Sciences report, Deterrence and the Death Penalty, faulted the existing body of research for failing to take into account the larger “regime” of punishments for homicide, meaning all the possible outcomes and punishments.16 Assuming a potential murderer is rationally considering to kill someone, the decision is influenced by other possible punishments: life in prison, life without parole, a twenty-year prison term, and so on. The National Academy’s point is well taken, and in fact it has implications that extend far beyond the death penalty. It applies with equal force to all crimes: robbery, drunk driving, and all crimes. The “regime” of alternatives also includes more than just the alternative punishments. It includes positive alternatives as well. The person contemplating a robbery might also contemplate applying for a job he or she heard about, or exploring financial aid possibilities that would allow him or her to pursue a GED or a vocational education program. This may sound a little fanciful, but the fact is deterrence theory operates this way. Remember that deterrence theory assumes that we can influence the possibility of people committing crime by manipulating the “pain” of doing crime relative to the anticipated “gain” (e.g., the money obtained through a burglary or robbery). Some criminologists have faulted rational choice theory in criminal justice for emphasizing the “pain” side of the ledger and ignoring increasing the incentives to law-abiding behavior.17 The admittedly simplistic scenario described (robbery or GED) highlights the social justice side of crime policy that liberal Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 139 policy makers have always favored and conservatives have ignored. The mainstream of liberal thinking about crime reduction has always emphasized creating job opportunities, educational opportunities, expanded treatment programs for substance abuse, and so on. Criminologist Elliott Currie, in his address on accepting the August Vollmer Award, and in a tone of near-despair, noted that for forty years we have disinvested in the things that are likely to induce lowincome males not to choose crime, calling the net result “among the greatest social catastrophes ever to strike an advanced industrial nation.”18 Although conservatives have tended to dismiss such thinking as not directly relevant to crime control policy, our reading of deterrence theory suggests that it should be central. Turning to another problem with the pain calculus of deterrence theory: if arrest and imprisonment are common experiences for a particular social group, the stigma begins to lose its negative effect and the deterrent effect weakens. Criminologist Robert Tillman estimated that in California 66 percent of young African American males were likely to be arrested before they reached age of thirty. For white males, the estimate was 34 percent.19 Many critics of the war on drugs and our imprisonment policies believe that the high prevalence of arrest among African American males has made arrest a “normal” life experience in the neighborhood. One result is that this weakens the deterrent effect of the threat of arrest and punishment. (And Tillman’s study was published in the 1980s, well before arrests and imprisonment reached their current peaks.) And in fact, the career criminals we discussed in Chapter 4 are not deterred by their frequent arrests and convictions. The Perceived vs. the Real Risk of Punishment The next set of problems with deterrence theory involves how offenders perceive the risk of arrest and punishment. On this issue, there is some complex evidence. It is necessary here to distinguish between the real risks of arrest and punishment, as indicated by official data and other assessments, and the perceived risks on the part of current or potential offenders. As we have already discussed in this book, the real risk of arrest and punishment is fairly low. (Our point in Chapters 2 and 3 was that given an arrest with strong evidence and a defendant with a prior record the probability of conviction and incarceration is fairly high.) Take the case of robbery. The NCVS indicates that victims report about 61 percent of all robberies, and the police cleared of 29 percent of the reported robberies in 2011. After rejections by the police and prosecutors and dismissals by judges, a fairly small percentage of the original robbery incidents are left. The risks for other offenses have been estimated to be even lower. In an assessment of drug enforcement policies, David Boyum and Peter Reuter estimated that for drug dealers doing 1,000 sales a year, the risk of arrest is roughly 1 in every 4,500 sales. One thousand drug sales is an average of three a day, every day of the year, which means that such a person will have a high exposure to arrest. Smaller-time drug dealers would have substantially lower exposure and lower risk of arrest.20 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 140 CHAPTER 6 The risk of arrest and punishment is high mainly for murder. Virtually all murders are discovered and reported to the police. The police cleared 65 percent of all murders in 2011. In a study of spousal murders (see the discussion in Chapter 1), the Justice Department found that 87 percent of all husbands tried for murdering their wives were convicted, and 81 percent of them were sentenced to prison.21 Objectively, the real risk of doing one crime (other than murder) is low. Doing many crimes increases the risk. The subjective assessment of risk is another matter altogether, and we now turn our attention to that issue. Choosing Crime: The Rational Criminal? How current or potential offenders weigh the pains of punishment and other alternatives and make a rational choice is an extremely complex matter. The National Academy of Sciences criticized death penalty research for not investigating this central issue. One question, of course, is whether most criminals are rational actors at all, as deterrence theory assumes. The Rand report on selective incapacitation contains some interesting evidence on the thinking of active offenders. The Rand Inmate Survey (RIS), which forms the empirical base for the report’s estimates about incapacitation, found that offenders were extremely fatalistic about being arrested and punished; they assumed they would eventually be arrested and punished. This did not seem to deter them from criminal activity, however. Prisoners in three states (California, Michigan, and Texas) were asked to estimate the probable results of doing crime. More than 80 percent believed that they had an “even chance” of being arrested, imprisoned, injured, or killed, and more than 60 percent believed that they had a “high chance” of arrest and imprisonment or that it was “certain.” Significantly, they were only half as likely to expect a high chance or certainty of enjoying the benefits of crime, such as “high living,” having “expensive things,” or “being [their] own man.”22 Analyzing these responses, James Q. Wilson and Allan Abrahamse asked the obvious question: If their estimate of bad consequences was so high and their estimate of good consequences was so low, why do they commit crime? The answer, as James Q. Wilson and Allan Abrahamse concluded, was that the RIS offenders did not act rationally, as deterrence theory requires.23 Inquiring further, Wilson and Abrahamse also found that the prisoners consistently overestimated the financial rewards of crime. They acted impulsively, overestimating the immediate, short-term gains of crime and underestimating unpleasant consequences, such as imprisonment, which lay in the future.24 At the same time, they also may have felt that they had no meaningful alternatives in terms of legitimate work—in other words, they perceived no positive rewards for a law-abiding lifestyle. In short, the RIS evidence provides little support for traditional deterrence theory. Even if the message of more severe punishment for doing robbery or drug dealing is communicated to potential offenders, the incentives for law-abiding behavior are so weak in their minds that the shortterm gains of crime loom more attractive. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 141 The evidence on deterrence theory and the realities of the criminal justice system leads us to our next proposition: 11 PROPOSITION Deterrence-oriented crime policies are not likely to reduce serious crime. SCARE THE *%!#@ OUT OF THEM! A Famous but Failed Program A popular deterrence-based program for potential offenders is Scared Straight, which originally involved exposing juveniles to the experience of going to prison as a way of scaring them out of criminal behavior. Scared Straight gained national prominence as the title and subject of a 1978 television documentary that was loosely based on an actual program in a penitentiary in Rahway, New Jersey. (There is also a more recent version available on DVD, following up on the story thirty-five years later.) The program was begun by inmates serving life sentences. Burly, tough-looking prisoners talked tough and yelled at adolescents about how terrible life is in prison. On the surface it seemed like a great idea. Who better to give kids a realistic idea of where crime leads than a group of lifers?25 Scared Straight is a simple deterrence-based program: Give juveniles direct and frightening evidence about the unpleasant consequences of criminal behavior. Many other programs are based on the same theory. Some drug awareness programs, for example, try to convince people that drug use will cause permanent damage. One of the most famous, of course, was the old “thisis-your-brain-on-drugs” advertisement (we will discuss this in Chapter 13). Many antismoking advertisements warn about the hazards of smoking. The original Marlboro Man, who was featured in advertisements for that cigarette, eventually died of lung cancer, and before his death did some antismoking ads. Antidrunk driving programs try to scare kids by showing them pictures of cars that have been totaled in drunk driving accidents. The evidence on Scared Straight, however, is not good. One review examined all the evaluations of programs based on the Scared Straight principle that met evidence-based standards (independent evaluation, randomized or quasirandomized assignment to treatment and control groups, etc.). They found nine studies over twenty-five years that involved a total of more than one thousand participants.26 None of the programs effectively reduced crime, and some even had adverse outcomes. A Michigan program in the 1960s resulted in a 43 percent recidivism rate for those who were subjected to the “scare” component compared with only 17 percent for the control group. Several studies had results that were statistically insignificant, but with more negative than positive results. Finckenauer’s evaluation of the highly publicized New Jersey Scared Straight program found recidivism rates of 41 percent for those in the program Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 142 CHAPTER 6 and only 11 percent for the controls. Only one of the nine evaluations found positive results, but they were not statistically significant. Despite these depressing findings, Scared Straight programs continue to be popular. This represents another triumph of faith over facts. Because it has a commonsense appeal, people don’t want to consider the evidence. In fact, when the negative results of the Squires program in California were released, officials ended the evaluation and kept the program. Why did some of these programs have criminogenic effects and produce higher rates among the treatment group compared with the control group? What is it about these programs that are harmful? Some people argue that fear-based campaigns only heighten the allure of the product and lead to higher usage. In some cases, the claims are so exaggerated that they become jokes among the intended audience. The thisis-your-brain-on-drugs ads, for example, were often laughed at. What is the difference between the Scared Straight programs with prison inmates trying to terrify juveniles and the call-in meetings in focused deterrence programs that we have concluded are successful? Both deliver the message inperson to a select audience. The difference is probably that in the focused deterrence programs the threat of enforcement was followed by actual enforcement. In Cincinnati, for example, there were 240 arrests of people in the targeted group. With the prison-based Scared Straight programs there were no consequences for subsequent criminal acts. It is even easier to explain the failure of fear-based advertising campaigns such as the this is your brain on drugs. In those programs the message was delivered to a general public audience, rather than a carefully selected one, and there were no immediate consequences. In the end, we conclude that fear-based deterrence programs do not reduce crime. DETERRENCE AND THE DEATH PENALTY The death penalty has always been at the center of discussions of deterrence. The idea that it deters crime is one of the two main justifications for the death penalty, with retribution—that it is a just punishment for the most heinous crime—being the other. The subject of deterrence and the death penalty has been one of the most intensively studied issues in criminal justice, with the research focusing on homicides, the only crime for which the death penalty is a possible sentence. And in a 2012 review of the literature, the National Academy of Sciences concluded that there is no evidence that the death penalty decreases, increases, or has any effect whatsoever on homicides.27 Let’s take a closer look at this controversial issue. Sorting out the Issues The merits of the death penalty can be discussed in terms of three separate issues.28 First there is the moral question of whether it is a just form of punishment. Some people firmly believe that the death penalty is a morally justifiable form of punishment for murder, whereas others believe that it is morally wrong. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 143 This debate involves basic conceptions of morality and justice and is not subject to empirical proof one way or the other. The second issue involves the legal question of whether the death penalty is constitutional. Constitutional challenges began in the 1960s and eventually led to the 1972 Furman v. Georgia decision, in which the U.S. Supreme Court ruled that the death penalty had been applied in an unconstitutionally arbitrary and capricious fashion.29 It rejected the argument that capital punishment was inherently cruel and unusual. Four years later, in Gregg v. Georgia, the Court upheld the constitutionality of the death penalty where there were guidelines to control its application.30 The third issue is the one we will discuss here: Does the death penalty deter crime? We do not cover the first two issues not because they are unimportant— they are in fact extremely important—but because as we explained in Chapter 1, our focus in this book in on crime policy. Executions and Crime: The Debate Continues The deterrent effect of capital punishment has been hotly debated and intensively researched for several decades. The research has been marked by steadily more sophisticated research methodologies. One of the earliest studies by the noted criminologist, Thorsten Sellin, compared neighboring states, two with and one without the death penalty. He found that Ohio and Indiana, two death penalty states, did not have lower crime rates than Michigan, which did not have the death penalty. Murder rates in all three states changed in roughly the same direction during the period studies, decreasing from the 1930s to the early 1960s and then rising sharply. This suggests that broad social factors common to all states, rather than executions, were the primary causal factors in homicide rates.31 Sellin’s methodology was simplistic by today’s standards, failing to control for the relevant variables that affect murder rates, and would not be acceptable by today’s standards for death penalty research. Isaac Ehrlich raised the debate to a new level in 1975 with a methodologically sophisticated study of executions and crime trends between 1930 and 1969. He concluded that the death penalty had a powerful deterrent effect, with each execution preventing seven or eight murders.32 An economist, he embraced the rational choice theory of human behavior, popular in that discipline, explaining that the “propensity” to commit crimes “is influenced by the prospective gains and losses associated with their commission.”33 Critics, however, found serious flaws in Ehrlich’s analysis. As is the case with studies using many variables and large data sets, his approach is highly sensitive to problems with the reliability of the data and the time frame studied. In their respective analyses, Brian Forst, Peter Passell, and William Bowers and Glenn Pierce all argue that when the years from 1962 to 1969 are excluded (when crime rates rose dramatically, coinciding with a de facto moratorium on executions that began in mid-1967), Ehrlich’s deterrent effect vanishes.34 His formula does not explain the trends between the 1930s and the early 1960s, when executions declined while the crime rate either declined or remained stable. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 144 CHAPTER 6 Ehrlich’s use of FBI Uniform Crime Reports (UCR) data is also problematic. We have good reason to believe that because of the lack of professionalism in most police departments, these data seriously undercount the amount of crime. In New York City alone, for example, at least two well-documented episodes (in 1955 and 1965) occurred in which administrative changes in the police department produced huge increases in officially reported crime. In Chicago, meanwhile, reporters in 1983 caught the Chicago police unfounding a substantial number of crimes. In other words, the apparent risk of apprehension was higher in the pre-1960 years because police record keeping probably kept the number of reported crimes artificially low.35 Consequently, the real risk of apprehension had not declined as much between 1930 and 1969 as Ehrlich asserted. The 2012 report by the National Academy of Science delivered a devastating report on the subject of deterrence and the death penalty. After reviewing all of the studies conducted over the previous thirty years (the date of the previous National Academy of Sciences report), it concluded that there is no persuasive evidence about “whether capital punishment decreases, increases, or has not effect on homicide rates.”36 In fact, the National Academy expressed “disappointment” in the body of three decades of research, finding a number of serious conceptual and empirical flaws in virtually all of the studies. We have already discussed the major problems, but it is appropriate to summarize them again here. First, studies of the death penalty failed to place it in the context of the full “regime” of sanctions, which include life in prison, life in prison without parole, or a fixed prison term of, say twenty years. We don’t know how these alternative sentences affect the decisions of potential murderers. Second, the National Academy pointed out that studies have not examined how potential murderers “respond to the objective risk of execution.” In fact, we know little if anything about the process of risk assessment by potential murderers. The National Academy report pointed out that only 15 percent of those persons given a sentence of death since 1976 (when executions resumed) were in fact executed. Do potential murderers know this? What exactly is their perception of the risk of doing murder in a death penalty state? And as with all crimes, are the offenders acting as rational people, as deterrence theory assumes? In the end, we agree with the National Academy of Sciences about the lack of evidence regarding the impact of the death penalty, and offer the following proposition: 12 PROPOSITION The death penalty does not deter homicides. DETERRING THE DRUNK DRIVER In the 1980s, a crusade against drunk driving arose and swept the country. Spurred by a wave of public outrage, virtually every state enacted new laws and policies, Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 145 most of which were designed to deter drunk driving through tougher punishment.37 Leading the national crusade was an organization called Mothers Against Drunk Driving (MADD), founded by Candi Lightner, whose thirteen-year-old daughter, Cari, was killed in a crash involving Clarence Busch, who had two previous drunk driving convictions and was out on bail on a third drunk driving charge. Lightner’s death confirmed the belief of many people that repeat drunk drivers beat the system, and it is a classic example of a celebrated case. The “Killer Drunk” and Other Myths A report on the “hardcore drunk driver” opens by telling readers to “Look no further than the headlines across this country.”38 Like so many aspects of criminal justice, the subject of drunk driving is dominated by myths and celebrated cases that inhibit the development of sound and effective policies. The news media prominently cover the worst drunk driving cases, typically where there is a death, even multiple deaths, or serious injuries. Such events are the classic celebrated cases, and they distort the reality of drinking and driving and inhibit the development of sensible policies to combat the problem. It is widely believed, for example, that drunk drivers are responsible for half of all traffic fatalities. One Justice Department report repeated the widely publicized claim that drunk driving kills fifty thousand people every two years—“almost as many American lives as were lost in the entire ten years of the Vietnam war.”39 This grossly exaggerated estimate originated in a 1968 report by the U.S. Department of Transportation (DOT) and has been widely repeated ever since. It just isn’t true, however. In 2011, 9,878 people died in alcohol-impaired accidents, representing 31 percent of all traffic fatalities.40 Take careful note of the phrase “alcohol-impaired.” Alcohol was not necessarily the cause of each of those accidents, but only that the driver was impaired by alcohol. And the data do not indicate the degree of impairment. There is an important distinction between drivers who have been drinking and those whose driving is impaired by drinking.41 In fact, the number of alcohol-related fatalities has been falling in recent years, from 13,472 in 2002 to 9,878 in 2011, a 27 percent decline.42 This is a significant achievement, and we should be on guard against alarmist claims about a drunk driving “epidemic” the next time there is a tragic death because of a drunk driver. And we will take a good look at the important point in those data: what are the reasons why alcoholrelated fatalities have declined so significantly? Another popular myth is that many “killer drunks,” people with a serious drinking problem and many arrests, frequently beat the system.43 The myth of the killer drunk affects our thinking about alcohol and driving in several ways. First, it places the blame on a small number of dangerous people. Second, it emphasizes the killing of innocent people. Third, it puts much of the blame on the criminal justice system for not punishing these offenders and keeping them off the road. Fourth, it makes criminal punishment the primary focus of efforts to reduce traffic fatalities. H. Laurence Ross, one of the top experts on the subject, argues that each of these myths distorts the reality of alcohol-related fatalities.44 First, the problem of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 146 CHAPTER 6 drinking and driving is not confined to a few dangerous people. Driving after drinking is fairly common. The 2012 National Survey on Drug Use and Health estimates that in the years 2006–2009, 30.7 million people older than sixteen reported driving while under the influence of alcohol per year, or 13.2 percent of all people in that age group. Another 10.1 million people, meanwhile, reported driving while under the influence of an illicit drug. And because about 20 to 30 percent of the population does not drink at all, the percentage of drinkers who drive after drinking is higher than 13.2 percent. The good news is that the prevalence of driving while under the influence has declined, from 14.6 percent of the population 16 and older in 2002–2005 to 13.2 percent in 2006–2009.45 There is, of course, a small number of people who are chronic drunk drivers, and we should not minimize that problem. The Century Council (an anti-drunk driving advocacy group sponsored by the leading distillers) defines the “hardcore drunk driver” as someone who drives with a blood-alcohol count (BAC) level of 0.15, does so repeatedly, has more than one arrest, and is “highly resistant” to changing his or her behavior. Interviews with 365 clients in special drunk driving courts yielded some illuminating and alarming findings. Keep in mind, that this is not a representative sample of drivers or even persons arrested for drunk driving. The group averaged three arrests and 2.6 convictions for drunk driving. In the thirty days before their last arrest, 80 percent reported driving drunk at least a few times a month, and 11 percent said they did so almost every day. The responses by members of this group provide an interesting perspective on deterrence theory: 73 percent reported that it is likely that the police will stop a drinking driver at some point, 95 percent think that if stopped they will be arrested, and 97 percent of those think that they will be convicted. In short, they are extremely fatalistic about being stopped, arrested, and convicted—and in fact overestimate the real probabilities—but do not change their ways. Clearly, these people are aware of the threat of criminal sanctions, understand the consequences to be unpleasant, and assess the risk to be high. Nonetheless, all of this has no deterrent effect on them. Interestingly, most felt some remorse for their actions, and 81 percent said that a more severe sanction after their first arrest would have caused them to change their behavior. We should be highly skeptical of such statements because the immediate context of the interviews—DUI (Driving Under the Influence) Court and a recent arrest—undoubtedly enhanced their feelings or remorse. Their actual behavior, moreover, suggests that any such remorse was a temporary feeling46 The evidence of this one study suggests that the hardcore drunk drivers are not deterred by their experience of arrest and punishment. Increasing the punishment seems unlikely to have any effect on their behavior. We should not ignore hardcore or repeat drunk drivers, however. They are indeed a problem, but they distort our perception of the broader drunk driving problem and how we might control it. Another part of the myth of the killer drunk is that innocent drivers or bystanders are the typical victims of alcohol-related crashes. The evidence does not support this belief. Two-thirds (66 percent) of all the people killed in 2011 were the drivers themselves, and another 16 percent were passengers in those Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 147 cars, 11 percent were driving another car, and only 7 percent pedestrians. In some of these cases, they were themselves impaired by alcohol. Thus, only 18 percent can be considered innocent by-standers.47 Third, the argument that the criminal justice system is “soft” on drunk drivers is one part of a general view of the criminal justice system that we have already discussed in Chapters 2 and 3. We will take a close look at the alleged loopholes in the criminal justice system in Chapter 8. Later in this chapter we will look specifically at the handling of drunk driving cases. In fact, most of the drivers killed in alcohol-related crashes do not have a history of drunk driving. The hardcore drunk drivers are a small part of the drinking and driving population, which as we mentioned previously, the best national survey estimates to be 30.7 million people a year, plus the 10 million who reported driving while under the influence of drugs. The problem, of course is that we cannot spot them in advance on the basis of their driving records. Once again, we are up against the prediction problem we discussed in Chapter 4. Finally, and perhaps most important in terms of reducing drinking and driving, both H. Laurence Ross and James B. Jacobs argue that we are not going to reduce alcohol-related traffic fatalities with a single policy and certainly not with a single criminal justice policy. They argue that many different kinds of policies can contribute to reducing alcohol-related traffic fatalities.48 In Chapter 1 we discussed the progress that has been made in reducing smoking and accidental childhood poisonings, and that these achievements have been the result of multipronged efforts.49 As we will argue shortly, the same is true with the drunk driving problem. But first let’s take a close look at the idea of deterrence and drunk driving. Deterrence and Drunk Driving Deterrence-oriented efforts to reduce drunk driving involve both short-term enforcement “crackdowns” (see our discussion in Chapter 5) and long-term changes in sentencing policy.50 In theory, there are some reasons for thinking that tougher punishment is more likely to work with drunk driving than, for example, with robbery or burglary. People who drink and drive are more representative of the general population and are likely to have a stake in society, and therefore are more likely to feel threatened by the stigma of a serious alcoholrelated accident, an arrest, and the impact of such events on their jobs and families. Drunk driving, moreover, occurs in plain view over an extended period of time where it is observable to the police. This leads some people to think that the risk of arrest is higher than, for example, robbery or burglary. The evidence, however, suggests that these assumptions do not work in practice and that deterring the drunk driver is extremely difficult. One of the most famous drunk driving crackdowns involved the 1967 Road Safety Act in England. The law empowered the police to require a breath test of any driver and specified that refusal to submit to the test was punishable as an actual failure. It attempted to increase the certainty of apprehension, without changing the Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 148 CHAPTER 6 severity of punishment.51 The new law did have an immediate impact. Weekend traffic fatalities and serious injuries dropped to one-third of their previous levels. Some observers saw this as evidence of a deterrent effect. But the effect gradually wore off. Within three years, fatalities had returned to their previous level. This “decay” of the deterrent effect appears to be a general phenomenon in enforcement crackdowns. A 1984 Justice Department evaluation of four anti-drunk driving campaigns found similar results and concluded that the deterrent effects of an enforcement effort, even when it exists, “appear to diminish over time.”52 The British crackdown also illustrated a phenomenon known as the announcement effect. The publicity surrounding a crackdown caused people to alter their behavior: they decided not to have another drink, or they asked someone else to drive them home; a bartender refused to serve a drink, or friends told someone that he or she had had enough to drink. In short, people did know about the crackdown, did perceive the threat of increased punishment, and made rational decisions to alter their behavior. In some instances, these changes occurred before the law actually went into effect, as people’s awareness of the potential penalty rises. The announcement effect may also influence the behavior of police officers, causing them to become more active in stopping drunk drivers in the early months of a new law. The Justice Department evaluation of four anti-drunk driving campaigns found that arrests went up in three of them but not in the one where there was “relatively little publicity” about the mandatory imprisonment law.53 As the publicity surrounding an enforcement effort diminishes, however, the effect wears off. Drinkers become less conscious of the risks and gradually revert to their normal drinking and driving behavior. Police officers return to their normal levels of enforcement activity. The announcement effect strikes at the heart of deterrence theory. The theory assumes that the message is communicated to its intended audience. But if that message wears off with time, then so does the deterrent effect. One of the problems with drunk driving crackdowns is that the risk of arrest is in fact extremely low. In his evaluation of the British experiments, H. Laurence Ross estimated that the probability of being asked to submit to a breath test was 1 per million vehicle miles driven. (Consider this figure in terms of the mileage on your odometer.) The risk was higher for drinking drivers because their behavior attracted the attention of the police, but it was still “low by any reasonable criterion.” The U.S. DOT estimated that someone would have to drive drunk between two hundred and two thousand times to be apprehended—and even then would face only a 50 percent chance of being punished.54 Most people, moreover, believe that the risk is low. A 2009 study of licensed drivers in Maryland found that 72 percent did not feel that it was likely they would be stopped by the police if they drove after having too much to drink; 28 percent felt that it was likely. Previous studies reached nearly identical estimates.55 These findings are especially important for deterrence theory because, as we explained, to be deterred people have to perceive a risk of something unpleasant. Hardcore drunk drivers are a special case and not representative Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 149 of the general population. They believe the risks of arrest and punishment are high, but that does not affect their behavior. For most people, the belief in a low risk of arrest for drunk driving is a realistic assessment. Looking at drunk driving enforcement from the perspective of the police officer also helps explain why the risk is low. Both regular patrol officers and traffic unit officers are theoretically on the lookout for drunk drivers. Regular patrol officers, however, have many responsibilities—law enforcement, order maintenance, and service—and are concerned primarily with answering calls for service. Moreover, as we learned in Chapter 5 they are spread thin and are responsible for patrolling streets that are not prime “hunting grounds” for drunk drivers. Traffic unit officers, meanwhile, represent no more than about 10 percent of the sworn officers in a department. They also have other responsibilities, such as watching for speeders. An arrest, moreover, takes a traffic officer out of service for as long as an hour or two. In short, the number of police officers actively hunting for drunk driving is fairly low. Traffic enforcement is affected by both incentives and disincentives. The primary incentive is that traffic arrests result in court time. Depending on the department, that may be a lucrative source of overtime pay. The disincentives include several factors. Traffic stops are unpleasant and occasionally dangerous experiences for police officers. Citizens resent them, are sometimes belligerent, and on occasion the incident escalates into a serious confrontation. Traffic situations are also the fourth most hazardous situation for police officers in terms of officers killed on duty (and these situations include accidents resulting from pursuits).56 In the absence of any strong incentives, such as ticket quotas, most cops prefer to avoid traffic stops except in the most serious cases. When officers do make arrests, the law of diminishing returns comes into play. Processing an arrest may take up to two hours (or more, depending on local procedures). Thus, each arrest removes the police officer from the street and lowers the level of enforcement on the streets. Although there may be some gain in specific deterrence related to the person arrested, there is an offsetting loss in general deterrence. If the hunters are few, the hunted are many and well hidden among lawabiding drivers. Experts estimate that even during the peak drunk driving hours (Friday and Saturday nights), only about 3 to 4 percent of all drivers are legally drunk.57 Perhaps another 5 percent have some detectable level of alcohol in their blood. But some drivers who are legally drunk may not be impaired, and their driving may not attract the attention of the police. The drive home from a neighborhood bar may be short, leaving a small window of opportunity for detection. Drunk Drivers in Court Another factor undermining the deterrent effect of a crackdown is the fate of drunk driving cases in court. James B. Jacobs estimates that about 90 percent of all arrested drunk drivers are convicted through guilty pleas.58 In this respect, the prosecution of drunk driving offenses is similar to the handling of other criminal cases. Those data, however, reflect only convictions. The main purpose of crackdowns is to Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 150 CHAPTER 6 deter drunk driving by increasing the severity of punishment, usually through a mandatory jail or prison sentence. Mandatory sentencing provisions can be evaded through dismissal, plea bargaining, or blatant disregard for the law. H. Laurence Ross and James P. Foley examined the implementation of new mandatory sentencing laws enacted in New Mexico and Indiana in the 1980s. The New Mexico law required a jail term of not less than forty-eight hours for offenders with a prior drunk driving conviction and prohibited suspended sentences. Ross and Foley found that in 238 cases, the mandated sentence was imposed and served in only 106, or 45 percent of the total. In another 60 cases (25 percent), the mandatory sentences were imposed but there was no documented proof that the offenders served them. In 10 percent of the cases, the judge suspended the sentence, and in another 20 percent the offender served no jail sentence. The Indiana law mandated five days in jail, with at least forty-eight consecutive hours, or a minimum of eighty hours of community service for offenders with a prior drunk driving conviction. Yet 30 percent of the convicted offenders did not serve the mandated sentence. Of 753 cases, 64 percent served the forty-eight consecutive hours, and another 6 percent did the required eighty hours of community service.59 Ross and Foley offer several possible explanations for this evasion of mandatory sentences. In some cases, the judges may have been ignorant of the offender’s prior record. We might ask whether this was a result of inefficiencies in court records or whether judges consciously chose not to find out as a deliberate strategy for evading the mandatory sentencing provision. It is possible that some jurisdictions do not have data systems that accurately record all prior convictions. Or it is possible that prosecutors do not file evidence of prior convictions (This is one of the methods prosecutors use to evade three-strikes laws, as we will see in Chapter 7). In others, judges may have chosen to interpret the law as covering only certain kinds of prior convictions (for example, felonies and not misdemeanors). Judges may have simply ignored the law in some cases. For some sentenced offenders, the term forty-eight hours may not have been interpreted literally. Correctional officials may have counted a few hours a day as representing the entire day; if the offender spent a few hours in jail spanning midnight, he or she might have been credited with having served both days. Similar evasions of mandatory sentencing have been found in studies of other crackdowns. Evasion of the law by justice officials is not universal by any means. The Justice Department’s evaluation of enforcement efforts in Seattle found that the incarceration rate for convicted drunk drivers went from 9 to 97 percent as a result of new mandatory confinement procedure was adopted. The law was not that tough, however; it mandated only a minimum of one day in jail for convicted drivers with a blood alcohol count of 0.10 or greater. In Memphis, where a new law mandated forty-eight-hour incarceration for first-time offenders and forty-five days for second offenses, incarceration went from 29 to almost 100 percent.60 A 1982 California law increased the statewide jail incarceration rate for second-time offenders from 83 percent in 1980 to 97.5 percent in 1984. In Sacramento County, the percentage of first-time drunk drivers sent to Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 151 jail went from 10 percent to more than 50 percent. These data make it clear that second-offense drunk drivers were not getting off easy before passage of the new law. The most significant effect of the California law was on first-time offenders; the percentage going to jail increased from about 10 percent to more than 50 percent.61 In short, patterns of prosecution vary, according to the standards of local court room work groups, and we need to be sensitive to that. As the Ross and Foley study suggests, a certain amount of evasion of mandatory sentencing persists in some jurisdictions that undermines both the certainty and the severity of punishment. This compounds the low perceived and actual risk of arrest. In the end, most experts believe that enforcement crackdowns are not likely to deter drunk driving. After reviewing all the evidence, Ross concludes that “deterrence-based policies are questionable in the long run. No such policies have been scientifically demonstrated to work over time.”62 Jacobs agrees but adds that deterrence-based laws play a symbolic role in expressing society’s moral condemnation of drunk driving.63 Our conclusion can be stated as follows: 13 PROPOSITION Enforcement crackdowns do not deter drunk driving over the long term. A MULTIPRONGED STRATEGY FOR DEALING WITH TRAFFIC FATALITIES Actually, there is considerable good news about traffic fatality trends. As Table 6.1 indicates, the motor vehicle death rate per 100,000 vehicle miles dropped from Illustration by Frank Irwin, © Wadsworth, Cengage Learning. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 152 CHAPTER T A B L E 6.1 6 Motor vehicle deaths per 100,000 vehicle miles Year Death rate 1927 16.33 1937 14.68 1947 8.82 1957 5.98 1967 5.50 1977 3.35 1987 2.51 1997 1.71 2003 1.75 2008 1.27 2011 1.10 SOURCE: National Highway Traffic Safety Administration, Traffic Safety Facts, 2011 Data (Washington, DC: Department of Transportation, 2013), Table 1. U.S. Department of Transportation Facts 2003 (Washington, DC: U.S. Department of Transportation, 2004). 16.33 in 1927 to 3.35 in 1977 to 1.10 in 2011 (this includes all fatalities and not just alcohol-related).64 The long-term decline since 1927 is enormous, and the 37 percent reduction between 2003 and 2011 alone is remarkable. The number of people killed in traffic accidents, moreover, declined by 27 percent from 2002 (13,472) to 2011 (9,878).65 Interestingly, the number of motorcycle-related deaths increased from 4,462 in 2009 to 4,741 in 2011. This was during a period when automobile fatalities were declining. The main for the increase was the tremendous growth is sales and the number of motorcycles on the road. Moreover, the fatality rate increased, both in terms of per 100,000 registered vehicles and also per 100 million vehicle miles traveled. The increase in the fatality rate for motorcycle accidents suggests that many of the new motorcycle owners were inexperienced in operating a bike.66 A 2005 study, moreover, found that the use of helmets among both motorcycle drivers and riders declined from 71 percent in 2000 to 58 percent in 2002 (but it rebounded to 66 percent by 2011). The study estimated that helmets reduce fatalities by 37 percent. (The methodology involved comparing fatality rate in two passenger accidents where one was wearing a helmet and the other not wearing one.) It concluded that 1,798 lives would be saved nationally if helmet use was 100 percent.67 How do we explain the steady drop in motor vehicle deaths over the course of many decades? The evidence suggests that it was not as a result of enforcement crackdowns. Instead, it was a process of several changes working together over the long term. Tougher enforcement by the criminal justice system may have contributed to this decline, but both Ross and Jacobs argue that at best it was only one factor. Other social policies also played important roles. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 153 First, cars have become safer. Steering wheels, for example, are less likely to impale a driver than they were in the 1950s. Dashboards and door handles have been redesigned over the years to reduce potential harm in accidents. Second, new safety features, including seat belts, airbags, and child restraints have saved many lives. Seat belts are required on all new cars, and their use is mandatory in every state except New Hampshire. The National Highway Traffic Safety Administration (NHTSA) estimates that seat belts saved 11,949 lives in 2011, and a total of 292,471 since 1975. That is a lot of lives. Child restraints, meanwhile, saved 263 lives in 2011, and 9,874 since 1975. Finally, airbags saved 2,204 lives in 2011, and 34,757 since 1975. Motorcycle helmets saved 1,829 lives in 2008 (the most recent data available). Table 6.2 presents the estimated lifesaving totals for all safety devices and laws.68 Third, federal law has forced states to raise the legal age for drinking to twenty-one (by withholding federal highway funds if they do not). Although this law has not necessarily curbed teenage drinking, it may have helped reduce drunk driving by teenagers; DOT estimates that the higher age limit saved 714 lives in 2008.69 Fourth, the policy of administrative license revocation (ALR) has resulted in speedier loss of driver’s licenses. In this procedure, a police officer can revoke a license on the spot if the driver fails a breath test. Forty-one states have ALR laws. It is important to point out that this is a civil law rather than a criminal law approach. It rests on the theory that a driver’s license is essentially a privilege that can be withdrawn without resort to the full criminal process. Ross argues that it is both swift and certain, resulting in the immediate incapacitation of the offender (in the sense that the person cannot drive legally, although obviously some people drive without a license). He cites studies indicating that this approach has been effective in reducing alcohol-related accidents and fatalities.70 Fifth, socialization may have contributed to some of the long-term reduction in traffic fatalities. The national anti-drunk driving crusade, with all of the attendant publicity, may have helped change attitudes and behavior about drinking and driving. According to the National Household Survey, the best longitudinal data available, the percentage of people reporting that they drove after drinking fell from 25 percent in 1983 to 16 percent in 1995 and 11.1 percent in 2011. This is a steady and significant decline. The percentage indicating that they “never” drove after drinking rose correspondingly.71 Sixth, the National Safety Council’s policy of Graduated Driver Licensing (GDL) allows limited driving privileges to teenagers and then gradually expands T A B L E 6.2 Lives saved in 2011 by restraints and minimum drinking age laws Child restraints Seat belts Frontal air bags Motorcycle helmets Minimum drinking age laws 11,949 2,204 1,829 (2008) 714 (2008) 263 SOURCE: National Highway Traffic Safety Administration, 2011 Data, Occupant Protection (Washington, DC NHTSA, 2013). National Highway Traffic Safety Administration, Traffic Safety Facts, Lives Saved in 2008 by Restrain Use and Minimum Drinking Age Laws (Washington, DC: NHTSA, 2009). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 154 CHAPTER 6 them. (For additional information, go to the National Safety Council website.) It is well known that teenagers, and young men in particular, engage in the riskiest driving behavior. Reducing their driving, or introducing them to driving gradually, is likely to reduce traffic accidents and fatalities. Although almost all states always had provisions for temporary licenses, the idea of a comprehensive system emerged only in the 1980s, first in New Zealand and then in Canada. It finally began to spread in the United States in the 1990s. Evaluations have found reductions in the number of crashes ranging from a high of 60 percent to a low of 4 percent among teenage drivers.72 Ignition Interlock Systems: Focused Incapacitation? The seventh change contributing to the decline traffic fatalities, and alcoholrelated accidents and fatalities in particular, is the “interlock” ignition system. The interlock is an in-car breathalyzer test that prevents the vehicle from starting if the driver records a BAC that is too high. To prevent evasion by having another person take the initial test to start the car, interlock devices can be set for a series of “running” tests once the vehicle is operating to ensure that the same person is driving the car. Interlocks are used as part of the punishment for a drunk driving conviction, and their use has been growing. In 2009 an estimated 180,000 systems were in use, and one report indicated that by mid-2013 there were 300,000.73 Interlock systems are actually a form of selective incapacitation rather than deterrence. (We will discuss incapacitation in detail in Chapter 7.) Deterrence, as we explained, is a strategy for changing the choices about behavior that people make. With an interlock, however, the subject has no choice: the car won’t start. Indeed, it thwarts the choice that the would-be driver has made (to drive after drinking). Interlocks are selective in that they target a small and specific group of people. Granted, there are undoubtedly ways of evading interlock devices, such as borrowing someone else’s car that has no interlock system. Even then, however, many if not most family members and friends are likely to think about their potential liability and be reluctant loan their care to someone with a drunk driving record and current criminal sentence. (Dysfunctional family members and friends who would loan the car, of course, are always a problem in this regard.) The problem with tough sentencing laws, as we discussed, is that the deterrent message is diffuse, spread over the entire population. And as experience has taught us, tough sentences leave a lot of room for prosecutorial and judicial discretion regarding “mandated” sentences. Evaluations of interlock systems have consistently found them to be effective in reducing recidivism during the time they are operational. This is hardly surprising because the device is designed to keep the person from driving that car. With respect to the postinterlock period, one evaluation found that drunk driving recidivism returned to the level of the control group. One other study, however, found a carryover effect, with reduced recidivism continuing into the following two- and four-year periods. The authors suggested a learning theory explanation for this continued benefit.74 In this regard, the Century Council recommends Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 155 that alcohol education and treatment are included in any interlock sentence. The problem with repeat offenders, and hardcore drunk drivers in particular, is that they are resistant to deterrence messages and need to undergo significant behavioral change. How to achieve that is a major challenge that goes beyond the scope of our discussion here. The point of the previous discussion is that we have in fact dealt effectively with a serious social problem, motor vehicle deaths, over the long term. The data in Table 6.1 are powerfully impressive. We have done it primarily with strategies that do not involve criminal law enforcement, and certainly not enforcement crackdowns, and we did not rely on any single strategy. This follows our discussion in Chapter 1 of dealing with social problems through multipronged strategies and not relying exclusively on the criminal justice system. Criminal sanctions may one part of a multipronged approach, but should not be the only or even the most important strategy. We will return to it again when we discuss drugs and drug-related crime in Chapter 13. There are important implications here for dealing with robbery and burglary, the original focus of this book, and other crimes. Specialized DUI Courts Another important new development regarding drunk driving involves specialized drunk driving courts (which we will call DUI courts). They are modeled after drug courts, which we discuss in Chapter 13, and are designed to provide treatment as part of a criminal sentence for repeat drunk driving offenders. They have been evaluated and the results are promising. A NHTSA study evaluated DUI courts in three Georgia counties that had served a total of 1,053 clients by the time of the study. Eligibility in each of the three DUI courts involved two DUI convictions in the last three to five years, and some additional criteria for each court. Consistent with national data on drinking and driving, the clients were mainly male (83 percent), white (61 percent), and employed (60 percent). DUI court participants’ performance was compared with one group of matched offenders who were in court before the DUI courts were created and another matched group of offenders in counties without DUI courts.75 The treatment component of DUI Courts is designed to affect behavioral change. It is increasingly recognized that repeat drunk driving offenders, who the Century Council call hardcore drunk drivers, have serious behavioral problems that are at the root of their lifestyles and drinking habits. These behavioral problems inhibit the deterrent effect of tough criminal sanctions because the hardcore drunk drivers do not make rational choices about risks and benefits. Nor do they learn from the unpleasant experience of their early arrests and convictions. The DUI courts in the study included intensive supervision of offenders by both judges and probation officers. Active involvement of judges is also one of the special features of drug courts. Alternative sanctions and treatments included a fine, license revocation, ignition interlock, alcohol treatment services, random alcohol and drug testing, community service, and the threat of a jail sentence (probation revocation) for noncompliance with the terms of the program. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 156 CHAPTER 6 The evaluation found that during the four years studied, DUI court clients had an overall recidivism rate of 15 percent, compared with a 24 percent for the matched contemporary group and 35 percent for the matched group of pre-DUI court offenders. The number of prior DUI convictions was a powerful predictor of recidivism, with each prior increasing the likelihood of recidivism by 28 percent. This suggests that the hardcore drunk drivers are more deeply committed to their drinking behavior are simply less amenable to treatment by the DUI courts. The success of the DUI courts highlight several themes that arise in several chapters of this book. We discuss DUI courts in this chapter on deterrence, but the evidence does indicate that relying solely on the threat of criminal sanctions has at best only limited effect in addressing what we regard as a problem in criminality (drunk driving). The evidence suggests that traffic fatalities have been reduced over the decades by a multipronged approach that includes many different approaches. In Chapter 1, we cited the successes in the public health area in this regard.76 The DUI courts rely on many of the same principles used in the police innovations we discussed in Chapter 5: focusing on a select group of serious offenders, developing partnerships with social service agencies, and using interventions other than pure criminal sanctions. In Chapter 13, we will see how drug courts have been successful with the same approach. 14 PROPOSITION A multipronged strategy, including using noncriminal justice programs, have proven effective in reducing traffic-related fatalities. CONCLUSION The commonsense notion that people will avoid unpleasant things and that we can influence their decisions by increasing the unpleasantness does not necessarily work in the real world of criminal justice. Let us be careful about exactly what we are saying. As in so many other areas, it is not true that “nothing works.” The criminal law does have some deterrent effect. Most of us, after all, do not become career criminals. The threat of punishment, however, probably plays a relatively minor role in influencing the behavior of law-abiding people. The threat works, but it just is not the major factor. In terms of controlling behavior, the broader processes of socialization are the primary factors. As criminologist Leslie Wilkins once put it, there are “those of us who have never needed a deterrent.”77 In this chapter we have seen that the authoritative National Academy of Sciences found no persuasive evidence of a deterrent effect of the death penalty, in terms of reducing homicides, increasing homicides, or having no impact whatsoever. The most devastating aspect of the report was its criticism that the research on the subject was deeply flawed. And we should remember that the death penalty has been the most intensively studied subject with respect to deterrence. We simply do not know how potential offenders perceive the risk of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 157 punishment and process that perception in deciding whether or not to commit crime. What we have learned about drunk driving is particularly relevant for deterrence and other crime policies. In fact, we have made substantial progress in reducing traffic fatalities and saving lives. We have not achieved that through crackdowns designed to deter drunk driving. We have achieved it through a multipronged approach that includes a variety of strategies, only some of which involve criminal prosecution. As we mentioned in Chapter 1, the same approach has been successfully applied to other social problems. There is an important lesson here for the entire criminal justice system. NOTES 1 The best treatment of the subject is still Franklin E. Zimring and Gordon J. Hawkins, Deterrence: The Legal Threat in Crime Control (Chicago: University of Chicago Press, 1973). 2 Ibid. 3 Scott Decker, Richard Wright, and Robert Logie, “Perceptual Deterrence among Active Residential Burglars: A Research Note,” Criminology 31 (February 1993): 135. 4 Zimring and Hawkins, Deterrence, 92–248. 5 Ibid., pp. 13–14. 6 Ronald L. Akers, “Rational Choice, Deterrence, and Social Learning Theory in Criminology: The Path Not Taken,” Journal of Criminal Law and Criminology 81 (Fall 1990): 653–676. 7 See, for example, the extremely influential conservative argument in Charles Murray, Losing Ground American Social Policy, 1950–1980 (New York: Basic Books, 1984). 8 Alex R. Piquero and Stephen G. Tibbetts, eds., Rational Choice and Criminal Behavior: Recent Research and Future Challenges, 2nd ed. (New York: Routledge, 2012). 9 Daniel S. Nagin, “Moving Choice to Center Stage in Criminological Research and Theory: The American Society of Criminology 2006 Sutherland Address,” Criminology 45 (no. 2, 2007): 259–272. 10 Dallin Oaks, “Studying the Exclusionary Rule in Search and Seizure,” University of Chicago Law Review 37 (Summer 1970): 665–757. 11 Daniel S. Nagin, “Criminal Deterrence Research at the Outset of the Twenty-First Century,” in Michael Tonry, ed., Crime and Justice: A Review of Research, (Chicago: University of Chicago Press, 1998), 23:4–6. 12 Daniel S. Nagin and John V. Pepper, eds., Deterrence and the Death Penalty (Washington, DC: National Academies Press, 2012), 2. 13 Robin S. Engel, Marie Skubak Tillyer, and Nicholas Corsaro, “Reducing Gang Violence Using Focused Deterrence: Evaluating the Cincinnati Initiative to Reduce Violence (CIRV)”, Justice Quarterly 30 (No. 3, 2013):403–439. 14 Ibid. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 158 CHAPTER 6 15 The full range of post-prison release disabilities are catalogued in Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (New York: Oxford University Press, 2003). 16 Nagin and Pepper, Deterrence and the Death Penalty, 4–5. 17 Francis T. Cullen, Travis Pratt, C. L. Micelli, and M. M. Moon, “Dangerous Liaison: Rational Choice Theory as the Basis for Correctional Intervention,” in Alex Picquero and Stephen Tibbetts, eds., Rational Choice and Criminal Behavior: Recent Research and Future Challenges (New York: Routledge, 2002), 279–296. 18 Elliott Currie, “On Being Right, But Unhappy,” Criminology and Public Policy 9 (no. 1, 2010): 8. 19 Robert Tillman, “The Size of the Criminal Population: The Prevalence and Incidence of Adult Arrest,” Criminology 25 (August 1987): 561–597. 20 David Boyum and Peter Reuter, An Analytic Assessment of US Drug Policy (Washington, DC: AEI Press, 2005). 21 Bureau of Justice Statistics, Spouse Murder Defendants in Large Urban Counties (Washington, DC: Department of Justice, 1995). 22 James Q. Wilson and Allan Abrahamse, “Does Crime Pay?” Justice Quarterly 9 (September 1992): 373. 23 Wilson and Abrahamse, “Does Crime Pay?” 24 Ibid., 372–373. 25 James O. Finckenauer, Scared Straight and the Panacea Phenomenon (Englewood Cliffs, NJ: Prentice-Hall, 1982). 26 Anthony Petrosino, Carolyn Turpin-Petrosino, and John Buehler, “Scared Straight and Other Juvenile Awareness Programs for Preventing Juvenile Delinquency: A Systematic Review of the Randomized Experimental Evidence,” The Annals of the American Academy of Political and Social Science 589 (September 2003): 41–62. 27 Nagin and Pepper, Deterrence and the Death Penalty, 2. 28 Raymond Paternoster, Capital Punishment in America (Lexington, MA: Lexington Books, 1991), part IV, “Arguments for and against the Death Penalty,” 185–270. 29 Furman v. Georgia, 408 U.S. 238 (1972). 30 Gregg v. Georgia, 428 U.S. 153 (1976). 31 Thorsten Sellin, The Penalty of Death (Beverly Hills, CA: Sage, 1980). 32 Isaac Ehrhch, “The Deterrent Effect of Capital Punishment: A Question of Life and Death,” American Economic Review 65 (1975): 397–417. 33 Ibid. 34 Brian Forst, “Capital Punishment and Deterrence: Conflicting Evidence,” Journal of Criminal Law and Criminology 74 (Fall 1983): 927–942. Peter Passell, “The Deterrent Effect of the Death Penalty: A Statistical Test,” Stanford Law Review 28 (November 1975): 61–80. William J. Bowers and Glenn Pierce, “The Illusion of Deterrence in Isaac Ehrlich’s Research on Capital Punishment,” Yale Law Review 85 (1975): 187–208. 35 Robert Hood and Richard Sparks, Key Issues in Criminology (New York: McGrawHill, 1980), 40–41. Zimring and Hawkins, Deterrence, 334. Philip Wattley, “City Hit on Crime Data,” Chicago Tribune, 28 April 1983: 1–2. 36 Nagin and Pepper, Deterrence and the Death Penalty. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. DETER THE CRIMINALS 159 37 The two best studies of the subject are H. Laurence Ross, Confronting Drunk Driving: Social Policy for Saving Lives (New Haven, CT: Yale University Press, 1992), and James B. Jacobs, Drunk Driving: An American Dilemma (Chicago: University of Chicago Press, 1989). 38 The Century Council, Stopping Hardcore Drunk Driving: Offender’s Perspectives on Deterrence (Washington, DC: The Century Council, nd.) 39 Bureau of Justice Statistics, Jailing Drunk Drivers: Impact on the Criminal Justice SystemStatistical Tables (Washington, DC: Department of Justice, 1984). 40 National Highway Traffic Safety Administration, Traffic Safety Facts, 2011 Data: Alcohol-Impaired Driving (Washington, DC: National Highway Traffic Safety Administration, 2012). 41 Jacobs, Drunk Driving, 27–28; Ross, Confronting Drunk Driving. 42 National Highway Traffic Safety Administration, Traffic Safety Facts 2011 Data: Alcohol-Impaired Driving. 43 Ross, Confronting Drunk Driving, 21–22, 168–170. 44 Ross, Confronting Drunk Driving. 45 National Survey on Drug Use and Health, State Estimates of Drunk and Drugged Driving (May 31, 2012). 46 The Century Council, Stopping Hardcore Drunk Driving: Offender’s Perspectives on Deterrence (Washington, DC: The Century Council, nd). 47 National Highway Traffic Safety Administration, Traffic Safety Facts, 2011: AlcoholImpaired Driving. 48 Jacobs, Drunk Driving, Ross, Confronting Drunk Driving. 49 Dariush Mozaffarian, David Hemenway, David S. Ludwig, “Curbing Gun Violence: Lessons from Public Health Success,” Journal of the American Medical Association 309 (February 13, 2013): 551–552. 50 Lawrence W. Sherman, “Police Crackdowns: Initial and Residual Deterrence,” in Michael W. Tonry and Norval Morns, eds., Crime and Justice: An Annual Review of Research (Chicago: University of Chicago Press, 1990), V. 12: 1–48. 51 H. Laurence Ross, Deterring the Drinking Driver: Legal Policy and Social Control, rev. ed. (Lexington, MA: Lexington Books, 1984), 24–34. 52 Bureau of Justice Statistics, Jailing Drunk Drivers, 2. 53 Ibid. 54 Ross, Deterring the Drinking Driver, 33, 105. 55 Donald E. Green, “Past Behavior as a Measure of Actual Future Behavior: An Unresolved Issue in Perceptual Deterrence Research,” Journal of Criminal Law and Criminology 80 (1989): 781–804. 56 Federal Bureau of Investigation, Law Enforcement Officers Killed and Assaulted, 2003. Report issued annually. 57 Jacobs, Drunk Driving, 47. 58 Jacobs, Drunk Driving, 98–100. 59 H. Laurence Ross and James P. Foley, “Judicial Disobedience of the Mandate to Imprison Drunk Drivers,” Law and Society Review 21:2 (1987): 315–323. 60 Bureau of Justice Statistics, Jailing Drunk Drivers, 2. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 160 CHAPTER 6 61 Rodney Kingsworth and Michael Jungsten, “Driving under the Influence: The Impact of Legislative Reform on Court Sentencing Practices in Drunk Driving Cases,” Crime and Delinquency 34 (January 1988): 3–28. 62 Ross, Deterring the Drinking Driver, 111. 63 Jacobs, Drunk Driving, 126. 64 National Safety Council, Injury Facts (Washington, DC: National Safety Council, 2003). National Highway Traffic Safety Administration, Traffic Safety Facts 2008 Data Overview, Table 2. 65 National Highway Traffic Safety Administration, Traffic Safety Facts, 2011 Data: Alcohol-Impaired Driving, Figure 1. 66 Ibid., Table 3. National Highway Traffic Safety Administration, Occupant Protection: 2011 Data (Washington, DC: National Highway Traffic Safety Administration, 2013). Traffic Safety Facts: 2008 Data, Motorcycles (Washington, DC: National Highway Trafffic Safety Administration, 2009). 67 William V. Deutermann, Calculating Lives Saved by Motorcycle Helmets Traffic Safety Fact: Research Note (Washington, DC: National Highway Traffic Safety Administration 2005). 68 National Highway Traffic Safety Administration, Traffic Safety Facts Lives Saved in 2008 by Restraint Use and Minimum Drinking Age Laws (Washington, DC: NHTSA, 2009), Table 1. 69 Ibid. 70 U. S. Department of Transportation, Reducing Highway Crashes Through Administrative License Revocation (Washington, DC: Government Printing Office, 1986); Ross, Confronting Drunk Driving, 63–67. 71 National Survey on Drug Use and Health, State Estimates of Drunk and Drugged Driving. 72 Herb M. Simpson, “The Evolution and Effectiveness of Graduated Licensing,” Journal of Safety Research 34 (2003): 25–34. 73 The Century Council, Ignition Interlocks: What You Should Know (Washington, DC: The Century Council, nd). Insurance Institute for Highway Safety, Alcohol Ignition Interlocks and the Prevention of Alcohol Impaired Driving. Presentation, NHTSA Meeting, August 22, 2007, Washington, DC. 74 Richard Roth, Robert Voas, and Paul Marques, “Mandating Interlocks for Fully Revoked Offenders: The New Mexico Experience,” Traffic Injury Prevention 8 (2007): 20–25. William J. Rauch, et al, “Effects of Administrative Ignition Interlock License Restrictions on Drivers with Multiple Alcohol Offenses,” Journal of Experimental Criminology 7 (2011): 127–148. 75 James C. Fell, Scott Tippetts, and Elizabeth Langston, An Evaluation of the Three Georgia DUI Courts (Washington, DC: National Highway Traffic Safety Administration, 2011). 76 Dariush Mozaffarian, David Hemenway, David S. Ludwig, “Curbing Gun Violence: Lessons from Public Health Success,” Journal of the American Medical Association 309 (February 13, 2013): 551–552. 77 Quoted in Zimring and Hawkins, Deterrence, 97. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 7 Lock ’Em Up GETTING CRIMINALS OFF THE STREET “Lock ’em up” is not just a conservative crime policy. For the last forty years it has been the U.S. crime policy. The first edition of this book in 1985 labeled it a conservative policy, as distinct from the liberal’s preferred policy to seeking to rehabilitate rather than punish criminal offenders. Even then, however, the ground was shifting rapidly, and liberals were already on the way toward embracing crime policies designed to lock up offenders: preventive detention rather than bail; the philosophy of incapacitation to keep serious offenders in prison and off the streets; and mandatory sentences to curb the discretion of judges and ensure that convicted offenders would be sentenced to prison and for long prison terms.1 We will look at each of these policies in this chapter. The national consensus about locking up criminals resulted in a new and astonishing era in U.S. criminal justice history, as Figure 1.2 in Chapter 1 indicates. The impacts range far beyond crime and the criminal justice system, moreover, affecting communities, families, race relations, prison conditions, and the budgets of governments at the federal, state, and local levels. Taking 1972 as our starting point, the number of people locked up in prison rose from 174,379 in 1972 (the year before the surge began) to 1,598,780 in 2011. In addition there were 735,601 people in jail in 2011 (mid-year), 3.9 million on parole and 853,000 on probation, parole, for a total of 6.9 million people “under correctional supervision.”2 At the time it began forty years ago, no one had any idea that the enthusiasm for locking people up would lead to this. Criminologist have deplored the lock ’em up movement from the beginning. In the early years many predicted that it would not reduce crime, and later, with evidence available, produced studies indicating that longer sentences or incarcerating more people did not lead to lower crime rates. The titles of some of their books express their sense of alarm: Jerome Miller’s Search and Destroy (1996) argued that the war on drugs in particular targeted African American men3; Todd Clear’s Imprisoning Communities argued that the huge imprisonment rate 161 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 162 CHAPTER 7 in the United States destroyed the communities from which most offenders come from4; Michelle Alexander’s best-selling book The New Jim Crow went even further, seeing a deliberate social policy to reverse the gains of the civil rights movement and reestablish a racial caste system in the United States.5 These books and numerous studies, however, had no impact whatsoever on popular opinion or the decisions of elected officials. We need to add a note here that there are straws in the wind of a change in both public attitudes and public policy. Beginning in 2010, the growth in the U.S. prison population leveled off. Across the country, many states revised their policies to lower sentences or allow for the earlier release of prisoners.6 It is still too early to tell whether a genuine reversal of public policy will occur. After all, the change at the moment involves only an end to the growth in the prison population, not a significant reduction. We will need to monitor events closely in the years ahead. Given the strong consensus of opinion on both the ineffectuality of mass incarceration and its destructive collateral damage, criminologist Richard Rosenfeld is surely correct in stating that “Mass incarceration is the criminological issue of our time.”7 In this chapter we will examine the major policy landmarks that have been responsible for so many people being locked up: preventive detention as a bail policy, incapacitation as a sentencing policy, and mandatory sentencing, including particularly the New York Rockefeller Drug Law and California’s three-strikes law. We will conclude with an examination of sex offender registration and notification laws. Although they do not involve locking people up, they reflect the same impulse of trying to keep criminals at a distance from mainstream society. JAIL NOT BAIL: PREVENTIVE DETENTION The first opportunity to lock up a suspected criminal comes with the judge’s decision to grant or deny bail. Conservatives believe that people released on bail commit a large number of crimes. Thirty years ago, President Ronald Reagan’s Task Force on Victims of Crime declared in 1982, “A substantial proportion of the crimes committed in this country are committed by defendants who have been released on bail or on their own recognizance.”8 Preventive detention, a policy that allows judges to deny bail to high-risk criminal defendants, is designed to prevent crime through incapacitation. It originated as a conservative policy on bail, with most liberals denouncing it as both unconstitutional and ineffective in preventing serious crime. Over the past thirty years, however, preventive detention has gone from a controversial innovation to standard U.S. policy in every jurisdiction. Let’s see how this happened and how it affected crime rates. Bail is guaranteed by the Eighth Amendment to the U.S. Constitution, and it was originally designed to ensure the defendant’s appearance at trial. What most people do not realize, however, is that the Eighth Amendment does not Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 163 guarantee an absolute right to release on bail, but only that “excessive bail” may not be imposed. Traditionally, it meant that all criminal defendants were eligible for release on bail, with the exception of persons accused of capital crimes, or those crimes punishable by the death penalty.9 In practice, a system of money bail developed, which led to injustice for the poor defendants who could not raise bail. Critics labeled U.S. jails the “new poorhouses.” Wealthy organized crime figures easily raised large bail amounts, whereas poor people stayed in jail.10 Law professor Caleb Foote’s pioneering studies of bail in the 1950s found that defendants not released on bail were more likely to be convicted and imprisoned, thereby compounding the injustice of forcing them to remain in jail before their court date.11 In addition, the money bail system contributed to jail overcrowding, imposing unnecessary costs on counties. The civil rights movement focused attention on the plight of the poor in jail, and the result was a bail reform movement and led to the historic 1966 federal Bail Reform Act. The law created a presumption of release and spurred the development of release on recognizance and 10 percent bail plans, which allowed poor or working poor people to obtain their release. Each of the fifty states followed the federal example with their own bail reform laws. The impact of these laws was dramatic. The percentage of people in jail who were being held for trial dropped from 52 percent in 1967 to 33 percent in 1971 and then to 28.2 percent in 2002.12 The change represented a significant victory for social justice. Bail reform, however, coincided with the great crime increase in the mid- to late-1960s. Between 1963 and 1973, the robbery rate tripled, and the burglary rate went up two-and-a-half times. Conservatives saw a causal relationship between the two developments (just as they did with the Supreme Court decisions on the police, as we saw in Chapter 5), and blamed the new bail system for the growing crime problem.13 Their response was to propose the policy of preventive detention, which would allow judges to deny bail to defendants they regarded as a danger to the community. The initial demand for preventive detention focused on Washington, DC, because of rising crime rates in the city and the fact that Congress, which governed the city, could act on the issue. In 1970, Congress passed a preventive detention law for the District of Columbia, and the law offered the first test of how preventive detention might work. It allowed a judge to hold without bail for sixty days a defendant charged with a crime of violence or a dangerous crime. Several procedures were designed to protect defendants’ rights. A formal hearing was required to determine that substantial probability of guilt existed and that no other release procedure could guarantee public safety. The defendant must have been convicted of a crime in the preceding ten years; been a narcotics addict; or been on pretrial release, probation, or parole. Finally, if the trial was not held within sixty days, the defendant had a right to release on bail.14 Something funny happened in Washington, however. The law was hardly ever used. (As we will see later in this chapter, the same thing happened in most jurisdictions with three-strikes laws.) Judges detained few defendants without bail. A study by Georgetown University and the Vera Institute found that in the first six months, prosecutors filed detention motions against only twenty of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 164 CHAPTER 7 six thousand felony defendants (or less than one-third of 1 percent!). These motions resulted in nine formal hearings and eight actual detentions. Another two defendants were detained through judicial initiative. Thus, only ten defendants were detained in six months.15 Moreover, five of the ten detentions were reversed on appeal or reconsideration. Another was dismissed when the grand jury refused to indict the suspect. Thus, a grand total of four people were fully detained during the entire ten-month period. What happened? The answer reveals how the courtroom work group can adapt to a law it does not like. Federal prosecutors in the District of Columbia had full discretion to use or not use the law, and they had some good reasons not to. They could easily detain a defendant simply by setting a high bail that he or she could not meet. Because most robbers are poor, unemployed, or marginally employed, setting a higher bail amount than a defendant can afford is easy to do. This is the courtroom work group’s traditional method of covertly undermining the nominal right to bail. In effect, it says, “Sure you have a right to bail—how much can’t you afford?” And remember from our discussion of the courtroom work group in Chapter 3 that disagreements rarely erupt over bail.16 In short, the DC preventive was effectively nullified. The political mood of the country quickly changed, however, and beginning in the mid-1970s public attitudes about locking up allegedly dangerous offenders affected courtroom work groups across the country, including Washington, DC. By the 1980s, every state had enacted some form of preventive detention law. Congress finally embraced it for federal cases with the 1984 Bail Reform Act, which allows federal judges to detain a defendant without bail if “no condition or combination of conditions … will reasonably assure … the safety of any other person and the community.” Federal judges used it extensively, reflecting the “get tough” mood of the country. The number of defendants detained by federal judges increased from 2,733 in the first six months of 1987 (before the Supreme Court upheld the law in United States v. Salerno) to 4,470 in the last six months of 1988.17 The war on drugs—and the shift in public attitudes that drove it— accounted for much of this increase: More people were arrested for drug offenses, and prosecutors requested detention for drug defendants far more often than for defendants of other crimes. Between 70 and 75 percent of the prosecutors’ requests for detention were granted.18 The percentage of all federal defendants detained before trial increased from 24 to 34 percent by 1996. In truth, the major change was a shift in the method of detention. Before the 1984 law, virtually all of the detained defendants remained in jail because they could not raise bail. After the law went into effect, about one third of those detained could not raise bail; the other two-thirds were held because of the law.19 In short, the 1984 law gave judges legal authority to do openly what they had previously done covertly by simply setting a high bail amount. At the state level, meanwhile, a steadily rising percentage of defendants remained in jail before trial. By 2009, 38 percent of defendants in large urban counties remained in jail before trial, an increase over the 33 percent in 1971. These individuals form part of the 2.2 million people who are counted as part of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 165 LOCK ’EM UP the national incarcerated population. We might note that the seriousness of the current offense and prior record, which we discussed in Chapters 2 and 3, has a significant influence on bail decisions. Among robbery defendants, 56 percent were held before trial, compared with 32 percent for larceny. Meanwhile, only 25 percent of those with no prior convictions were held, compared with 42 percent of those with two to four prior convictions, and 53 percent of those with between five and nine.20 We need to pause here to reflect on the significance of the dramatic shift in bail policy from the 1960s to the present. The 1970 Washington, DC preventive detention law was effectively nullified by the courtroom work group, but in later years courtroom work groups across the country chose to implement similar laws. The relevant point is that although courtroom work groups have enormous power to shape the day-to-day administration of justice, they are not completely autonomous and insulated from outside influences. On important issues of great public concern—the war on crime and drugs, for example—they respond to and reflect the dominant attitudes in society. Crime on Bail: Myths and Reality For our purposes, the question is whether preventive detention prevents crime. We can examine the question by looking at the data on how much crime defendants commit while released on bail. Let’s take a look at the data. A defendant released on bail can “fail” in one of two ways: either by committing a crime or by failing to appear (FTA) at a scheduled court hearing. Let’s first look at crime on bail in Table 7.1. In 2006 (the most recent national data available), 33 percent of felony defendants in large urban counties committed some misconduct. More than half (18 percent) failed to appear at court, and another 18 percent were rearrested for a crime. (The figures add up to more than 33 percent because some defendants committed two violations.) Only 11 percent were rearrested for a felony, however, and this figure indicates that the claim that people out on bail are responsible for much of our crime problem is not based in reality. The felony rearrest rates in 2006 varied according to their current arrest T A B L E 7.1 Pretrial misconduct by released felony defendants, 2009 All F elony D efendants Murder Not rearrested (%) Felony arrest (%) Misdemeanor arrest (%) 84 8 7 100 0 0 R ape 86 3 8 R obbery 76 11 11 Burglary 78 12 7 Drug trafficking 82 10 8 SOUR CE: Bureau of Justice Statistics, Felony Defendants in L arge Urban Counties, 2009 (Washington, DC: Department of Justice), Table 19. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 166 CHAPTER 7 charge. Persons charged with a violent crime were less likely to be arrested (9 percent) than either property crimes (11 percent) or drug offenses (13 percent) Given the public fear of sexual predators being set free, it is interesting to note that rape defendants on bail had the lowest felony rearrest rate (4 percent) among all crimes with the exception of murder (0 percent).21 With respect to FTA, moreover, most are not intentional. Defendants forget their court date or are confused about the process (remember, felony defendants are not known for their self-discipline). Most FTAs, in fact, are located and eventually appear in court. The ones we should be concerned about are the defendants who flee and become fugitives from justice.22 In short, the evidence does not support the conclusion that hordes of offenders out on bail are a major part of the crime problem in the United States. The idea that offenders are is largely a result of the occasional celebrated case in which someone released on bail does commit a horrific crime. Keeping more pretrial defendants in jail will not reduce serious crime. The Prediction Problem Revisited Although it is true, then, that the felony rearrest rate for persons on bail is fairly low, it is also true that some people on bail do commit felonies. It would be good if we could prevent those crimes by keeping the defendants in jail before trial. This brings us back to the prediction problem we discussed in Chapter 4. Lowering the rate of crime on bail requires that judges make better predictions about which defendants are most likely to commit another crime. The point of preventive detention is to detain them and only them. Overpredicting dangerousness will result in many people needlessly being detained in jail. But as we learned in Chapter 4, despite decades of research criminologists have yet to come up with good methods of predicting criminal behavior. The data in Table 7.1 reinforce the point that we have limited capacity to predict who is likely to commit crime. Persons charged with a violent crime, who the public really worries about, are less likely to commit another felony than persons charged with property or drug crimes, and rape defendants have the lowest felony rearrest rate. Many people believe that testing arrestees for drug use would be a reliable method of predicting whether a defendant is likely to commit a crime on bail. The assumption is that the combination of an arrest and illegal drug use indicates a lifestyle that includes crime. A National Institute of Justice study of pretrial misconduct in six cities, however, found that “except for heroin use, pretrial drug testing did not appear to help predict rearrests.” In fact, even those defendants who tested positive for more than one drug were not more likely to be rearrested than other defendants. Heroin use did predict rearrest and was a particularly strong predictor in three of the six cities. Cocaine use was a predictor of only FTAs. In the end, the best predictor of rearrest was the number of prior arrests.23 In short, testing for drug involvement does not help judges improve their decisions related to pretrial misconduct. And in fact, according to the ADAM II program which tests arrestees for drugs, the Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 167 majority of arrestees in most cities test positive for use of at least one drug: 86 percent of arrested males in Chicago and 62 percent of arrested males in Atlanta in 2012.24 A NATURAL EXPERIMENT A 1984 Supreme Court case on preventive detention for juveniles produced a natural experiment in predicting dangerousness. A natural experiment occurs when a change in policy or practice creates comparable experimental and treatment groups. A New York law had authorized preventive detention of juveniles who posed a “serious risk” of committing another crime if released. In 1981, however, a federal judge declared the law unconstitutional and enjoined its operation. New York appealed, and in 1984 (Schall v. Martin) the U.S. Supreme Court ruled that preventive detention for juveniles was unconstitutional.25 The district court decision had a quirk, however; the judge enjoined the commissioner of corrections from detaining allegedly dangerous juveniles, but judges were not similarly enjoined. Thus, judges continued to order some juveniles detained. These kids were turned over to the commissioner of corrections, who was forced to release them. This arrangement produced a natural experiment that allowed an examination of how accurate the judges were in predicting the dangerousness of a small group of juvenile defendants who were ordered detained but promptly released.26 Jeffrey Fagan and Martin Guggenheim identified sixty-nine at-risk juveniles who were ordered detained by judges but then released. They were compared with a control group of sixty-four with similar backgrounds but who were not ordered detained. After ninety days, 40 percent of the at-risk group had been rearrested, compared with only 15.6 percent of the control group. In short, the judges were reasonably accurate in identifying juveniles who posed a higher risk than comparable offenders. This was achieved, however, at the cost of a high rate of false-positives: 60 percent of the at-risk group were not rearrested. Moreover, only 19 percent were rearrested for a violent crime, meaning that the judges were not successful in predicting violent behavior. Fagan and Guggenheim argue, as others have, that the goal of policy reform is not to achieve perfection but to improve on current practice, to make some marginal improvement in predictive accuracy. If you used an actuarial method for making preventive detention decisions based on objective criteria and applied it to all the juveniles in their study, you would detain members of the control group. Remember that they were comparable to an at-risk group in terms of their background characteristics (about 90 percent of both groups had some prior criminal record, for example). Yet only 15.6 percent of the control group were arrested within ninety days (think of them as falsenegatives). Applying the same objective prediction formula to the control group would result in detaining the 84.4 percent of the control group who were not rearrested. This outcome translates into five false-positives for every true positive. (Recall from Chapter 4 that the Wenk study produced eight false-positives for every true positive.) Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 168 CHAPTER 7 Fagan and Guggenheim concluded that “the accuracy of prediction of dangerousness during the pretrial period remains questionable.” And because of the costs and limited marginal gains likely to be achieved, “preventive detention appears to be unjustified.”27 As we will see shortly, the Rand Corporation reached a similar conclusion regarding the prediction of high-rate criminal offenders. A Comment on Preventive Detention and Mass Incarceration Preventive detention has contributed to mass incarceration. In mid-2012, 735,565 people were in jail in the United States on an average day. About 411,000, or 56 percent, of them had not yet been convicted of any crime. In 1971, by comparison, only 33 percent of defendants were held before trial. If the bail practices of that year had been in effect in 2012, there would have been about 171,000 fewer people in jail, or about 8 percent of the total incarcerated population.28 The evidence on crime committed by people released on bail leads us to the following proposition: 15 PROPOSITION Preventive detention will not reduce serious crime. Speedy Trial: A Better Way If we want to prevent both crime on bail and failure to appeal, speedy trial is a much better approach. Among the 2006 defendants who were rearrested before trial (or what we should really call the case disposition because as we have noted many times already, only 5 percent of felony cases actually go to a real courtroom trial), 7 percent were rearrested in the first week, 26 percent within a month, and 49 percent after three months.29 Disposing of all cases within five to six weeks would prevent about half of the crime committed by persons out on bail (this assumes that most will be convicted and sentenced to some confinement). Speedy disposition would also reduce the FTA rate and preserve two constitutional rights: the right to bail and the right to a speedy trial. Actually, we have tried to require speedy trials. Congress and many states have enacted speedy-trial laws. Yet, as Malcolm Feeley found in his research on court reform, these laws were routinely evaded by the courtroom work group.30 This is not a matter of prosecutors and defense attorneys being lazy or irresponsible. Attorneys on both sides have good reasons for delaying trial. They need time to prepare their case, to interview witnesses, and examine the evidence, and so on. Thus, we face another dilemma: how to achieve a desired reform in the face of resistance by the courtroom work group. One possibility might be to expedite trials for only those offenders who are high risks. This Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 169 policy would preserve their constitutional rights to both bail and a speedy trial as well as protecting the public. INCAPACITATION AS A CRIME POLICY The theory underlying the U.S. lock ’em up policy is incapacitation, which holds that crime can be reduced by imprisoning serious offenders. The logic is simple: if a repeat offender is in prison, he or she won’t be able to commit more crimes. It follows that if we keep them in prison twice as long (a ten-year sentence rather than a five-year one), we will prevent twice as many crimes. As a sentencing philosophy, incapacitation seeks only to detain; it does not try to rehabilitate offenders, nor does it seek to deter them.31 There is an important distinction between two kinds of incapacitation. Selective incapacitation is designed to lock up only the few high-rate offenders, or career criminals. Like preventive detention, it builds on Wolfgang’s career criminal research, which we discussed in Chapter 4. Gross incapacitation, on the other hand, involves locking up large numbers of offenders regardless of their criminal histories. That, in fact, is exactly what we have been doing for the last forty years. Selective Incapacitation: The Rand Formula Selective incapacitation was one of the hot ideas in criminal justice in the 1970s and 1980s. James Q. Wilson endorsed it in his influential 1975 book, Thinking about Crime, claiming that serious crime could be reduced by one-third if each person convicted of a serious crime received a mandatory three-year prison sentence. He cited a study claiming that selective incapacitation could reduce crime by an amazing 80 percent.32 These extravagant claims generated much excitement, and some criminologists set out to develop sophisticated selective incapacitation formulas. The lure of selective incapacitation was that it would be scientifically precise. We would imprison only the most serious repeat offenders, and thereby not increase the prison population, with its attendant costs, while reducing crime. In fact, some argued that we could actually lower the prison population and save money by no longer imprisoning offenders who were a low risk of reoffending. As we now know, it did not work out that way. Politics trumped criminology, and we embarked on a decades-long policy of gross incapacitation, which many now call mass incarceration. Despite the failure of selective incapacitation to become national policy, it is worth examining the idea in detail because the experience contains valuable lessons about how sentencing policies work in practice, and the limits of even the most sophisticated criminological ideas. The best statement of the idea was a 1982 report, Selective Incapacitation, by Peter Greenwood and associates at the Rand Corporation.33 It estimated that a fine-tuned sentencing policy could Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 170 CHAPTER 7 reduce robbery by 15 percent while also reducing prison populations by 5 percent. We already discussed this report in Chapter 4, but let’s take another look at it in terms of sentencing policy. The Rand sentencing proposal was based on the Rand Inmate Survey (RIS), which involved interviews with 2,190 prison and jail inmates in California, Texas, and Michigan. The interviews were used to develop estimates of the average annual offending rates for offenders,34 which in turn used to estimate how much crime would be reduced by locking up particular types of offenders. The estimated annual offending rates were the crucial linchpin of selective incapacitation, and they proved to be the subject of considerable controversy among criminologists, and ultimately the idea’s fatal flaw. Using the wrong estimate, after all, will have a huge impact. If we estimate that the average career criminal commits more than a hundred crimes a year, incapacitation will achieve a substantial crime reduction. But if the average offending rate is only about five crimes a year, the payoff will be relatively small.35 Rand developed a prediction instrument by correlating inmates’ background characteristics with their self-reported criminal behavior. The result is a sevenpoint scale of factors associated with high rates of criminal behavior (see Table 4.3, Chapter 4). Offenders were then classified as low risk (one point), medium risk (two to three points), and high risk (four to seven points). Rand then correlated inmates’ predicted offense category with their actual self-reported level of criminal activity (see Table 4.4). The prediction scale was correct 51 percent of the time. The 51 percent figure is calculated by adding the predicted low rate and actual low rate (14 percent), the predicted medium risk and actual medium risk (22 percent), and the predicted high risk and actual high risk (15 percent). Thus, the prediction device was grossly wrong 7 percent of the time (the 4 percent who were predicted high but actually low, and the 3 percent predicted low but actually high). In the remaining 42 percent of the cases, the prediction scale was only moderately accurate.36 In assessing the Rand estimates, it is important to remember that our goal is to improve on current practice. When the Rand experts correlated their predictions with inmates’ actual sentences, they found that the judges imposed a “correct” sentence (that is, a long sentence for a predicted high-rate offender) 42 percent of the time. In short, Rand’s proposed sentencing formula would be only a slight improvement over what judges are currently doing, and what you would get from flipping a coin.37 Why such a small improvement? The Rand formula has several problems. Most important is our old friend the prediction problem. As other studies have found, prior criminal records and other indicators such as drug use are relatively weak predictors of future behavior. We consistently get significant numbers of false-positives (people erroneously predicted to be serious repeat offenders) and false-negatives (repeat offenders who were not identified by the formula). In fact, in the face of widespread criticism, Rand reexamined its proposal five years later and admitted that its previous estimates were “overly optimistic.” And in a major concession that undermined the entire selective incapacitation enterprise, it conceded that “there are no reliable methods for either Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 171 measuring or predicting future offense rates.” In short, there is no reliable way to achieve significant crime reduction by using predictions of offenders’ future criminal behavior.38 A major problem with the Rand approach is that the estimated offending rates are averages that, like all averages, are inflated by the extremely high rates for the worst offenders. The Rand report itself admitted that “most offenders reported fairly low rates of crime.” The median robbery rate was only five per year, but the worst 10 percent averaged eighty-seven per year!39 Incapacitating a member of the 90th percentile would in fact produce a significant crime reduction, but there would be only limited payoff for locking up any of the other offenders with low annual offending rates. The most shocking aspect of the Rand prediction scale is the use of employment history as a criterion for sentencing (see Table 4.3 in Chapter 4). An offender acquires one point for having been unemployed for more than half of the two preceding years. In their formula it carries the same weight as a prior conviction for the same offense. Under the formula, an additional point might reclassify the offender from a low risk to a medium risk, and thus it would mean the difference between jail and prison. When you take out any one of the seven factors in the prediction scale, the entire scheme begins to collapse. With only six factors, the success rate will fall below the 51 percent that Rand estimates. You would then be doing no better than judges currently do, using a combination of presentence investigations and pure hunch. It is outrageous that imprisonment might be contingent on unemployment. The Rand formula would take us back more than two hundred years to the days of imprisonment for debt. Even if such a policy were to become practice somewhere, it would immediately be challenged in court. The fact is that unemployment is highly correlated with criminal activity, but that correlation is not something we should translate into crime policy. An alternative response to the problem would be not to punish people for being unemployed but to provide greater employment opportunities. Finally, as our sentencing history over the past four decades clearly indicates, the Rand selective incapacitation proposal faced a major political obstacle. The idea of not imprisoning low-risk and medium-risk offenders is exactly what corrections experts advocated in the 1960s. The 1967 President’s Crime Commission argued that we locked up too many people, for prison terms that were unnecessarily long, and recommended greater use of probation. In 1980 the American Bar Association’s Standards for Criminal Justice stated that “in many instances prison sentences which are now authorized, and sometimes required, are significantly higher than are needed in a vast majority of cases.”40 But because of the get-tough-on-crime attitude that swept the nation, these recommendations were ignored in favor of a policy of gross incapacitation, or what has now been labeled mass incarceration. If selective incapacitation seems too good to be true, that is because it is. The evidence indicates that because of the prediction problem and the political obstacles related to adopting the lower sentences, we have to conclude that selective incapacitation is not a realistic crime policy. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 172 CHAPTER 7 Gross Incapacitation: Zedlewski’s New Math One advocate of selective incapacitation used the Rand data to produce a truly astonishing estimate of the dollar savings that could be achieved. Edwin J. Zedlewski’s report Making Confinement Decisions. reached the startling conclusion that imprisonment actually saves money. Challenging the liberal conventional wisdom about the high cost of imprisonment, he calculated that for every dollar we spend imprisoning a criminal, we save seventeen dollars in total social costs. Although he focused on the dollar costs of crime, his formula has important implications for crime reduction.41 How did Zedlewski reach such an amazing conclusion? Let us take a close look at his figures. First, he estimated that in 1983 crime cost U.S society a total of about 100 billion. This included 33.8 billion for criminal justice system expenditures, 35 billion in victim losses (medical care, lost wages, property damage, etc.), 26.1 billion for private security expenses, and so forth. The NCVS, meanwhile, estimated that 42.5 million crimes were committed in 1983. Thus, Zedlewski calculated that each felony costs society 2,300 ( 100 billion total crime costs divided by 42.5 million crimes). Using the Rand RIS data, Zedlewski then estimated that each criminal commits an average of 187 crimes a year. Locking up each offender for one year, therefore, “saves” society 430,000 per year ( 2,300 multiplied by 187 equals 430,000). After you subtract the cost of imprisonment ( 25,000 per year at that time), you get a net social “savings” of 405,000 a year for each offender imprisoned (or about seventeen times the 25,000 cost of incarceration). If this seems too good to be true, it is. Franklin Zimring and Gordon Hawkins demolished the key assumptions underlying Zedlewski’s computations.42 The most serious problem is the estimate of 187 crimes a year. They point out that Zedlewski did not mention the great disagreement among career-criminal specialists over annual offending rates. Many put the figure at about eighteen crimes a year, and some use an even lower estimate. If the average is only eighteen, then locking up one criminal saves only 43,000 a year, according to Zedlewski’s formula. It was professionally dishonest of Zedlewski not to mention the debate over annual offending rates and to use one of the highest possible estimates. As we mentioned in Chapter 1, faith often triumphs over facts in discussions of crime policy. Here we have a case of someone deliberately misrepresenting the facts to make a point. Zedlewski also did not take into account the problem of diminishing returns. Assuming that judges systematically take into account prior record, as we lock up more people we quickly skim off the really high rate offenders and begin incarcerating more of the less serious offenders. Because they average far fewer crimes per year (perhaps as few as five, according to the RIS), we get progressively lower returns in crime reduction and dollar savings for each offender sentenced to prison. The estimate of the dollar savings is also flawed. A reduction in crime does not produce a direct reduction in criminal justice system costs. If the crime rate Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 173 goes down by 25 percent, no city is going to cut police department budgets by 25 percent. Because about 90 percent of all department budgets involve personnel costs, this would really mean laying off one-quarter of all the officers. In fact, police departments have not reduced their size as a result of the Great American Crime Drop that began in the early 1990s. Police officers do a lot more than fight crime. About 70 to 80 percent of patrol work involves order maintenance and service activities.43 These are important tasks that people want the police to perform. The same is true for other criminal justice system costs. If crime drops by 25 percent, the cost of running the criminal courts will not automatically decline by the same percentage. Finally, Zimring and Hawkins demonstrated that Zedlweski’s own formula leads to utterly absurd estimates of crime reduction. They point out that between 1977 and 1987 the prison population increased by 230,000. If each criminal did an average of 187 crimes a year, that should have “prevented” 43 million crimes (230,000 multiplied by 187 equals 43 million). Yet this figure is a little more than the number of crimes the NCVS reported as occurring in 1987. In short, Zedlewski’s formula predicted the complete elimination of all crime by 1986, which you might have noticed did not occur. Of course that did not happen. First, criminals do not average 187 crimes a year, as Zedlewski estimated (a small percentage of them do, but most average only a few crimes). And second, he did not consider the replacement factor: As some drug dealers are arrested, others take their place. You can do your own update of Zimring and Hawkins’s critique with more recent data. Compute the increase in the prison population from the mid-1980s to the present, and using the estimated annual rate of 187 crimes per offender, estimate the amount of expected crime reduction. In fact, as Frank Zimring points out in his sober discussion of the Great American Crime Decline in the 1990s, when you look at imprisonment rates and crime rates for the entire period beginning with the early 1970s, you find that crime rates fluctuated like a roller coaster (up in the late 1980s, down in the 1990s), with no clear correlation between the two.44 Incapacitation: A Sober Estimate Having demolished Zedlewski’s fantastic estimates, Zimring and Hawkins undertook their own study of incapacitation, examining incarceration and crime trends in California in the 1980s. Using a variety of sophisticated models, they concluded that the incarceration of each offender in California prevented 3.5 crimes per year. We should note that this is one-fiftieth of the 187 figure used by Zedlewski and is even lower than the estimates of other experts on career criminals. The huge increase in the state prison population during the period they studied reduced the crime rate by 15 percent by their estimate.45 As Zimring and Hawkins pursued their analysis, however, some problems surfaced. For burglary, juvenile arrests declined significantly, but adult arrests increased. This is “exactly the opposite” of what the incapacitation model would predict because most of those incarcerated were adults. A similar pattern Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 174 CHAPTER 7 Illustration by Frank Irwin, © Wadsworth, Cengage Learning. appeared with larceny and rape, but not robbery. Consequently, Zimring and Hawkins concluded that it was not absolutely clear that incapacitation was the “primary cause” of the drop in crime.46 Zimring and Hawkins also did a cross-state comparison of changes in incarceration rates and crime rates in seventeen states during the 1980s. California stood at one extreme, with the greatest increase in imprisonment and the greatest reduction in crime. Yet Georgia had a high increase in imprisonment and one of the highest rises in crime. Minnesota, meanwhile, had almost no increase in incarceration and virtually no change in the crime rate. In short, Zimring and Hawkins could detect “no clear patterned relationship” across states between incarceration rates and crime rates.47 Serious crime declined in the 1990s, but we should be skeptical of claims that incapacitation was the sole or even the primary cause. Remember that we have been on an imprisonment binge for forty years. Imagine going to a doctor, getting a prescription, taking the medicine (two pills a day), but not getting any better. You go back to the doctor, who increases the dosage (four pills a day). But you still do not get any better. The doctor then raises the dosage again (six a day). You repeat this process for twenty years. Finally, in about the nineteenth year, you begin to get better. Was it the medicine? Probably not. You cannot claim success for a prescription (pills/prisons) that failed for nineteen years and then suddenly appeared to work in the twentieth year. In his more recent book on The Great American Crime Decline, Zimring points out that the greatest proportional increase in imprisonment occurred in the five years after 1982, but that was a period of increasing crime. And recall that unlike deterrence, where it may take some time for the message to take effect, incapacitation operates Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 175 immediately: the robber is in jail and then prison beginning with his arrest. Finally, as we discussed in Chapter 1, Zimring points out that Canada enjoyed a reduction in crime almost identical to the United States and the imprisonment rate actually declined by 6 percent. Clearly, incapacitation was not a factor in Canada’s success.48 In the end, there is no convincing evidence that incapacitation is an effective policy for reducing crime. The idea of selective incapacitation failed for two reasons. First, there was never any political support for imprisoning only a select number of offenders, and second the idea of being able to identify only dangerous and repeat offenders proved to be a delusion. Although it is true that crime rates began to drop in the early 1990s, the drive toward mass incarceration was already almost twenty years old at that point and had had no evident impact. Consequently, the evidence leads us to the following proposition: 16 PROPOSITION Incapacitation, whether selective or gross, is not a realistic strategy for reducing serious crime. Selective Incapacitation Reborn Many crime proposals never die; they just reappear some years later with a new name, some new evidence, and the same old extravagant claims. So it is with selective incapacitation. The Journal of Criminology and Public Policy in 2011 published a lengthy symposium on a proposal to both reduce the prison population and reduce crime. We discussed this in Chapter 5, with regard to the police and crime, but it deserves to be examined briefly in this chapter. Steven N. Durlauf and Daniel S. Nagin present a proposal that involves reducing the prison population and taking the dollar savings to invest in innovative police programs that have shown effectiveness in reducing crime.49 There are several problems with their proposal, however. First, the innovative police programs they cite have proven to be effective, but it is not clear that large numbers of police departments are capable of undertaking such sophisticated programs. Second, as we mentioned in Chapter 5, there is a long history of police innovations fading away after the initial enthusiasm for them wears off. With respect to the prison population side of their proposal, the evidence of the last forty years indicates no political support for significantly putting fewer people in prison. To be sure, there are signs of change, but the national prison population has essentially leveled off, without any significant reduction.50 Second, Durlauf and Nagin skip lightly over the problems in designing a selective imprisonment policy, which we have discussed. They argue that imprisonment should be “reserved for repeat offenders who also commit serious crimes involving violence or large property losses.” (Notably, their bibliography does not include Selective Incapacitation.) Our argument is that the tools for a scientifically valid predictive formula do not exist, and considering the failure of criminologists to develop such tools over many decades, are unlikely to be developed now.51 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 176 CHAPTER 7 The Durlauf and Nagin proposal is a bold and challenging one. No doubt it will be examined more closely and debated in the immediate future. We need to keep an eye on it. For the moment, however, it looks too much like the old selective incapacitation idea, without addressing the political and the policy problems that afflicted it. MANDATORY SENTENCING October 7, 2009, was a historic day in New York State because revisions to the state’s Rockefeller Drug Law took effect. The 1973 Rockefeller Drug Law became the model for harsh sentencing laws across the country over the next forty years, putting a special emphasis on mandatory prison sentences as a method of achieving incapacitation. A 1996 Justice Department report on sentencing policies found that all fifty states had some form of mandatory sentencing by 1994. The various laws designed to implement mandatory sentencing are many. Most states have mandatory provision related to specific offenses. Forty-one states have it for repeat offenders, thirty-one for certain drunk driving offenses, thirty-two for certain drug offenses, and forty-two for some weapons offenses.52 In many cases, mandatory imprisonment and a mandatory minimum prison sentence are combined in the same statute. Since 1971, forty-three states enacted life-without-parole statues, resulting in a significant increase in prisoners serving life sentences.53 Twenty-eight adopted truthin-sentencing laws that require prisoners to serve 85 percent of their sentences, and another three have a 100 percent requirement.54 Meanwhile, by 1996, about twenty-two states had adopted three-strikes laws, the crudest and most extreme form of mandatory sentencing, which we will examine in detail shortly.55 Finally, many states passed laws limiting the application of goodtime provisions to prison sentences, thereby delaying the possible early release of many prisoners.56 Two factors have driven the popularity of mandatory sentencing laws. The first is the punitive attitude that swept the U.S. public beginning in the 1970s and the consequent support for greater use of imprisonment. The second is the celebrated case syndrome we discussed in Chapter 2, which regularly provides the public with an example of a criminal who commits another horrific crime. The sudden popularity of three-strikes laws in the early 1990s was driven in large part by the highly publicized case of Polly Klaas in California. Twelve-year-old Polly was brutally murdered by Richard Allen Davis, who was out on parole and had been twice convicted of kidnapping. The understandable reaction of many Americans was to ask, why wasn’t he in prison? If he had been, Polly would be alive today. Similar cases occur regularly, all across the country. But as we argued in Chapter 2, they are highly publicized precisely because they are so unusual, and for that reason are not a sound basis for developing sound and effective crime policies. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 177 Because it had such a profound influence on U.S. sentencing policy, and mandatory sentencing for drug offenses in particular, the New York Rockefeller Drug Law deserves a close look. “THE NATION’S TOUGHEST DRUG LAW” The 1973 New York Rockefeller Drug Law was immediately labeled the “nation’s toughest drug law” because of its harsh provisions.57 The law contained three major provisions designed to incapacitate drug offenders and deter future drug use: mandatory and long prison terms for heroin dealers, restrictions on plea bargaining for heroin dealers, and mandatory prison terms for certain categories of repeat offenders. The law established three categories of heroin dealers. Class A-I offenders (major dealers, defined as people who either sold one ounce of heroin or possessed two ounces) would serve minimum prison terms of fifteen or twentyfive years and a maximum of life imprisonment. Class A-II (middle-level dealers, defined as those who sold one-eighth of an ounce of heroin or possessed one to two ounces) would serve prison terms of at least six to eight and one-third years and a maximum of life. Class A-III offenders (minor street dealers, defined as anyone who sold less than one-eighth of an ounce of heroin or possessed up to one ounce) would serve a minimum prison term of at least one to eight and one-third years and a maximum term of life. In short, anyone caught selling heroin would definitely go to prison and would face the possibility of life imprisonment. The prescribed prison terms were considered extremely harsh at the time, but they are not unusual today. The major change is that state laws and the federal sentencing guidelines have extended harsh mandatory minimum sentences to other drugs, the use of firearms, sex offenses, and repeat offenses for other crimes. The law attempted to prevent evasion of the law through plea bargaining. (We will examine that issue in Chapter 8.) Anyone arrested for either an class A-I or A-II offense could plead guilty to a class A-III charge, but people originally charged with a class A-III offense could not plead to anything lower. The result was a floor that meant at least some prison time and a potential life term. The law also included a habitual-criminal provision, imposing mandatory prison terms on anyone with a prior felony conviction. To cope with the anticipated increase in the criminal courts’ workload as a result of the law, New York added forty-nine new judges, thirty-one of them in New York City. In practice, the law provided yet another example of the power of the courtroom work group to undermine the intent of a new law that sought to change established practices. (Although as we shall argue shortly, that was a short-term effect that eventually changed.) An early evaluation of the law concluded that “the threat embodied in the words of the law proved to have teeth for relatively few offenders.”58 As the law went into effect, an enormous amount of slippage occurred between arrest and conviction. Between 1972 and 1976, the Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 178 CHAPTER 7 percentage of drug arrests leading to indictment declined from 39 to 25 percent. Meanwhile, the percentage of indictments resulting in a conviction fell from 86 to 80 percent. Thus, the overall percentage of arrests leading to conviction fell from 33.5 to 20 percent. For those who were convicted, however, the rate of incarceration went up from 33 to 55 percent, but this still meant that about half the defendants were evading the supposedly “mandatory” sentencing provisions. In this respect, little changed. The percentage of people arrested for sale of heroin who went to prison was 11 percent in 1972–1973, and it was 11 percent in 1976. The big change involved the longer prison terms. The percentage of those who were convicted receiving a sentence of three years or longer rose from 3 percent of all those convicted to 22 percent. This was the most important effect of the law, and we will look at it more closely in a moment. The slippage that occurred in the application of the Rockefeller Drug Law is consistent with the long history of mandatory sentencing laws. A 1997 National Institute of Justice review of mandatory sentencing found that “arrest rates, indictments, plea bargains, and convictions decline after mandatory sentencing laws go into effect,” and “early dismissals, early diversions, trial rates and sentencing delays increase.” These developments help many defendants evade mandatory sentences, whereas others are caught by them. The net result, according to the NIJ report is that “The net probability that offenders will be imprisoned is unaffected.”59 Although this was the traditional courtroom work group response to mandatory sentencing laws, we will argue shortly that the data on the soaring U.S. prison population clearly indicates that over time and across the country mandatory sentencing provisions did work as intended and sent hundreds of thousands of people to prison. Finally, and most important from our perspective, the Rockefeller Drug Laws had no significant effect on crime or drug use. An evaluation found that heroin use in New York City was as widespread in 1976 as it had been in 1973. Serious property crime, the kind generally associated with heroin users, increased 15 percent between 1973 and 1975, but neighboring states had similar increases. Even more important, when cocaine and crack cocaine in particular replaced heroin as the most serious drug, the law did not prevent an epidemic from occurring in the late 1980s. New York City was particularly hard hit by the crack epidemic.60 Over the years, the Rockefeller Drug Law led to a dramatic increase in the number of people sent to prison on drug charges. Critics, however, charge that in another example of the bait-and-switch syndrome, it mainly hit minor targets rather than major ones. Many if not most prison sentences were disproportionate to the harm of the crime involved. Although supposedly directed toward drug “kingpins,” most of those people imprisoned under the law were convicted of low-level, nonviolent crimes, and many had no prior criminal records. The law eventually resulted in serious prison overcrowding, with all the associated costs. In 2009, the twelve thousand offenders then in prison under the law represented 21 percent of all state prisoners, at a cost of an estimated 525 million a year (at 45,000 per year per inmate in New York). Two-thirds had never been imprisoned before, and 80 percent had never been convicted of a violent felony. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 179 African Americans and Latinos represent 90 percent of those in prison under the law. And as we will argue in Chapter 14, this disproportionate impact has a devastating effect on families and communities.61 The 2009 reforms (which we should remember came thirty-six years after the law went into effect) reduced the penalties in several different ways. They eliminated mandatory sentencing for first-time Classes B, C, D, and E drugrelated felonies, and eliminated mandatory sentences for second-time classes C, D, and E drug-related felonies. In both cases, judges can sentence convicted offenders to probation, treatment alternatives, or prison. Prison is still mandatory for second-time Class B drug felonies if the defendant was convicted of or had pending a violent felony in the past ten years. Additionally, the reforms expanded drug treatment and alternatives to incarceration, with an appropriation of almost 71 million. Finally, it allowed resentencing for about 1,500 currently imprisoned offenders in certain categories. The new law did keep mandatory prison sentences for the most serious offenses: Classes A-I and A-II felonies.62 The 2009 reforms of the Rockefeller Drug Law had an immediate and dramatic impact. The New York Division of Criminal Justice Services reported that commitments to state prisons for drug offenses dropped 33 percent, from 5,190 in 2008 to 3,513 in 2011. And the largest declines occurred for African American and Hispanic offenders, dramatizing the racial dimensions of the war on drugs.63 The revision of the Rockefeller Drug Law in 2009 was a harbinger of an apparent shift in the national mood regarding imprisonment, as other states began to revise their laws. We will take a look at that development shortly. THE REAL IMPACT OF THE ROCKEFELLER DRUG LAW The real impact of the Rockefeller Drug Law was not its short-term impact on prosecution, imprisonment, crime, and drug usage in New York State, but its role as a model for harsh sentencing laws across the country over the next four decades. Every state enacted mandatory sentencing laws resulting harsher penalties for drug offenses and other serious, leading to our soaring prison population, and what critics have labeled a national policy of mass incarceration. Driving this process was a national mood insisting on more punitive sentencing that overwhelmed the traditional capacity of the courtroom work group to evade mandatory sentencing laws. It is difficult to track all of the changes affecting sentencing and time served by prisoners in all fifty states and the federal system over the past forty years. Figure 7.1 lists the major categories, and it is important to understand how many interacted with and reinforced each other. States’ mandatory minimum prison sentence laws, for example, were often reinforced by a truth-in-sentencing law that required prisoners to serve 85 percent of their sentence. Convenient perspectives on the various laws contributing to longer prison terms is offered by the Sentencing Project’s reports on recent sentencing reform Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 180 CHAPTER 7 efforts and the Pew Center for the States report on Time Served. These reports are important indicators of the change in the public mood about sentencing, and the resulting changes in state laws, but they also provide extremely valuable perspective on how we got where we are today in terms of mass incarceration. The Sentencing Project report The State of Sentencing 2012 identified a total of forty-one changes in policies in twenty-four states in the year 2012 alone. In 2011, twenty-nine states revised fifty-five sentencing policies. Seven states relaxed their mandatory minimum sentencing laws (and four did so in 2011); one state (Connecticut) abolished the death penalty; two states created or expanded procedures for modifying sentences after conviction; seven states expanded the application of good time or limited the use of probation or parole revocations to send offenders to prison; and three states modified their juvenile life-without-parole laws (we will discuss life without parole in a separate section). 64 Regarding mandatory minimum sentences, the most notable changes occurred when California voters in November 2012 modified the state’s threestrikes law, limiting its use only to cases where the third felony is a serious or violent crime. Kansas, meanwhile, modified its penalties for drug possession, eliminating presumptive prison sentences and allowing lesser sentences or drug treatment. Five states (Georgia, Hawaii, Missouri, Oklahoma, and Pennsylvania) adopted new laws under the Justice Reinvestment framework that prioritize alternatives to incarceration for persons convicted of certain nonviolent crimes and also expanding early release procedures. (The Justice Reinvestment concept is an important development we will discuss in Chapter 14.)65 With respect to probation and parole, Colorado created a new category of “achievement earned time” that advances parole eligibility; Louisiana restored parole eligibility for certain life sentences; an Oklahoma referendum authorized parole eligibility for nonviolent offenses (with 59 percent voting for it); and Pennsylvania expanded the sentencing options for parolees guilty of technical parole violations.66 In short, there has been a change in the public mood and the beginnings of a shift in public policy. Across the country, states are beginning to modify the laws that have built up over the past forty years and which are responsible for today’s enormous prison population. Most important, with regard to the purpose of this book, an increasing number of people and elected officials are accepting what most criminologists have been saying all along: that simply locking people up does not reduce crime. The results so far are modest in terms of the total prison population, and we will have to see if they represent the beginnings of a real change in U.S. policy toward locking people up. The Special Case of the Federal Mandatory Minimums The mandatory minimum sentences prescribed by the federal sentencing guidelines, particularly for drug offenses, are a special case and have been subjected to widespread criticisms. The severity of the federal sentencing guidelines is a direct result of the stated purpose of the guidelines. The 1984 Comprehensive Crime Control Act directed the development of guidelines that would further the basic purposes of punishment: “deterring crime, incapacitating the offender, providing Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 181 just punishment, and rehabilitating the offender.”67 In practice, the first three goals, deterrence, incapacitation, and punishment dominated the eventual sentencing guidelines. The federal guidelines contrast sharply with the stated purpose of the Minnesota sentencing guidelines, which were developed explicitly to limit the use of imprisonment: “Because state and local correctional facility capacity is finite, confinement should be imposed only for offenders who are convicted of more serious offenses or who have longer criminal histories. To ensure such usage of finite resources, sanctions used in sentencing convicted felons should be the least restrictive necessary to achieve the purposes of the sentence.” And the guidelines have achieved this purpose. For several decades, Minnesota has had the lowest or next to lowest incarceration rate among all the states.68 The harshest federal mandatory minimums involve drug offenses. The guidelines mandate a five-year prison sentence for a first offense conviction manufacture, distribution, or possession with intent to distribute twenty-eight grams of crack or one hundred marijuana plants. A second offense carries a mandatory ten-year sentence. They key phrase is the “possession with intent to distribute,” because the intent aspect is far more flexible in interpretation that an act of distribution. A first offense conviction for brandishing (but not firing) a firearm during a crime of violence or drug trafficking carries a mandatory seven-year sentence added to the sentence for the underlying crime (for example, the robbery or drug sale). In 2011, in response to a directive from Congress, the U.S. Sentencing Commission delivered a report on the impact of mandatory minimum sentences. (It was only the second such report in twenty years.) The report was highly critical of mandatory minimum sentences. The principal findings included that people serving a mandatory sentence represented 40 percent of all federal prisoners; the number of offenses carrying a mandatory minimum sentence had doubled, from 98 in 1991 to 195 in 2010; three-quarters (77.4 percent) of the convictions with a mandatory sentence involved drug trafficking; mandatory minimum sentences were applied inconsistently, with some prosecutors’ offices not applying them where they thought cases were “too harsh for low-level drug offenders;” a majority of federal judges thought mandatory sentences were “too high.” The report recommended reducing both the scope and the severity of existing mandatory minimum sentence requirements.69 One particularly troubling part of the Sentencing Commission report are the findings on disparities in applying the mandatory minimums. The purpose of all sentencing guideline systems at both the federal and state levels, after all, is to ensure consistency in sentencing. The fact that federal prosecutors find ways to evade mandatory requirements and reintroduce disparities is extremely troubling. We will discuss this issue in more detail in Chapter 8 when we cover plea bargaining. The Growth of Life without Parole Another form of mandatory sentencing has been the growth of life sentences, many of which are specifically designated life without parole (LWOP). By Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 182 CHAPTER 7 2012, one in nine U.S. prisoners was serving a life term (up from one in eleven in 2008, a dramatic increase in such a short time). This involves a total of 159,520 prisoners (up from just 34,000 in 1984), 49,081 of whom have no possibility of parole. Five states account for more than half (58 percent) of all the LWOP prisoners: Florida, Pennsylvania, Louisiana, California, and Michigan. Additionally, about 2,500 juveniles are serving LWOP sentences (out of a total of more than 6,000 serving life terms). Two Supreme Court decisions, however, have greatly altered the status of juvenile LWOP sentences. In 2010, in Graham v. Florida, the Court ruled that, because of the scientific evidence on adolescent brain development, with the exception of murder, a person who was a juvenile at the time the crime was committed could not be given the harshest sentence available. Two years later, in Miller v. Alabama, the court, again citing scientific evidence regarding adolescents, ruled that a LWOP sentence for a juvenile that did not take into account age and other relevant factors violated the Eight Amendment prohibition of cruel and unusual punishment. The latter decision may affect as many as 2,000 sentenced juveniles, but whether the decision is retroactive and will result in the release of already sentenced juveniles is still being litigated.70 The harshness of LWOP laws caused courtroom work groups to adapt, illustrating the laws of criminal justice thermodynamics we discussed in Chapter 3. Although there were 3,140 prisoners serving three-strikes’ life sentences from Los Angeles in 2008, there were only 39 from San Francisco where prosecutors simply refused to use the law often. Sentences of LWOP have been criticized on many grounds. Although they are often used as an alternative to the death penalty, they do not receive the same close scrutiny that death sentences receive and have only recently received critical scrutiny. LWOP sentences also achieve virtually no crime reduction. It is well-established in criminology that criminal activity goes down sharply with age and reaches low levels after the age of thirty. Elderly prisoners are simply not likely to commit any crimes. Of twenty-one people older the age of fifty released in Ohio in 2000, none was rearrested in the next three years. In Pennsylvania, there was a recidivism rate of 1.4 percent in the ten to twenty-two months after release in this same age group. Elderly inmates also impose additional costs on prison systems, particularly with regard to health care. California estimated that it costs the state 98,000 to 138,000 a year for elderly prisoners, which includes the construction of needed hospital beds for seriously ill inmates.71 In short, LWOP is a sentencing absurdity: in addition to unjustly imposing harsh sentences on thousands of people, it raises the prison population, imposes huge costs on prison systems, and achieves no crime reduction. Mandatory Sentencing and Crime For the purposes of this book, the basic question is whether mandatory sentences effectively reduce crime. On this issue, the evidence we have already cited with regard to incapacitation is directly relevant because mandatory sentences are Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 183 essentially the device used to achieve incapacitation. As early as 1982, a Justice Department report concluded that “it is difficult, perhaps fundamentally impossible, to substantiate the popular claim that mandatory sentencing is an effective tool for reducing crime.”72 Years later, we had much more experience with mandatory sentencing. A 1996 report on structured sentencing in a variety of states found no correlation between incarceration rates and crime rates.73 Finally, Zimring and Hawkins’s multistate comparison of incapacitation, which we cited previously, also did not find any clear correlation between incarceration rates and crime rates.74 After reviewing all of the evidence on mandatory sentencing, Michael Tonry, one of the leading experts on sentencing, declared, “Mandatory penalties do not work.”75 In his view, they are widely circumvented, tend to shift discretion from justices to prosecutors, and often result in punishments that are “unduly harsh.” We agree. THREE STRIKES—WE ARE ALL OUT The most radical approach to mandatory sentencing involved the so-called “three strikes and you’re out” laws. The idea of three strikes emerged suddenly in the early 1990s, and is a classic example of how a new idea suddenly appears, captures the public imagination as a “quick fix” for crime, and is seized on by politicians and then translated into law. You do not hear much about threestrikes laws today, but they are on the books in several states and continue to affect sentencing. State three-strikes laws vary, but the basic concept is a mandatory life prison sentence for anyone convicted of a third felony. The state of Washington passed the first law, the Persistent Offender Accountability Act, in November 1993. The idea really caught fire after the brutal murder of Polly Klaas in California by Richard Allen Davis, a man with a long criminal record who had been paroled only three months previously. California passed its three-strikes law in March 1994.76 The Washington law mandated LWOP for conviction of a “most serious offense” if the person had two prior convictions of “most serious offenses,” which includes a wide range of felonies. The California law (which has since been revised substantially) had separate two-strikes and three-strikes provisions. The second-strike provision doubled the sentence for a person convicted of a felony who has a prior felony conviction to a designated “strikeable” offense. The third-strike provision mandated life imprisonment, with no parole eligibility before twenty-five years, to someone convicted of a felony who has two prior convictions for designated strikeable offenses. The 1994 Georgia law mandated LWOP for a second conviction to a “serious violent felony.”77 Three-strikes laws were almost universally condemned by criminologists and experts on sentencing. Franklin Zimring called it “the voodoo economics of California crime.” Jerome Skolnick denounced it as representing the values of “the dark ages.” John J. Dilulio, a conservative defender of the idea, countered Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 184 CHAPTER 7 by arguing that “society has a right not only to protect itself from convicted criminals but to express its moral outrage at their acts by, among other things, keeping them behind bars.”78 One of the major criticisms has been that three-strikes laws are crude instruments and do not focus on repeat offenders who have committed a series of major crimes. They are, in fact, the polar opposite of the scientific precision that selective incapacitation sought to achieve. The first California case, in fact, involved Jerry Williams, who stole a slice of pepperoni pizza. The first woman prosecuted under the law was arrested for a 20 cocaine purchase that occurred fourteen years after her second strike. One of the first people sentenced to life in prison in the state of Washington had stolen 151 from a sandwich shop; his two previous strikes involved robberies totaling 460. In short, these laws violate the basic principle of reserving imprisonment and long prison sentences for the few offenders with the most serious criminal records in terms of the number and seriousness of their offenses. Actually, states have had repeat offender law for a long time. The first such law in the United States was passed in 1797. A famous 1926 New York law mandated life in prison for conviction to a third felony. A national survey of repeat offender laws by William F. McDonald in the mid-1980s found that these older laws were “rarely used” and widely regarded as a “dead letter.”79 Clearly, courtroom work groups simply ignored them. Forty-one states had some kind of repeat offender or habitual offender law on the books in February 1994, before the three-strikes movement took off.80 Three-strikes laws raise the same questions we have already considered in this book. First, will a law in fact be implemented or simply evaded by the courtroom work group? Second, assuming it is implemented, what impact will it have on the criminal justice system? Third, will it reduce serious crime? Implementation and Impact of Three-Strikes Laws With the exception of California, and to a certain extent Georgia, states have not used their three-strikes laws. An early study found that Wisconsin used its law only once in the first year and a half, whereas Tennessee, New Mexico, and Colorado did not use theirs at all.81 Evasion is easy: local prosecutors simply do not file the charges necessary for the three-strikes provisions to take effect. In some instances, the law becomes a plea bargaining tool. Many cases can be filed either as felonies or misdemeanors (say, misdeanor assault versus felonious assault). The law gives the prosecutor a powerful weapon to get a guilty plea to a misdemeanor; in Sacramento, California, there were charge reductions in 67 percent of all the eligible cases. Even in California, application of the law varied tremendously. Two-thirds of all cases under the law originated in Los Angeles County. Officials in San Francisco, meanwhile, publicly stated that they would not use it in certain kinds of cases, including drug cases.82 Did the law reduce serious crime as its supporters promised? Did it cause huge backlogs in criminal courts as its opponents warned? What was the fiscal impact on the state? In 2004, to mark the tenth anniversary of the California Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 185 law, the Justice Policy Institute (JPI) undertook an evaluation of the law’s impact.83 First, the law did send a lot of people to prison for long terms. By 2004 more than 42,000 strikers were serving terms in California prisons, representing between 20 and 25 percent of all prisoners. Second, the immediate impact of the law was not as great as initially expected. The California Department of Corrections had projected an additional 80,000 prisoners by 1999. The reason only half as many were actually sentenced is simple: only a few prosecutors in California used the law heavily. Los Angeles prosecutors used it a lot, but San Francisco prosecutors hardly at all. Third, consistent with the bait-and-switch problem we have previously discussed, the law weighed most heavily on the less serious offenders. The number of third strikers grew from 254 in 1994 to 7,234 in September 2003, but the number of second strikers soared from 4,154 in 1994 to 35,211 in September 2003. The JPI concluded that “[t]he Three Strikes law has a disproportionate effect on people convicted of non-violent offenses.” Almost two-thirds (64.5 percent) of second and third strikers were in prison for a nonviolent offense.84 The law also compounded the racial disparities in the California justice system. The JPI found that the African American incarceration rate for third strikes (143 per 100,000 African American residents) was twelve times higher than the third-strike incarceration rate for whites (12 per 100,000 white residents). Latinos were only moderately affected by the law. Most important from our standpoint, the three-strikes law did not produce a reduction in crime. In Punishment and Democracy: Three Strikes and You’re Out in California, Franklin Zimring and his colleagues argue that even if fully applied, the law would havehad only a modest impact on crime. They estimate that even if all the arrestees who were eligible under the law “were to disappear from the earth without a trace” (and thus commit no more crimes), the result would be only a 10.6 percent reduction in felonies.85 The failure of the law to reduce crime was also confirmed by cross-state comparisons. States without three-strikes laws experienced a greater average drop in violent crime in the 1990s than states with such laws. In 2000, California voters passed Proposition 36, the Substance Abuse and Crime Prevention Act, which required that drug possession offenders be eligible for drug treatment instead of prison. This included offenders who were three strikes—eligible and had been out of prison for five years. And finally, in November 2012 the votes substantially weakened the three-strikes law altogether. Summary: Striking Out Three-strikes laws represent all the worst aspects of the “get-tough” approach to crime. First, they are a classic example of overreaction to celebrated cases. Second, they represent a crude, meat-ax policy that sweeps up many nondangerous criminals. Third, they are not consistently implemented and thus increase the arbitrariness of the administration of justice. Fourth, they upset the normal going rate and impose new costs on local criminal justice systems, including more trials, delays, and greater dollar costs. Finally, no clear evidence indicates that they Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 186 CHAPTER 7 reduce serious crime (and some good evidence shows that they incarcerate a lot of people who will not commit any crimes at all). Rereading today William F. McDonald’s 1986 report on the old repeat offender laws is a sobering and depressing experience. In effect, McDonald predicted all of the problems associated with three-strikes laws. Surveying all of the states with such laws, he found: “Only a small fraction of eligible habitual offenders have been or are currently being sentenced as such.” McDonald interviewed members of the courtroom work group and found a general perception that “prior criminality is already being taken proper account of under the normal sentencing structure.”86 In short, as we argued in Chapter 3, the prevailing going rate did allow serious offenders to avoid significant punishment. For the most part, the old repeat offender laws were used as plea-bargaining tools. Not surprisingly, prosecutors gave the laws generally favorable ratings, whereas defense attorneys and judges were highly critical. McDonald’s report also anticipated the conceptual confusion that surrounds three-strikes laws. The old repeat offender laws failed to distinguish among seriousness, repetitiveness, intensity, and dangerousness. Seriousness refers to gravity of the particular crimes, including both the immediate crime for which an offender is being prosecuted and past crimes. Repetitiveness refers to a defendant’s prior record or criminal career. Intensity refers to the rate at which a defendant has committed crimes in the past, as in the annual offending rate. Dangerousness, meanwhile, represents a predictive assessment of the amount of harm an offender might do to the community. McDonald found that practitioners believed that the old laws often sentenced offenders who were “not truly dangerous predators but comparatively petty offenders.”87 As we have seen, three-strikes laws are blunt instruments that often result in the incarceration of persons convicted of relatively less serious offenses but whose records happen to fit a mechanical formula. 17 PROPOSITION Mandatory sentencing, in all of its forms, is not an effective means of reducing serious crime. JUST KEEP THEM AWAY FROM US: SEX REGISTRATION AND NOTIFICATION LAWS The national panic over sex offenses, especially sexual abuse or rape of children, has led to a set of restrictive policies directed at sex offenders, including sex offender registration and notification requirements, and restrictions on where they may live. Restrictions on sex offenders are not, strictly speaking, a lock ’em up crime policy. But in important respects the policy is a first cousin. Instead of keeping offenders in prison, it seeks to keep them away from our neighborhoods and our children. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 187 The celebrated case syndrome has had an enormous impact on the issue of sex offenders. For obvious reasons, child abduction and sexual assault cases generate enormous publicity. Yet, they are very rare; estimates consistently find fewer than 200 child abductions by nonfamily members every year.88 The current national panic over sex offenders began with yet another celebrated case, the 1994 rape and murder of seven-year-old Megan Kanka in New Jersey. As a result, many laws are referred to as Megan’s Law. A 1996 federal law requires sex offenders who are released to the community to register with state officials. The law allows state and local officials some discretion in establishing procedures for notifying community residents about where convicted sex offenders are living. The 2006 federal Adam Walsh Act expanded the categories of offenders required to register for their entire lives. Also, for the first time, juveniles as young as fourteen were required to register for fifteen years.89 Advocates of registration and community notification believe that sex offenders pose a high risk of reoffending, that registration will assist law enforcement in surveilling or arresting them, that the knowledge of this surveillance will deter them from reoffending, and that notification will help residents take protective measures they feel are appropriate. The New Jersey registration and notification law illustrates how many laws operate. It has three tiers based on an assessment of the offender’s risk of reoffending. Tier-one offenders, in the lowest risk category, are only required to notify local law enforcement officials and their victim after release from prison. Tier-two offenders are also required to notify organizations such as schools, daycare centers, and summer camps. Tier-three offenders, in the highest risk category, are subject to public notification through posters, pamphlets, and the Internet.90 The New Jersey law and its counterparts in other states bring up our old friend the prediction problem. How accurate are the New Jersey risk classifications? Are they evidence based? These questions, in turn, force us to take a look at the facts on sex offenders and their reoffending rates. As we have already seen in our discussion of bail, rapists have the lowest reoffending rate of all major felony categories. The Center for Sex Offender Management (CSOM), summarizing the available data, estimates that sex offenders reoffend at a rate of between 10 and 24 percent.91 In one study, the rearrest rate for parolees who had been convicted of rape over three years was 46 percent within the next three years after parole. Although this was higher than in other studies, it was still lower than the rearrest rate for all felons paroled (67 percent); it was far lower than the rearrest rate for robbers (70 percent) and burglars (74 percent).92 In short, the danger of sex offenders reoffending has been exaggerated. The data on reoffending rates focuses our attention on the relevant question: What is the real danger regarding sex offenders? How can we effectively protect society? In fact, reported sex offenses have been declining for years. Adult rape and sexual assault went down 37 percent between 2002 and 2011 as part of the Great American Crime Drop.93 In New Jersey, the decline in reported sex Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 188 CHAPTER 7 offenses began in 1985. The social and political panic over predatory sex offenders, therefore, is excessive. The data on who offends, moreover, suggest that registration and notification laws do not protect us from the real potential offenders. Among sexual assault victims under age eighteen, 90 percent knew their abusers; 34 percent of the offenders were family members, and 59 percent were acquaintances. In short, the image of the stranger predator lurking in the park to snatch a child does not accurately represent most sex offenders. Nor are most sex offenders repeaters: 87 percent of persons arrested for sex crimes had no previous criminal conviction. Politicians repeatedly cite recidivism rates of 40, 74, or even 90 percent (A public opinion survey found that the public believes it is about 75 percent). Yet the data do not support such claims. A Justice Department study of fifteen states found that among 9,691 male offenders, only 5.3 percent had been arrested for a sex crime (and 3.5 percent had been convicted) after three years.94 Enforcement Problems There are a number of problems with current sex offender and registration laws, and they include the following issues. OVERBREADTH The laws cover many people who are not really dangerous offenders and are certainly not likely to kidnap and rape or kill a child. The laws cover people who have been convicted of urinating in public (exposure is classified as a sex crime); people who have engaged in consensual sex, for example between an adult male and a teenage female; adults who buy and sell sex with each other; and even children who expose themselves as childish pranks (the old game of playing “Doctor”). There is also overbreadth in the length of time people are required to register. Seventeen states now make people register for life. Because of overbreadth, local law enforcement officials have difficulty even keeping track of all the registered sex offenders they are responsible for. In Iowa, for example, the County Attorney’s Association reported that local prosecutors had lost track of half of all registered offenders. Offenders move and don’t report where they are going; they lie about their status in their new location. One county reported that before the law took effect, they knew where 90 percent of the offenders were; afterward, they knew the residence of only about 50 to 55 percent. The laws make enforcement difficult because they drive offenders underground. The requirements often separate them from their families if for example, family members live too close to a school. A previous evaluation of the Wisconsin community notification law found that it imposed more work on probation and parole officials, especially when intensive supervision was part of the requirement, and that community notification meetings left as many people attending those meetings feeling worried about being victimized as were reassured. Offenders almost unanimously reported that notification hindered their readjustment to society, making it difficult to find housing and jobs, generating threats or harassment, and creating a general Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 189 atmosphere of social ostracism. (When we examine offender reentry programs in Chapter 14, we will examine the many obstacles facing offenders who return to the community.) The Wisconsin study did not, however, attempt to evaluate the law’s effect on recidivism.95 RESIDENCY RESTRICTIONS The Human Rights Watch report, No Easy Answers, concludes that the residency requirements in sex offender laws “may be the harshest as well as the most arbitrary” of all the new restrictions on criminal offenders. About twenty states have laws that put restrictions on where sex offenders can live. Typically they forbid an offender from living less than 1,000 or 2,500 feet from schools, daycare centers, and public parks and swimming pools. Some homeless shelters refuse to accept sex offenders. In some cases, there is almost no place an offender can live. In Orange City, Florida, only 5 percent of the city is outside a zone where sex offenders cannot live. Nearly half the sex offenders in Florida reported they could not live with their own family members. Meanwhile, hundreds of cities have similar local ordinances. And in Miami, Florida, a group of offenders were living under a bridge because they could not find housing anywhere. One offender in Iowa could not live with and care for his sick grandmother because she lived near a child care center. Another Iowa registrant listed his address as “behind the Target [store] on Euclid [street].”96 INTERFERING WITH EFFECTIVE TREATMENT Registration, notification, and residency restriction laws interfere with effective treatment for sex offenders. Family members are the people who are likely to be supportive of and help them rehabilitate themselves (reminding them to attend their counseling sessions, keeping an eye on them, and so on). In many cases, the added financial stress of maintaining two residences disrupts offenders’ lives and those of family members. Numerous laws, meanwhile, prevent them from finding employment. It is difficult to get and keep a job when you are living out behind a Target store or under a bridge. Some employers are required to check sex offender registries. Many employers refuse to hire offenders even though the law does not prohibit them from doing so. States do, however, have laws barring employment at schools and child care centers. Parolees unable to meet the employment conditions of their release, of course, are more likely to recidivate (as is the case with all ex-offenders, regardless of their crime). FAILURE TO PROTECT SOCIETY Perhaps most seriously, the laws do not really protect society. A Minnesota study found that offenders were more likely to recidivate if they traveled to a different city. The two offenders who did commit new sex crimes committed them miles from where they were living. A 2007 Minnesota study found that most repeat offenders found their victims through social networks and not as strangers on the street or in a park. An evaluation of the New Jersey Sex Offender Registration and Notification Law found only “limited effects” on crime. It had “no demonstrable effect on the number of victims involved in sexual offenses.” Sex crimes began declining Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 190 CHAPTER 7 in the state since 1985, a decade before the law was passed, and that downward trend continued. As is the case nationally, half of all sex offenses involve incest or child molestation, and in half of all cases the victim knows the offender. In 2006, counties across New Jersey spent an estimated 3.9 million implementing the law.97 Summary After looking at all the evidence, what do we know? The best answer is reflected in the title of the Human Rights Watch report: there are No Easy Answers. Sex crimes are indeed a serious problem, with terrible, traumatic effects on their victims, particularly when they are children. A certain number of sex offenders do repeat. We should not minimize these unpleasant facts. The problem is that our current policies have swung too far in the direction of crime control, exaggerating the problem and imposing restrictions that are not only irrelevant for many offenders but are also ineffective for the real problem cases and often counterproductive. Human Rights Watch found that the United States is the only country in the world with such an array of restrictions on sex offenders. Other countries debated similar laws but rejected them. As is the case with overincarceration of offenders, the United States is “alone in the world.” 18 PROPOSITION Sex offender registration, notification, and residency restriction laws are not effective in preventing repeat sex crimes and in certain respects inhibit effective control and treatment of offenders. CONCLUSION From a commonsense standpoint, lock ’em up strategies appear to be a simple and effective way to reduce crime: Get repeat offenders off the street and they won’t be able to prey on society. Unfortunately, it is not that simple in the real world of the criminal justice system. First, we cannot precisely identify the small group of high-rate offenders. Second, gross incapacitation policies create all sorts of problems in the justice system. Third, because of these problems, the courtroom work group often finds ways to evade extremely punitive laws. Fourth, no conclusive evidence indicates that locking up a lot of people actually produces the promised reductions in crime. Finally, even when some crime reduction does occur, it is not clear that it is worth the enormous dollar cost to society. Where does that leave us? As we have already suggested, the best response is captured by the title of the Human Rights Watch Report: there are No Easy Answers. Dangerous criminals do exist, and they deserve to be punished. The problem is that it is difficult to spot them early in their criminal careers. The Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 191 prediction problem gets in the way of many easy-sounding solutions. Unfortunately, we have ignored the prediction problem and embarked on a course of gross incapacitation. As we have argued, this not only does not effectively reduce crime, but it also imposes many other high costs on society. In Chapter 14, we will try to bring together some of the promising policies that have emerged and suggest some sensible answers to our difficult crime problem. NOTES 1 See the critical discussion of President Bill Clinton’s crime policies in the 1990s in Michael Tonry, “Less Imprisonment is No Doubt a Good Thing: More Policing Probably is Not,” Criminology and Public Policy 10 (no 1, 2011), 137–152. 2 Nicole D. Porter, The State of Sentencing 2011 (Washington DC: The Sentencing Project, 2012). Bureau of Justice Statistics, Historical Statistics on Prisoners in State and Federal Institutions, Yearend 1925–1986 (Washington, DC: Department of Justice, 1988), Table 1. 3 Jerome G. Miller, Search and Destroy: African American Males in the Criminal Justice System (New York: Cambridge University Press, 1996). 4 Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Communities Worse (New York: Oxford University Press, 2007). 5 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010). 6 Bureau of Justice Statistics, Prisoners in 2011 (Washington, DC: Department of Justice, 2012). 7 Richard Rosenfeld, “From Mass Incarceration to Targeted Policing: Introduction to the Special Issue,” Criminology and Public Policy 10 (No. 1, 2011), 3. 8 President’s Task Force on Victims of Crime, Final Report (Washington, DC: Government Printing Office, 1982), 22. 9 Caleb Foote, “The Coming Constitutional Crisis in Bail,” University of Pennsylvania Law Review 113 (May 1965): 959–999 and ibid., (June 1965): 1125–1185. 10 On the background of the bail issue, see Wayne Thomas, Bail Reform in America (Berkeley: University of California Press, 1976). 11 Caleb Foote, “Compelling Appearance in Court: Administration of Bail in Philadelphia,” University of Pennsylvania haw Review 102 (1954): 1031–1079. 12 Bureau of Justice Statistics, Profile of Jail Inmates, 2002 (Washington, DC: Department of Justice, 2004). Thomas, Bail Reform in America. 13 Samuel Walker, Popular Justice: A History of American Criminal Justice, 2nd ed. (New York: Oxford University Press, 1998). 14 Preventive Detention in the District of Columbia: The First Ten Months (Washington, DC: Georgetown Institute of Criminal Law and Procedure, 1972); Thomas, Bail Reform in America, 231–232. 15 Thomas, Bail Reform in America, 231-232. 16 Frederic Suffet, “Bail Setting: A Study of Courtroom Interaction,” Crime and Delinquency 12 (1966): 318–331. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 192 CHAPTER 7 17 United States v. Salerno, 481 U.S. 739 (1987). 18 General Accounting Office, Criminal Bail: “How Bail Reform Is Working in Selected District Courts” (Washington, DC: Department of Justice, 1987). Bureau of Justice Statistics, Pretrial Release and Detention: The Bail Reform Act of 1984 (Washington, DC: Department of Justice, 1988). 19 Thomas E. Scott, “Pretrial Detention under the Bail Reform Act of 1984: An Empirical Analysis,” American Criminal Law Review 27 (No. 1, 1989): 1–51. Bureau of Justice Statistics, Federal Pretrial Release and Detention, 1996 (Washington, DC: Department of Justice, 1999). 20 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009 (Washington, DC: Department of Justice, 2013), Tables 12, 13. 21 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2004, Statistical Tables (Washington, DC: Department of Justice, 2008). 22 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2006, Table 18. 23 William Rhodes, Raymond Hyatt, and Paul Scherman, Predicting Pretrial Misconduct with Drug Tests of Arrestees: Evidence from Six Sites (Washington, DC: Department of Justice, 1996). 24 Office of National Drug Control Policy, Adam II 2012 Annual Report (Washington, DC: Department of Justice, 2013). 25 Schall v. Martin, 467 U.S. 253 (1984). 26 Jeffrey Fagan and Martin Guggenheim, “Preventive Detention and the Judicial Prediction of Dangerousness for Juveniles: A Natural Experiment,” Journal of Criminal Law and Criminology 86(2) (1996): 415–448. 27 Ibid., 445, 448. 28 Bureau of Criminal Justice Statistics, Jail Inmates at Midyear 2012—Statistical Tables (Washington, DC: Department of Justice, 2013). 29 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2006, Table 10. 30 Malcolm Feeley, Court Reform on Trial (New York: Basic Books, 1983). 31 Franklin E. Zimring and Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime (New York: Oxford University Press, 1995). 32 James Q. Wilson, Thinking about Crime (New York: Basic Books, 1975), 200–202. 33 Peter Greenwood, Selective Incapacitation (Santa Monica, CA: Rand Corporation, 1982). 34 Jan M. Chaiken and Marcia R. Chaiken, Varieties of Criminal Behavior Summary and Polity Implications (Santa Monica, CA: Rand Corporation, 1982). 35 Alfred Blumstein, Jacqueline Cohen, Jeffrey Roth, and Christy Visher, eds., Criminal Careers and “Career Criminals” (Washington, DC: National Academy of Sciences, 1988). 36 Ibid., 59. 37 Ibid., 60. 38 Peter W. Greenwood and Susan Turner, Selective Incapacitation Revisited: Why the High-Rate Offenders Are Hard to Predict (Santa Monica, CA: Rand Corporation, 1987). 39 Ibid., Table 4.3. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 193 40 American Bar Association, Standards for Criminal Justice, “Sentencing Alternatives and Procedures,” Standard 18-2.1 (Boston: Little, Brown, 1980), 18–25. A good discussion of recent developments is Nicole Porter, The State of Sentencing, 2011: Developments in Policy and Practice (Washington, DC: The Sentencing Project, 2012). 41 Edwin W. Zedlewski, Making Confinement Decisions (Washington, DC: Department of Justice, 1987). 42 Franklin E. Zimring and Gordon E. Hawkins, “The New Mathematics of Imprisonment,” Crime and Delinquency 34 (October 1988): 425–436. See also Zimring and Hawkins, Incapacitation. 43 Enc J. Scott, Calls for Service (Washington, DC: Department of Justice, 1981). 44 Franklin E. Zimring, The Great American Crime Decline (New York: Oxford University Press, 2007), 46–56. 45 Zimring and Hawkins, Incapacitation. 46 Ibid., 126. 47 Ibid., 106–107. 48 Zimring, The Great American Crime Decline, 51, 120–121. 49 Steven N. Durlauf and Daniel S. Nagin, “Imprisonment and Crime: Can Both Be Reduced?” Criminology and Public Policy 10 (No. 1, 2011): 13–54. 50 Recent developments are reported in Porter, The State of Sentencing 2011. 51 Durlauf and Nagin, “Imprisonment and Crime: Can Both be Reduced?,” 38. 52 Bureau of Justice Assistance, National Assessment of Structured Sentencing (Washington, DC: Department of Justice, 1996), 24–25. 53 The Sentencing Project, Life Goes On: The Historic Rise in Life Sentences in America (Washington, DC: The Sentencing Project, 2013). 54 Bureau of Justice Statistics, Truth in Sentencing in State Prisons (Washington, DC: Department of Justice, 1999). 55 Campaign for an Effective Crime Policy, The Impact of “Three Strikes and You’re Out” Laws: What Have We Learned (Washington, DC: Campaign for an Effective Crime Policy, 1996). 56 A good introduction to the various laws affecting prison terms is the review of recent efforts by states to modify or repeal them in Porter, The State of Sentencing, 2011. 57 U.S. Department of Justice, The Nation’s Toughest Drug Law Evaluating the New York Experience (Washington, DC: Department of Justice, 1978). 58 Ibid., 18. 59 Dale Parent, Terence Dunworth, Douglas McDonald, and William Rhodes, Mandatory Sentencing (Washington, DC: Department of Justice, 1997). 60 Bureau of Justice Statistics, Drugs, Crime, and the Justice System (Washington, DC: Department of Justice, 1992), 30. 61 Drug Policy Alliance, New York’s Rockefeller Drug Laws: Explaining the Reforms of 2009 (New York: Drug Policy Alliance, 2009). www.drugpolicy.org. Partnership for Responsible Drug Information, Rockefeller Drug Law Information Sheet (New York: Partnership for Responsible Drug Information, 2009). www.prdi.org. 62 Ibid. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 194 CHAPTER 7 63 New York Division of Criminal Justice Services, 2009 Drug Law Changes, June 2012 Update (Albany: Division of Criminal Justice Services, 2012). 64 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 6.13.2011. 65 Council of State Governments, Lessons from the States: Reducing Recidivism and Curbing Corrections Costs Through Justice Reinvestment (Washington, DC: Council of State Governments, 2013). 66 Porter, The State of Sentencing, 2011. 67 U.S. Sentencing Commission, 1987 Federal Sentencing Guidelines Manual, Chapter One: Introduction and General Application Principles. 68 Minnesota Sentencing Commission, Minnesota Sentencing Guidelines and Commentary (August 1, 2012). State incarceration rates: Bureau of Justice Statistics, Prisoners in 2012—Advance Counts (Washington, DC: Department of Justice, 2012). 69 U.S. Sentencing Commission, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (Washington, DC: U.S. Sentencing Commission, 2011). See the review of the report in The Sentencing Project, Federal Mandatory Minimum Sentencing: An Overview of the 2011 Report by the U.S. Sentencing Commission (Washington, DC: The Sentencing Project, 2011). 70 The Sentencing Project, Life Goes On, p. 11. Ashley Nellis, “Tinkering with Life: A Look at the Inappropriateness of Life without Parole as an Alternative to the Death Penalty,” University of Miami Law Review 67 (2013): 439–458. Ashley Nellis and Ryan S. King, No Exit: The Expanding Use of Life Sentences in America (Washington, DC: The Sentencing Project, 2009). Graham v. Florida, 560 U.S. ___ (2010). Miller v. Alabama, 567 U.S. ___ (2012). 71 Nellis and King, No Exit. 72 U.S. Department of Justice, Mandatory Sentencing: The Experience of Two States (Washington, DC: Department of Justice, 1982). 73 Bureau of Justice Assistance, National Assessment of Structured Sentencing, 117. 74 Zimring and Hawkins, Incapacitation. 75 Michael Tonry, “Mandatory Penalties,” in Michael Tonry, ed., Crime and Justice: A Review of Research, 16 (Chicago: University of Chicago Press, 1992), 243. 76 Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy: Three Strikes and You’re Out in California (New York: Oxford University Press, 2001). 77 Michael G. Turner, Jody Sundt, Brandon K. Applegate, and Francis T. Cullen, “‘Three Strikes and You’re Out’ Legislation: A National Assessment,” Federal Probation 59 (September 1995): 16–35. 78 Jerome H. Skolnick, “Wild Pitch,” American Prospect 17 (Spring 1994): 31–37. Shichor and Sechrest, Three Strikes and You’re Out. John J. Dilulio, Jr., “Instant Replay,” American Prospect 18 (Summer 1994): 12–18. 79 William F. McDonald, Repeat Offender Laws in the United States: The Form, Use, and Perceived Value (Washington, DC: Department of Justice, 1986), 5. 80 Bureau of Justice Assistance, National Assessment of Structured Sentencing, pp. 24–25. Turner et al., “‘Three Strikes and You’re Out’ Legislation.” 81 Zimring, Hawkins et al. Punishment and Democracy: Three Strikes and You’re Out in California. 82 Ibid. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. LOCK ’EM UP 195 83 Scott Ehlers, Vincent Schiraldi, and Jason Ziedenberg, Still Striking Out: Ten Years of California’s Three Strikes (Washington, DC: Justice Policy Institute, 2004). Available on the Justice Policy Institute website. http://www.justicepolicy.org/index.html. Accessed February 14, 2014. 84 Ibid. 85 Zimring, Hawkins et al. Punishment and Democracy: Three Strikes and You’re Out in California. 86 McDonald, Repeat Offender Laws in the United States, Abstract, np. 87 Ibid., 7, 9. 88 An estimate of 115 per year is at National Center for Missing and Exploited Children, Key Facts, available at www.missingkids.com/keyfacts. Accessed February 14, 2014. 89 Human Rights Watch, No Easy Answers: Sex Offender Laws in the United States (New York: Human Rights Watch, 2007). Peter Finn, Sex Offender Community Notification (Washington, DC: Department of Justice, 1997). 90 Kristen M. Zgoba, and Karen Bachar, Sex Offender Registration and Notification: Limited Effects in New Jersey (Washington, DC: Department of Justice, April 2009). 91 Center for Sex Offender Management, Fact Sheet: What You Need to Know About Sex Offenders (Washington, DC: Center for Sex Offender Management, 2008). 92 Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994 (Washington, DC: Department of Justice, 2002). 93 Bureau of Justice Statistics, Criminal Victimization, 2011 (Washington, DC: Department of Justice, 2012), Table 2. 94 Human Rights Watch, No Easy Answers. 95 Richard G. Zevitz and Mary Ann Farkas, Sex Offender Community Notification: Assessing the Impact in Wisconsin (Washington, DC: Department of Justice, 2001). 96 Human Rights Watch, No Easy Answers. 97 Zgoba, and Bachar, Sex Offender Registration and Notification Limited Effects in New Jersey. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 8 Close the Loopholes D o dangerous criminals “beat the system” and escape punishment because of loopholes in the system? Do their lawyers get their cases dismissed? Are they allowed to plead guilty to lesser offenses, so that they either don’t go to prison or only for short terms? Do they have their convictions overturned on appeal, so that they go free? Conservatives believe that loopholes allow many dangerous criminals to avoid conviction and punishment and are a major part of our crime problem. Let’s take a close look at these beliefs and some of the proposals to close alleged loopholes in the criminal justice system. PROSECUTE THE CAREER CRIMINAL Many conservatives believe that dangerous criminals repeatedly avoid prosecution, punishment, and conviction, and as a result are able to commit many repeat offenses. To close this alleged loophole, some prosecutor’s offices have created major-offender or career criminal programs. The basic idea is to focus special attention on this category of offenders and to make sure they are prosecuted, convicted, and sentenced to an appropriately long prison term. Some programs focus on the career criminals we discussed in Chapter 4, offenders with long criminal records. Others focus on people charged with particularly serious crimes, such as sexual assaults or crimes where guns are used. Do these programs work? Do they close a loophole in the system? Does this loophole even exist? If it does, how big is it? And can it be closed? Special prosecutor’s units address the distinction between “horizontal” and “vertical” approaches to prosecution. Most large urban prosecutors’ offices use a horizontal approach. One group of prosecutors handles the initial filing of charges and arraignment. Another group takes the case to trial and negotiates plea bargains. In some offices, a separate group of trial specialists handles the few trials that occur. In the vertical approach, one prosecutor (or more, in a complex case) handles the case from initial charge through to its end. 196 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 197 Advocates of vertical prosecution believe it has many benefits. Each prosecutor becomes intimately involved in the cases he or she is responsible for. Important factors are not lost as a case is passed from one attorney to another. Some advocates believe that prosecutors are more likely to become more personally committed to each case and with the victims, and consequently are less likely to plea bargain down to a much lesser charge. Vertical prosecution programs involving particular crimes such as sexual assaults are believed to keep prosecutors focused on the seriousness of those crimes. An additional expected benefit is that crime victims gain greater comfort from dealing with only one attorney throughout the case. The prosecutors, meanwhile, get to know the victims, and this is believed to increase their commitment to a case. With regard to sex crimes or gun crimes, moreover, specialization helps prosecutors develop expertise in handling the special characteristics of those kinds of cases. Continuity can also help eliminate disparities in dispositions. Presumably, you don’t have different prosecutors negotiating different kinds of plea bargains. Does a Special Prosecutorial Unit Make a Difference? Does having a special prosecutorial unit make a difference? Cassie Spohn and Dawn Beichner compared the prosecutors’ offices in Kansas City, Missouri, which had a special prosecutorial unit for sex crimes, with Miami, Florida, which did not have one. In Kansas City, special unit prosecutors handled cases from the initial charging decision through to the final disposition. In Miami, one set of attorneys handled the initial charging decision, and the case was then passed to a separate group who handled the case to its end. Most notably, charges were filed in nearly identical percentage of all cases received by the two offices (both around 58 percent). Interviews, moreover, found that prosecutors in both offices reported that the same factors influenced decisions. Both charged or dismissed on whether there was proof beyond a reasonable doubt of the defendant’s guilt. That is, both asked, can we win this case? A statistical analysis of factors associated with charging decisions also found “nearly identical” patterns between the two offices. Of particular interest is the fact that neither prosecutor’s office allowed a differential racial mix (for example, black defendant, white victim) to affect its charging decisions.1 The main implications of the findings are that a special unit for sexual assault cases did not close a loophole that allowed offenders to slip through with no charge or significantly lower charges for the simple reason that there was no loophole. Strength of the evidence and the likelihood of conviction shaped decisions in both offices. The San Diego Major Violator Unit An evaluation of the San Diego Major Violator Unit addressed the question of whether a special prosecutors unit resulted in a higher rate of convictions and more severe punishment. The unit targeted robbery and robbery-related homicide cases in which the defendant was charged with three or more separate Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 198 CHAPTER 8 robbery-related offenses or had been convicted of one or more serious offenses in the preceding ten years.2 Taking a vertical approach, the individual prosecutor was assigned a major-violator case and followed it through to final disposition. Like many other special prosecutor programs, the Major Violator Unit included restrictions on plea bargaining.3 Prosecutors could not charge bargain, that is, accept a plea to a lesser offense; they could only accept a guilty plea to the top felony count. Charge bargaining, as we will see when we discuss plea bargaining later in this chapter, is what critics of plea bargaining believe to be the main way in which offenders avoid prison, or a long mandatory prison term, by pleading to a lesser felony or even a misdemeanor. Despite these special procedures, however, the Major Violator Unit had only a modest impact on the prosecution of career criminals. True, it won conviction in an impressive 91.5 percent of its cases, but San Diego prosecutors normally convicted 89.5 percent of all defendants with similar charges and prior records. The unit did, however, increase the percentage of convicted offenders sent to prison, from 77.1 percent to 92.5 percent. But this change was less significant than it might appear. More than 90 percent comparable offenders (the current crime and their criminal history) were already being incarcerated. The difference is that some had gone to jail (and thus for short terms), rather than prison.4 In short, as we indicated in Chapters 2 and 3, the system was already tough on career criminals and there was no loophole to close. The San Diego data illustrate another often misunderstood aspect of sentencing in the United States. The category of incarceration includes both sentences to prison and split sentences, in which the offender does some time in jail followed by release on probation. Split sentences are actually fairly common. In 2009, 73 percent of all convicted felony defendants in large urban counties were sentenced to some form of incarceration, and they were almost equally split between prison (36 percent) and jail (37 percent) terms.5 As we discussed in Chapter 1, the distinction between prison and jail sentences can have an enormous impact on public perception of how the system works. If you ask what percentage of convicted offenders went to prison (36 percent), the system looks somewhat weak. But when you include everyone who is incarcerated, meaning prison and jail (73 percent), it looks a lot tougher. True, going to jail is not as serious as going to prison, but it is still an unpleasant experience, and these offenders are not beating the system. The Major Violator Unit did double the average length of incarceration. In this respect, it significantly increased the severity of punishment. But it is important to recall that the length of prison terms had begun rising all across the country in that time period, particularly for serious crimes and for defendants with long criminal histories. It is likely that much, although not necessarily all, of the increase in prison terms in San Diego probably would have occurred even without the Major Violator Unit. Did the San Diego Major Violator Unit have any impact on the crime rate? The evaluation did not address this question. Common sense, however, suggests that it could not have had any significant effect because the changes in the percentage of offenders convicted and the percentage incarcerated were so Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 199 small. True, there was an increase in the length of prison terms, but as we learned in Chapter 7, there is little persuasive evidence that longer prison terms reduces crime. These data on the prosecution of so-called career criminals confirm the points made in Chapters 2 and 3. First, the criminal justice system is generally tough on repeat offenders who have committed another serious crime. Second, these patterns of prosecution and sentencing reflect the going rate agreed upon informally by the local courtroom work group. In short, local prosecutors and judges, without the benefit of a special program, are generally tough on major offenders. Many people are surprised to find that the system is consistently tough on career criminals. In 2002, 67 percent of Americans felt that the criminal courts in their area were not harsh enough in dealing with criminals.6 We can explain this misperception in terms of our criminal justice wedding cake (Chapter 2). Public perception is heavily influenced by a few celebrated cases in the top layer: the armed robber who got probation; the rapist who pled guilty to misdemeanor assault. Do such things happen? Of course, they do. But they are the exceptions rather than the rule, and the major lesson of this book is that we should not develop policies on the basis of exceptional cases. The evidence leads to the following proposition: 19 PROPOSITION Special prosecution units do not produce either higher conviction rates or lower crime rates. ABOLISH THE INSANITY DEFENSE John W. Hinckley never succeeded at much in life, but for a brief moment he was singlehandedly responsible for some significant changes in the U.S. criminal justice. Hinckley’s acquittal in a verdict or not guilty by reason of insanity for the attempted assassination of President Ronald Reagan in 1981 sparked a national outcry over the insanity defense. In the succeeding years almost every state and the federal government changed its law on the insanity defense.7 Twelve states adopted a new “guilty but mentally ill” (GBMI) standard and five abolished the insanity defense altogether.8 Hinckley’s acquittal touched one of the raw nerves of public opinion: the sight of a guilty person “beating the rap” and “getting off” because of a “technicality.” There was no question that Hinckley shot and wounded the president; the videotape was broadcast on television around the world. People were outraged over the Hinckley verdict of not guilty by reason of insanity (NGRI), which appeared to let him off. The fact is, however, that he was institutionalized—in a hospital, from which he was not free to leave, rather than a prison. He remains there today, although in 1999 he was granted the right to leave the hospital to have supervised visits with his parents, and later gained longer unsupervised visits. By 2013 he had won the right to be on release for up to ten days at a time, and Secret Service records (remember, he shot a president of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 200 CHAPTER 8 the United States) indicated that he spent his time going to shopping malls, eating at Wendy’s, and shopping at Walmart and Target, without any adverse incidents. In short, he behaved like millions of people in this country. Hinckley’s notoriety has probably kept him in the hospital with limited release procedures far longer than if he had shot an ordinary person (and especially not a president of the United States), pled guilty, and gone to prison. An Insanity Defense Loophole? For many people, the insanity defense is the classic loophole. It conjures up terrifying images of criminally insane persons roaming the streets in search of more victims. Insanity defense proceedings also anger many people. The parade of psychiatrists and expert witnesses on both sides of the case creates the impression that you can always find an expert somewhere to say what you want said. Like the famous O. J. Simpson trial in 1995, the Hinckley case supports the impression that the wealthy can buy lawyers and experts who will win them acquittal on the criminal charges. (Hinckley’s father was a corporate executive.) In one public opinion survey, 87 percent of the respondents felt that the insanity defense was a loophole; about 40 percent called it the “rich person’s defense.”9 The conservative response was to try to close the loophole. Changes in the law following the Hinckley case fall into six categories: (1) abolishing the insanity defense altogether; (2) changing the test of insanity; (3) shifting the burden of proof to the defendant (instead of the state having to prove criminal intent, the defendant has to prove mental illness); (4) creating a new “guilty but mentally ill” verdict; (5) revising trial procedure for raising an insanity plea; and (6) changing procedures for committing a person found not guilty by reason of insanity.10 Sorting out the Issues To make sense of changes in the law on the insanity defense we need to sort out four separate issues. The first concerns the extent of the use of the defense. How many criminal defendants try to use the insanity defense and how many successfully win verdicts of NGRI (not guilty by reason of insanity)? A second issue involves the fate of those who do win acquittal. Do they return to the streets? How soon? Do they endanger the public? The third issue is predicting dangerousness. If some offenders are dangerous, how can we identify them? How can we tell when it is safe to release them? The fourth issue is the effect of abolishing the insanity defense. Would it reduce crime? What would be the impact on the criminal justice system? The Reality of the Insanity Defense Despite all the attention it receives, the insanity defense is rarely used successfully. Few defendants even try to use it, and not many of them succeed. Studies have consistently found that the insanity defense is raised in less than 1 percent of all criminal indictments, and only between 15 and 25 percent of those efforts are successful.11 Henry J. Steadman and his colleagues, for example, found that in Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 201 Illustration by Frank Irwin, © Wadsworth, Cengage Learning. four states (California, Georgia, Montana, and New York), the insanity defense was raised in slightly less than 1 percent (0.90 percent) of all felony indictments, and only about 23 percent of those succeeded in getting an NGRI verdict.12 The American Psychiatric Association Insanity Defense Work Group concluded, “[w]hile philosophically important for the criminal law, the insanity defense is empirically unimportant (involving a fraction of 1 percent of all felony cases).”13 A study of insanity defense in New York County (one of the five jurisdictions in New York City) examined a sample of 172 defendants indicted for a felony who claimed a psychiatric defense between 1988 and 1997. Only seventeen cases, or 10 percent went before a jury where the insanity defense was argued, and only four cases resulted in an acquittal. That represents only 2 percent of those defendants who raised a claim of insanity, and 24 percent of the few cases that went to trial. In short, few offenders raise it, fewer still get to court with it, and most of those do not win with it.14 The extent of public misunderstanding about the frequency of the insanity defense is extraordinary. An Illinois poll found that people believed that nearly 40 percent of all criminal defendants used the insanity defense. These data indicate the extraordinary power of celebrated cases on public opinion. The public misunderstanding explains the fact that nearly half of the respondents wanted the insanity defense abolished.15 Insanity defense cases are completely unrepresentative of the full range of felony cases and tell us nothing about how most serious crimes are routinely handled. Given how infrequently the insanity defense is successfully used, we can safely conclude that no real loophole exists with respect to the insanity defense, and reducing the already limited success rate in its usage would have absolutely no measurable impact on the crime rate. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 202 CHAPTER 8 When the insanity defense is successfully used, it is usually the result of a plea bargain or a stipulated finding. That is, the prosecutor, defense attorney, medical experts, and judge all agree that the defendant is indeed mentally ill. This is another example of the courtroom work group in operation: settling cases through mutual agreement. A study of 60,432 felony indictments in Baltimore, Maryland, in 1991 found that the insanity defense was raised in only 190 cases; it was eventually dropped in 182 cases, and the remaining eight defendants were stipulated mentally ill by both prosecution and defense.16 This is not a picture of hordes of dangerous criminals beating the system and then going out a preying on the public. Another popular myth about the insanity defense is that the people who use it are violent and dangerous. Not all of the defendants committed to mental health institutions by way of an insanity verdict have committed a violent offense, however. Of the five hundred men in the Bridgewater State Hospital, more than one hundred were charged with vagrancy.17 These one hundred people are not dangerous sociopaths. They are pathetic individuals who have serious mental health problems and cannot cope with their lives. Most sank through the various safety nets and ended up on skid row, where they finally were arrested.18 Aftermath of Acquittal What happens to defendants who are committed to mental institutions after winning NGRI verdicts is a matter of much controversy. Liberals generally contend that they are likely to spend more time in a mental hospital than if they had been found guilty of the crime and sent to prison. Conservatives argue that they get out too soon. In the past, there was some truth to the liberal argument. Many allegedly mentally ill people were hospitalized for years, even decades, without any treatment or any evidence that they were really dangerous. Supreme Court decisions and new state laws, however, have led to greater protection of the rights of the confined, especially the right to treatment.19 One of the most important is a mental patient’s right to periodic review of his or her condition to determine whether continued confinement is justified. The landmark case of Baxstrom v. Herold (1966) forced the release of persons held for long periods of time in the New York State Hospital for the Criminally Insane and necessitated the development of new procedures for continued confinement.20 Despite changes in the law and practice over the years, people hospitalized after being found NGRI still spend more time confined in hospitals than comparable offenders spend in prison after being found guilty of the crime. Henry Steadman and his associates found that in New York, 88 percent of all NGRIs were hospitalized; of the 12 percent immediately released, a disproportionate share were women. Those who were charged with murder but found NGRI spent an average of 6.4 years in the hospital; those acquitted of other violent crimes were hospitalized for an average of 5.2 years; and for nonviolent crimes, hospital stays averaged 2.8 years. For all the crimes except murder, these terms of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 203 confinement were longer than for offenders found guilty of similar crimes in those years.21 As a result of the growth of mandatory minimum sentencing in the United States, prison terms today are much longer than they were when these studies were conducted and are now likely to be even longer than the terms of confinement for the mentally ill. In a previous study, Steadman studied a group of defendants found incompetent to stand trial to see whether they “beat the rap.” A defendant who is too mentally ill to comprehend the nature of a criminal trial is committed to an institution until he or she is able to understand the proceedings, at which point the criminal process resumes. Steadman found that those defendants deemed “non-dangerous” spent less than two years in mental institutions, whereas the “dangerous” were confined an average of two years and two months. If they were subsequently convicted at trial, they faced the possibility of additional prison time. Do you beat the rap by taking the mental health route? Steadman argues not: “Mental hospitals are simply an alternative place to do time.”22 In short, the system is not turning hordes of dangerous psychotics loose on society. Danger to the Community How dangerous are the criminally insane? We have had some natural experiments on this question as a result of court decisions that forced the release of criminal defendants. A 1971 decision forced the clinical reassessment of 586 inmates of Pennsylvania’s Fairview State Hospital for the Criminally Insane. More than twothirds were eventually released. Over the next four years, 27 percent were rearrested, but only 11 percent for a violent crime. Including some others who were rehospitahzed for a violent act, a total of 14.5 percent of those released proved to be dangerous.23 A recent review of the literature concluded that the recidivism rate for persons acquitted by reason of insanity was “no greater than that of felons.”24 Once again we encounter our old friend the prediction problem from Chapter 4. A decision to release or confine a person alleged to be criminally insane involves a prediction about his or her future behavior. Does he or she pose a danger to the community? The success rate in predicting the dangerousness of the criminally insane is no better than in other areas of criminal justice. Because only 14.5 percent of the Fairview inmates committed another violent act, you could argue that the experts were wrong about the other 85.5 percent. This translates into six false-positives (people unnecessarily locked up) for each true positive. Abolish the Insanity Defense? For many people, “abolishing” the insanity defense is a slogan, much like abolishing plea bargaining. As we have seen, changing the law on the insanity defense can be done in six different ways. Each of these changes involves complex legal and practical problems. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 204 CHAPTER 8 Abolishing or modifying the insanity defense raises fundamental issues about the criminal law. Our justice system rests on the principle that the accused is innocent until proven guilty and that the prosecution must prove guilt beyond a reasonable doubt. To prove guilt, the prosecution must establish three things: The accused committed the act (actus reus), the accused had criminal intent (mens rea), and a connection exists between the two (that is, the accused did it and intended to do it).25 The key issue with the insanity defense is the mens rea requirement. The criminal law has long recognized different degrees of intent. The law distinguishes between a planned murder (first degree) and one committed in the heat of passion (second degree). It further recognizes that some homicides occur without any criminal intent (manslaughter). Differences in the degree of intent are reflected in the severity of the punishment. First-degree murder carries a potential death sentence in many states. The law has historically recognized that some people lack criminal intent because they do not understand what they are doing. We readily accept the idea that the five-year-old who picks up the loaded handgun and accidentally kills his brother does not have criminal intent. He simply does not understand the nature and consequences of firing the gun. Another example is the truly deranged person who kills because he or she hears voices from another planet. Like the child, this person does not appreciate the criminal nature of his or her act.26 Unfortunately, not all cases are as simple as these examples. The legal system has struggled for 170 years to develop a formula for resolving questions about the accused’s mental state. The principle of insanity first entered English law in 1843 with the famous M’Naughton case, which established the “right-wrong test”: Did the accused understand the difference between right and wrong? Because this test is somewhat crude, legal scholars have attempted to develop alternatives, such as the “irresistible impulse” test. Laypersons are often mystified by the arcane distinctions among those alternatives, none of which resolves the basic problem created by the intersection of medical diagnoses, with their inevitable shades of gray, and the legal system, with its requirement of an absolute verdict of guilt or innocence.27 Attempts to abolish the insanity defense run up against the mens rea requirement. Suppose a state adopted a law that said “mental condition shall not be a defense to any charge of criminal conduct.” This might be interpreted as abolishing the mens rea requirement altogether. The prosecution would not have to prove anything about the accused’s mental state, only that he or she did the crime. Among other things, it would wipe out the distinction between firstdegree murder, second-degree murder, and manslaughter. It is doubtful that even the most ardent opponents of the insanity defense seriously want to take this approach, which would probably be found unconstitutional. Wisconsin (1909) and Mississippi (1928) abolished the insanity defense early in the previous century. In both cases, the new laws were declared unconstitutional under the due process clauses of their state constitutions.28 A more limited restriction on the use of the insanity defense would be that an affirmative plea of not guilty by reason of insanity could not be raised. The Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 205 crucial distinction here is between affirmative and ordinary defenses. An ordinary defense is simply an attempt to show that the prosecution has failed to connect the accused with the crime. An affirmative defense is that, yes, the accused did kill the victim and intended to, but he or she does not have criminal responsibility for the act (because of self-defense, duress, or insanity). What would happen if we abolished insanity as an affirmative defense? As one review of the literature pointed out, we have little empirical evidence on this question because so few states (five) have actually abolished the insanity defense and also because there are so few cases. Put yourself in the shoes of a defense attorney, and the answer is obvious. You would directly attack the prosecution’s case on the basic mens rea requirement and argue that your client lacked the necessary criminal intent. You would not win every time, of course, but you might win some of the time, with the net result that your client would be fully acquitted. The people who oppose the insanity defense would find this outcome even more outrageous than our current situation. Even if you did not win, you would force the prosecution to address your client’s mental state. In short, the basic issues underlying the insanity defense would reappear in a different form. There is no getting around it; the mens rea requirement is a bedrock principle of our legal system. The GBMI alternative has three serious flaws. First, it strikes indirectly at the mens rea requirement, introducing the slippery notion that the accused had partial, but not complete, criminal intent. Second, it creates a lesser and included offense that judges and juries may choose simply as a compromise verdict. They may decide that the accused probably did something wrong and deserves some punishment, but they are unwilling to bring in a verdict of guilty on the top charge. The GBMI option would allow them to split the difference and choose the lesser verdict. Finally, the GBMI verdict does not guarantee treatment for the person who has been declared mentally ill. Prisons and jails are ill-equipped to treat mentally ill inmates. Some estimates have found that 16 percent of all state and federal prisoners suffer from a mental illness, which would be about 240,000 people in 2012. Thirty-six percent of state prison inmates reported having been involved in a fight since their admission, compared with 24 percent of other inmates. The figure was even higher among jail inmates. More seriously, almost a quarter of state prison inmates had been admitted to an overnight mental hospital or treatment program since they entered prison. Half had received a prescribed medication, and slightly less than half 44 percent) had received counseling or therapy (although the report did not indicate the length or quality of those programs).29 For the GBMI offenders, we can imagine the sequence of events. The convicted offender is sentenced to prison, where his or her behavior becomes a problem. He or she is then transferred to the state mental hospital for treatment. After his or her behavior stabilizes, he or she is transferred back to prison, where, because of the brutal conditions, his or her behavior again deteriorates. The cycle then repeats itself. This is not to suggest that our mental hospitals are models of effective treatment and humane custody. They are not, and much of the “treatment” is meaningless. But sending an allegedly mentally ill person to prison is an even worse solution. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 206 CHAPTER 8 The GBMI option has already proved to be a bogus reform. A 1981 Illinois law added GBMI as an additional verdict, retaining the traditional insanity defense. In Cook County (Chicago), NGRI verdicts actually increased from 34 to 103 between 1981 and 1984. At the same time, GBMI verdicts went from 16 in 1982, the first year the option was available, to 87 in 1984. This represents a variation on the baitand-switch problem that we have previously discussed, whereby a new law is advertised as affecting one category of crime but actually affects other less serious ones. GBMI verdicts appear to have involved people who would otherwise have been found guilty, not defendants who would have been found NGRI.30 The Illinois GBMI law also failed to provide medical treatment for GBMI defendants. An evaluation found that “not a single GBMI offender has been transferred from the Department of Corrections to the Department of Mental Health” for treatment. The law only “complicated rather than resolved [the] fundamental issues surrounding the insanity defense.”31 A study of the GBMI verdict in another state reached similar conclusions: There was no reduction in the number of insanity pleas, jurors were more likely to be confused about the legal issues, many offenders receiving a GBMI verdict were placed on probation, and offenders had no assurance that they would receive any medical treatment.32 The real function of the GBMI option is symbolic to appease public opinion by providing a verdict with the word “guilty” in it. The public has little concern for the details of what actually happens to a mentally ill criminal defendant. Basically, it wants a symbolic statement of guilty. In practice, as Richard Moran points out, the GBMI verdict has as much meaning as “guilty but brown eyes.”33 In sum, the various proposals to abolish or modify the insanity defense fail on two counts. Not only do they fail to reduce crime because the insanity defense is so rare, but they create new problems for the criminal justice system. The evidence is overwhelming that the insanity defense is not a loophole that allows thousands of dangerous offenders to beat the system. This leads us to our next proposition: 20 PROPOSITION Abolishing or limiting the insanity defense will have no impact on serious crime. Richard Moran offers the best verdict on the issue of the insanity defense: “The insanity defense has been misinterpreted and abused”—not by criminal defendants but “by politicians and journalists who mistakenly attack it as a major loophole in the law.”34 A review of attempts to revise or abolish the insanity defense over the past twenty years concluded that all of these changes have had “little effect,” in large part because “there is no real evidence that it is broken.”35 But it isn’t just the politicians. It’s also the public, with a lot of help from the news media. The entire insanity defense episode in the 1980s illustrates the powerfully distorting effect of a national-level celebrated case on the criminal justice system. The Hinckley verdict touched off public outrage, media commentary, Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 207 demands for law reform, and a fair amount of criminal justice research. And then, after a few years, the entire issue just vanished. Today, the public seems not the least bit interested in the issue. At the same time, criminal justice scholars have almost completely lost interest in the subject, and there is precious little published research on the subject since the early 1990s. ABOLISH OR REFORM BARGAINING? Did the Supreme Court lob a hand grenade into the criminal justice system with two rulings of plea bargaining in 2012? The decisions held that convicted offenders have a right to challenge their convictions because of ineffective assistance of counsel, in violation of the Sixth Amendment guarantee of “Assistance of Counsel for his defence.” Some commentators called the decisions “landmark” because of the potential impact on the routine processing of cases, in which 95 percent of all cases are settled through plea bargains. We have an answer to the question of the impact of these two decisions, and it is based on what we know about the reality of plea bargaining. Let’s take a good critical look at this key part of the criminal justice system. Everyone seems to dislike plea bargaining (everyone except the participants, that is). Conservatives believe that it is a major loophole through which criminals beat the system and avoid punishment. Liberals, meanwhile, believe that it is the source of grave injustices: a hidden and unregulated process by which prosecutors offering better deals to some types of defendants than others; with defense attorneys making private deals with prosecutors rather than fighting for their clients; and with defendants being coerced into waiving their right to a trial.36 We should be concerned about plea bargaining. After all, it is how most criminal cases are resolved. In 2006 (the most recent data available), 95 percent of all convictions in large urban courts were obtained through a guilty plea.37 Additionally, our justice system is different from European countries. A comparative study of plea bargaining in the United States, Germany, France, and Italy concluded that “[p]rosecutors’ overly broad and essentially unchecked discretion remains perhaps the most distinctive feature of the American criminal justice system.”38 Uncontrolled discretion is usually an invitation to trouble. In many respects, the process of plea bargaining makes a mockery of justice. Defendants routinely plea to a crime that is not the one they were originally charged with (although it may be a lesser and included offense). Some critics argue that plea bargaining encourages overcharging, where the prosecutor files additional charges to be used as negotiating chips in the bargaining process. Overcharging does not typically involve completely false charges, but instead adding charges that the prosecutor has no expectation of winning, or possibly lesser and related charges that are simply chips the prosecutor can trade away. In court the judge goes through the charade of asking the defendant whether any promises have been made in return for the guilty plea, and the defendant answers no. But of course, a deal has been made.39 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 208 CHAPTER 8 Efforts to address the problems associated with plea bargaining fall into two categories. Some people want to abolish it altogether. Others want to keep it but reform it through rules and regulations. In 2003 a columnist for the conservative Cato Institute, Timothy Lynch, argued “The Case against Plea Bargaining.” Citing the evidence of a “trial penalty” for defendants who refuse to plea bargain and insist on a trial, he argued that plea bargaining is unconstitutional because the government (in this instance, prosecutors) penalize criminal defendants who exercise their constitutional right to a trial. He concluded that plea bargaining should be abolished completely.40 We will discuss the trial penalty phenomenon shortly in our discussion of King County, Washington, but for the moment we can define it as additional punishments for defendants who choose trial over a plea. Other commentators argue for regulating plea bargaining to preserve its benefits while curbing actual or potential abuses. This approach is consistent with the general view that it is impossible to abolish any form of discretion in the criminal justice system—police discretion, for example—and that attempting to do so would only produce undesirable adaptations.41 Regulating plea bargain essentially involves developing rules to guide its use. Alarmists have always warned that the criminal process would “collapse” without plea bargaining to efficiently process all the cases. We will examine attempts to regulate plea bargaining later. Day-in, Day-out Plea Bargaining Let’s begin with a brief description of what plea bargaining is. Basically, it is a negotiated plea of guilty by the defendant, typically in return for some concession on the part of the prosecutor. Plea bargains fall into two basic categories: charge bargaining and sentence bargaining. In charge bargaining, the defendant agrees to plead guilty to a lesser charge. The effect usually means that the defendant avoids a prison term, often by avoiding a mandatory sentencing provision, receives a shorter prison term, or in the case of a plea to a misdemeanor, avoids a felony conviction with all of the collateral consequences of that. A plea to a misdemeanor might, however, include a jail term of less than a year. Sentence bargaining, meanwhile, involves a guilty plea in return for an agreement by the prosecutor to recommend a particular sentence to the judge. The recommendation cannot bind the judge’s decision, but in the courtroom work group such recommendations are typically accepted. Plea bargaining has endured over many decades because it offers something for everyone. The prosecutor is guaranteed a guilty verdict; the defense attorney can claim to have gotten a better deal than appeared possible at the outset; and the defendant gets a sentence less severe than could have been the case. Particularly important, both sides get the certainty of an agreement, and both sides avoid the time, expense, and uncertainty of a trial. All sides, including the judge, get the benefit of efficiently processing a large number of criminal cases. One of the key elements of the process that makes it work efficiently is the early rejection of cases by prosecutors. This removes cases in which there is some genuine uncertainty about the facts, leaving a core of cases in which guilt is almost certain (these are called “no-brainers” in the King County, Washington, example we discuss). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 209 With these considerations in mind, now let’s take a look at Alaska’s famous attempt to abolish plea bargaining. Abolishing Plea Bargaining: Alaska Tries For a few years in the 1970s, there were loud calls to abolish plea bargaining. Public outrage reached its peak in 1973, when Vice President Spiro Agnew, in perhaps the most famous plea bargain in American history, avoided going to prison on extortion charges by pleading no contest to a lesser charge of tax evasion. In 1973, the National Advisory Commission on Criminal Justice Standards and Goals recommended that plea bargaining be abolished within five years.42 It didn’t happen. When we take a closer look at plea bargaining, including Alaska’s ban, we will begin to understand why. The most celebrated attempt to abolish plea bargaining occurred in Alaska, when Attorney General Avrum Gross abolished plea bargaining in the entire state.43 On July 3, 1975, he issued a memorandum that read, in part: I wish to have the following policy implemented with respect to all adult criminal offenses in which charges have been filed on or after August 15, 1975: 1) District Attorneys and Assistant District Attorneys will refrain from engaging in plea negotiations with defendants designed to arrive at an agreement for entry of a plea of guilty in return for a particular sentence… (4)While there continues to be nothing wrong with reducing a charge, reductions should not occur simply to obtain a plea of guilty. (5) Like any general rule, there are going to be some exceptions to this policy [which must be approved by the attorney general’s office]. The new policy attacked plea bargaining in three ways: forbidding sentence bargaining and charge bargaining and establishing procedures for supervising plea negotiations. Gross’s action was possible in part because of the special structure of Alaska’s criminal justice system. Local prosecutors are appointed by and work under the supervision of the state attorney general. In other states, local prosecutors are elected and enjoy almost complete political and administrative independence. What happened when Alaska banned plea bargaining? Contrary to the standard warnings of alarmists, the criminal courts did not collapse. The traditional defense of plea bargaining is that it is necessary to handle the heavy load of cases and that the courts will grind to a halt if it is abolished. The Alaska courts, however, continued to function pretty much as they had before. Additionally, there was little change in the rate of guilty pleas. Trials increased, from 6.7 to only 9.6 percent of all cases.44 Other dire predictions also did not come true in Alaska. Many experts argue that discretion cannot be eliminated and that attempts to abolish it only serve to move it to other parts of the justice system. Restricting a prosecutor’s discretion to accept guilty pleas, according to this argument, would shift discretion Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 210 CHAPTER 8 “upstream” to police officers or “downstream” to judges.45 As we will see shortly, the Alaska ban did shift discretion upstream to prosecutors at the initial screening stage. Overall, the ban did not disrupt the processing of criminal cases or cause any major problems. The rate of dismissals, for example, remained consistently high: about 52 percent before and after the ban. Dismissals in drug possession and morals cases increased, but this seemed to be a function of the low priority prosecutors gave these cases rather than anything related to the ban on plea bargaining.46 There were some unexpected positive effects on case processing. One surprising result was that cases actually moved through the courts faster than before. The expectation had been that there would be more delays because of more trials and a greater backlog of cases. In Anchorage, the mean disposition time for felony cases was cut in half, dropping from 192.1 months to 89.5 months. Case processing time also dropped in Fairbanks and Juneau. We can explain this unexpected outcome. Restrictions on plea bargaining eliminate certain alternatives and uncertainties about which one to choose. With less to negotiate, the prosecutor and defense attorney reach agreements more quickly. Or to put it another way, the courtroom work group has a smaller menu to choose from.47 If anything, this experience illustrates the capacity the courtroom work group to adapt to any major change in the formal rules of the justice system. Another positive result, which was highlighted in a follow-up study of the ban, was that the ban forced the police to improve the quality of their investigations. Prosecutors’ initial screening decisions became the key point under the ban and “set the tone for all subsequent actions” in a case. In short, the ban did shift discretion upstream to an early prosecutor’s decision. As a result, the police had to present stronger evidence for the screening decision. In a reevaluation of the ban, a veteran police officer admitted that before 1975 police work had been “very sloppy,” and initial weaknesses in a case were resolved through charge bargaining. The ban on charge bargaining forced police officers to “become good investigators.”48 For our purposes, the most significant result was that the ban on plea bargaining had no impact on cases involving defendants charged with serious crimes or those with substantial criminal records. An evaluation concluded that “the conviction and sentencing of persons charged with serious crimes of violence such as murder, rape, robbery, and felonious assault appeared completely unaffected by the change in policy.” In short, dangerous offenders had not been beating the system beforehand through plea bargaining (any more than they had in San Diego), and the ban did not change that. The ban did, however, have an unexpected effect on less serious cases, and resulted in more severe sentences. This is another variation of the bait-and-switch problem. Our wedding cake model helps explain this process. Policies directed toward second-layer cases actually have their greatest impact on third-layer cases. As Zimring and Hawkins argue, bait and switch occurs when a new policy promises to deal with serious crime but ends up affecting mainly less serious ones.49 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 211 Under normal circumstances, third-layer cases—low-level assaults or burglaries where little of value is stolen—are often settled with pleas to even lesser offenses and sentences of probation. A get-tough policy, such as a ban on plea bargaining, however, closes off this avenue of mitigation and produces both convictions on more serious charges and harsher sentences than would normally be the case. Third-layer cases are moved into the second layer, where they are treated more harshly. The problem, of course, is that these third-layer cases were not the original target of the policy change, and there is no impact on serious crime. From the standpoint of our inquiry, the important question is whether the Alaska ban on plea bargaining affected the crime rate. The evaluation did not examine this issue. Nonetheless, the mere fact that the ban had no real effect on the disposition of cases involving serious crimes suggests that it probably had no impact on the crime rate. DID THE BAN SURVIVE? Over the long haul, did the Alaska ban on plea bargaining survive? Or did it wither away and die at the hands of the court room work group? A 1991 follow-up evaluation by the Alaska Judicial Council found a mixed and complex situation. Officially, the ban remained in force, although it had been modified in certain respects by subsequent attorneys general and was affected by a law creating presumptive sentencing. To a great extent, however, the ban had “decayed” and that charge bargaining, although officially banned, had become “fairly common.” Dismissals and charge reductions had increased after ten years. Nonetheless, some important positive results survived. Screening decisions remained the critical point in the process and resulted in higher standards for sending a case forward. The resulting pressure for improved police investigations also continued.50 In the end, then, the 1975 ban of plea bargaining demonstrated how the courtroom work group adapts to a major change. On the one hand, some positive results survived. But on the other hand, traditional practices (notably charge bargaining) resurfaced. Regardless, however, there is no evidence that a major loophole that allowed many dangerous criminals to beat the system ever existed, and the ban had no impact on crime. Reforming Plea Bargaining in King County, Washington Today few people seriously believe that we can abolish plea bargaining, and only a few commentators even discuss the idea seriously (but see our previous discussion of Timothy Lynch). Similarly, no one seriously proposes abolishing police discretion, or completely eliminating all judicial discretion in sentencing (as some people proposed in the 1970s, with something called “flat-time” sentencing.) Discretion is inevitable, and most experts acknowledge that it can serve some good purposes. The realistic approach to the problems associated with discretion is to regulate it with formal policies and procedures.51 The dominant approach to addressing the problems with plea bargaining involves some form of regulating the process to curb actual or potential abuses. Deirdre M. Bowen examined the reforms in King County, Washington (Seattle), Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 212 CHAPTER 8 which included a structured process for handling cases, with some clear rules on plea negotiations and higher levels of supervision for attorneys. The King County reforms resemble those in other jurisdictions, and for that reason it serves as an example with broad national relevance. The new process uses a horizontal approach to prosecution, with separate prosecutorial units handling the different stages of prosecution. Criminal cases are initially handled by the Charging Unit, which screens cases in terms of seriousness, the strength of the evidence, and the defendant’s prior record. The primary consideration in setting the charge is whether the case can be won. Cases are then passed to the Early Plea Unit (EPU) which tries to negotiate a guilty plea. Cases that are not settled through a guilty plea are then handled by the Trial Unit. The main rules for plea negotiations are that plea negotiations are not available to any case that bypasses the EPU, that no plea negotiations should occur at trial, and that plea offers must be in writing. These changes were designed to eliminate the traditional informality of plea negotiations and, through the EPU (which, in practice, consists of a single prosecutor), centralize negotiations and presumably make them more consistent.52 The net result was a high level of consistency in case processing. Seventy percent of cases were settled by the EPU. The courtroom work group, consistent with our discussion in Chapter 3, operated with a high degree of collegiality, cooperation, and an understanding of the rules of the game. “Overwhelmingly,” Bowen found in her interviews, members of the work group “took the view that they should work together to settle on the appropriate charge and punishment.” Significantly, the facts of a case were rarely in dispute, and the work group called most of them “no brainers.” In part, this was the result of a conservative charging policy, in which charges were filed only on charges the attorneys felt they could win at trial. Overcharging, adding additional charges to be traded away in plea negotiations and that many plea bargaining critics see as one of the systems’ worst abuses, was explicitly discouraged. Bowen’s findings provide more recent confirmation of most of the important points about how the courtroom work group operates, which we discussed in Chapter 3, but which were based on much earlier research. In practice, the work group adapted to and worked around the formal rules of governing the handling of criminal cases. Even though they were not supposed to, trial attorneys were willing to negotiate pleas in some cases, often because of their workloads. Defense attorneys admitted they monitored the calendars of trial prosecutors for this reason. There were some opportunities for negotiating pleas with the supervising prosecutor (rather than the EPU), and this was mainly because of what Bowen terms “history”: “a long-standing personal relationship” among members of the courtroom work group. In other words, personal relationships that had developed over time trumped the formal rules of the prosecutor’s office. Such relationships, and their impact on everyday work, are characteristic of courtroom work groups. The implementation of a more formal process, with some clear rules, did not in the end make any significant changes in the handling of cases. There may have been greater efficiency because the rules were clear to everyone, and there was Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 213 greater openness and less chance of misunderstanding because of the rules of the game. Higher levels of supervision, moreover, enhanced consistency among cases. It is likely that, as is the case with rule on police discretion and sentencing guidelines, formal rules eliminated the exceptional cases that really did depart from the norm and discredited the system.53 Particularly important, Bowen’s study documented the existence of the trial penalty for not pleading guilty. Defendants faced the possibility of additional criminal charges, sentencing enhancements, or an undesirable sentencing recommendation. These penalties can involve significant consequences in terms of longer prison terms. The interesting point is that these threats exist at all in a system where reforms were designed to eliminate such informal procedures. The survival of the trial penalty is powerful testimony of the power of the courtroom work group to adapt to change.54 Bowen’s qualitative study of the King Country process provides a richer and more nuanced view of plea bargaining that previous studies. Although it found that about 70 percent of all the cases were no-brainers, around which there was almost complete agreement among the courtroom work group participants, there was some disagreement and conflict in the other 30 percent. Other studies have tended to overstate the degree of consensus, or at least have left that impression. Bowen cites the defense attorneys’ frustration and even anger at times at how they were treated by prosecutors in certain parts of the process. Nonetheless, when faced with frustrating obstacles defense attorneys were able to find opportunities to create advantages for their cases. Plea Bargaining and Crime The case of King County, Washington, illustrates an important point that is directly relevant to the purpose of this book. Plea bargaining has proven to be a phantom loophole. Despite the criticisms, it is not a device by which large numbers of serious offenders are beating the system. Our discussions of the criminal justice wedding cake (Chapter 2) and the role of the courtroom work group (Chapter 3) help explain why plea bargaining survives. As Malcolm Feeley suggests, we should think of the criminal courts as supermarkets, handling a high volume of business with fixed prices.55 Criminologist Robert Bohm, in an essay on the “McDonaldization of Criminal Justice,” labels the process “McJustice” an “efficient, calculable, predictable” process, doing business much like a fast food restaurant.56 Once the work group reaches a consensus about the proper “going rate” for different kinds of cases, not much actual bargaining is necessary. A National Center for State Courts report characterizes this consensus as a shared “norm of proportionality” about the seriousness and worth of different cases.57 All of the studies of plea bargaining have found a high degree of regularity and predictability in the disposition of cases. One of the most systematic studies concluded that you can predict the outcome of most cases, if you know the seriousness of the top charge and the defendant’s prior record.58 Most important, in King County, Washington, and the two prosecutors’ officers we discussed at the beginning of this chapter, the key consideration for prosecutors is whether they Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 214 CHAPTER 8 can win the case. Those cases they feel they can’t win, they reject. The important point here is that the offenders in those cases would not be convicted no matter what system exists. Even in some hypothetical system where plea bargaining was abolished and every case went to trial, those defendants would not be convicted. A lot of those defendants probably did the crime, but there is not sufficient evidence to convict them. But we can’t blame plea bargaining for the fact that they go free. Courtroom work groups have accommodated themselves to sentencing guideline laws. Many observers have feared that by restricting the discretion of judges, these laws would radically shift power to prosecutors and result in more charge bargaining or more trials. Studies of the impact of sentencing guideline jurisdictions, however, have found that most courtroom work groups conduct their business pretty much as before, with relatively little change.59 This is but another example of both the enduring strength of routine plea bargaining practices and the power of the courtroom work group to accommodate major change. EVADING HARSH MANDATORY SENTENCES: TWO CASE STUDIES The Case of Sex Offender Notification Laws One of the traditional criticisms of plea bargaining, and particularly charge bargaining, is that it allows defendants to evade mandatory prison sentences or other harsh punishments. This view is part of the conservative argument that plea bargaining is one of the major “soft” spots in the criminal process. Sentencing guidelines have been developed for the federal criminal justice system and among several states for the specific purpose of ensuring consistency in sentencing. There is evidence from two sources indicating that in certain circumstances prosecutors and the courtroom work group have been able to circumvent mandatory sentencing requirements. The first involves a particularly harsh South Carolina sex offender registration and notification law enacted in 1995. Juveniles convicted of sex offenses were required to register their home address, school, and other personal information with the county sheriff twice a year. The authorities were required to notify their schools, victims, and nearby child-related business or organizations of their sex offender registration status. The law was amended in 1999 to include lifetime online registration. A study analyzed the disposition of 3,176 juvenile sex offense cases, 20,424 assault cases, and 2,212 robbery cases in the state between 1990 and 2004. For sex offense cases, there was an increase in plea bargains to non–sex offense charges, which allowed defendants to avoid the registration and notification requirements. There was also an increase in plea bargains to lower sex offense charges. Interestingly, the likelihood of a plea bargain fell as the age of defendants age increased, Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 215 indicating a special interest in protecting younger defendants from harsh registration and notification requirement. Overall, there was a “large and statistically significant” increase in plea bargains for juvenile sex offenses. By comparison, there was only a “trivial” increase in plea bargains in assault cases. Finally, there was no increase in plea bargains for robbery offense cases.60 This evidence suggests that plea bargaining was a convenient means by which the courtroom work group could evade the harsh punishment of sex offender registration and notification, and after 1999 the penalty of lifetime registration. It seems clear that members of the work group shared a consensus of opinion that most, but not all juveniles initially charged with sex offenses should not suffer severe punishments. The fact that plea bargains were greater among the younger juveniles clearly suggests a shared greater compassion among members of the work group for people they feel may not be as fully responsible for their criminal conduct. The second example involves the mandatory minimum sentencing requirements in the federal sentencing guidelines. In 2011, in response to a directive from Congress, the U.S. Sentencing Commission issued a report on the impact of mandatory minimum sentences. We have already discussed the impact in Chapter 7. Here we focus on the report’s findings about evasion of the mandatory requirements.61 The Commission studied thirteen federal districts, conducting interviews with prosecutors and defense attorneys. Charge bargaining was the exception rather than the rule, although there were some variations across districts. One particularly important finding involved Section 851 notices of intent to file mandatory sentencing enhancements (that is, enhancements to the sentences for the underlying offense). Prosecutors did not automatically file them in nine of the thirteen districts, reserving for later the discretion to file or not. Defense attorneys saw this maneuver as a strategy for coercing a guilty plea, as prosecutors could always threaten (subtly or not so subtly) to file the enhancement charge. Section 851 notices were filed in every case in two districts, and in one district they were always filed, but often withdrawn as part of plea negotiations. Finally, in one district they were rarely filed on one district, and reserved as a “hammer for the worst offenders.” In short, federal courtroom work groups responded in various ways to the mandatory sentencing provision, with some clearly undermining the intent of the sentencing guidelines. The Supreme Court Rules on Plea Bargains: New Day or Business as Usual? At the beginning of our discussion of plea bargaining, we mentioned the two 2012 Supreme Court decisions that some commentators believe will throw a monkey wrench into the traditional plea bargaining process. Each of the decisions held that convicted offenders had a right to challenge their convictions on grounds of ineffective assistance of counsel in violation of the Sixth Amendment. Alarmists envisioned thousands of convicted offenders bringing appeals of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 216 CHAPTER 8 their plea bargains, jamming already crowded court dockets, further undermining the certainty of punishment, and in an unknown number of cases setting free convicted offenders. Will such a disaster befall the criminal courts? Let’s take a look at the two cases. In Missouri v. Frye, Frye was arrested for his fourth driving with a revoked license offense, which meant he faced a felony charge and possible four-year prison term. The prosecutor offered to accept a plea to a misdemeanor and a ninety-day jail term. Frye’s defense attorney never communicated the offer to Frye, and it expired. While waiting for his preliminary hearing, Frye was arrested again for the same offense. With no plea offer available, he pled guilty to a felony and received a three-year prison sentence. He appealed his conviction, claiming ineffective assistance of counsel because his lawyer did not tell him about the original plea offer in the earlier case. The Supreme Court agreed and remanded his case to the lower courts for reconsideration. In Lafler v. Cooper, Lafler faced a murder charge, but his attorney advised him to reject a plea offer that involved a possible four- to seven-year sentence, arguing that given the facts of the case, he would never be convicted of first-degree murder. At trial, however, he was convicted of first-degree murder and received a sentence of fifteen to thirty years in prison. He appealed, claiming ineffective assistance of counsel under the Sixth Amendment, and the Supreme Court agreed.62 Some commentators argued that these were landmark decisions that would drastically alter the entire process of plea bargaining. Previously, relatively little attention had been given to the quality of plea negotiations by defense attorneys, including such issues as the actual communication between attorneys and their clients and the judgments made by attorneys about the best course of action. Will the courts be flooded with appeals claiming ineffective assistance of counsel in plea bargains? If so, what will the impact on plea negotiations themselves be? Law professor Cynthia Alkon argues that little will change, and we agree. Her experience as a prosecutor confirmed what we know about plea bargaining: most defendants do not contest their guilt; the factually weak cases have already been screened out, as we pointed out in Chapters 2 and 3. As we have already mentioned several times, the reason 95 percent of criminal convictions are settled by plea bargains is because for the screening process leaves only those cases where guilt is not in doubt. All that is left is bargaining over the exact charge and the punishment. In fact, defense lawyers around the country told Professor Alkon that “nothing has changed,” and it’s “business as usual” in the court houses.63 Alkon makes the persuasive argument that the two Supreme Court decisions will have little impact because few defense attorneys would make the mistakes that were at issue in the two cases: failing to present an offer to the defendant in the first case and making such a bad prediction about a trial in a high stakes first-degree murder case as happened in the second. We should quickly add that defense lawyers do make mistakes. Some are even incompetent, grossly so on occasion. There was, after all, the infamous case of the Texas defense attorney who fell asleep at trial in a death penalty case.64 But such degrees of incompetence are the classic celebrated cases—that’s why these two cases went to the Supreme Court. Day in and day out, however, it is business as usual in the Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 217 criminal courts, there is a high degree of consensus about what a case is worth, and the mistakes that do occur do not have the enormous significance of those made in the two Supreme Court cases. To bring this issue back to the purpose of this book, the two cases will not result in thousands of convicted offenders being freed and thereby able to return to the streets and lives of serious crime. In the end, the evidence is overwhelming: Plea bargaining is not a loophole that lets many dangerous offenders beat the system. Therefore, we can safely posit our next proposition: 21 PROPOSITION Abolishing or even significantly reforming plea bargaining will not reduce serious crime. RESTRICT APPEALS Conservatives believe that postconviction appeals undermine the criminal justice system in several ways. First, some offenders win and thereby escape punishment altogether. Second, appeals delay final resolution of a case and undermine the deterrent effect of the criminal law. Deterrence theorists, as we discussed in Chapter 6, believe that punishment must be swift and certain for the deterrent effect to work. Third, appeals transform the criminal process into a “sporting contest,” a game rather than a search for truth. Liberals, on the other hand, see the absence of finality as a virtue. Protection of individual rights requires recognition of the possibility of error in the criminal justice system, and the existence of a procedure for correcting mistakes.65 Years ago, Judge Macklin Fleming argued that granting numerous postconviction appeals represented a quixotic search for “perfect justice.”66 He listed twenty-six possible challenges available in California on search-and-seizure grounds alone, including but not limited to moving for dismissal of all charges at the preliminary examination; appealing a denial of that motion to the state supreme court; moving to have the case transferred to federal court on grounds that federal civil rights had been violated; objecting to admission of the evidence at trial; if convicted, appealing for postconviction relief in the state supreme court; and if that failed, appealing the conviction in federal court. Nor is this all. Fleming points out that “in almost every one of the foregoing steps the losing defendant can petition for a rehearing or reconsideration by the court that ruled against him.”67 Thus, innumerable potential challenges to a criminal charge can be made just on Fourth Amendment search-and-seizure issues. If these fail, many postconviction appeals are possible—for example, on grounds of inadequate assistance of counsel in violation of the Sixth Amendment. For the imaginative and determined offender, the possibilities are seemingly endless. As we shall see, however, the key word here is seemingly. In the real world of criminal justice, Judge Fleming’s nightmare scenario occurs only rarely, and even then, typically only in death penalty cases. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 218 CHAPTER 8 Limiting Appeals Conservatives believe that limiting appeals will close a loophole that undermines the criminal justice system. The 1981 Attorney General’s Task Force on Violent Crime recommended a three-year statute of limitations on habeas corpus petitions and a prohibition on federal courts’ holding evidentiary hearings “on facts which were fully expounded and found in the state court proceeding.”68 Habeas corpus is one of the cornerstones of Anglo American law. The British Parliament formalized it with the Habeas Corpus Act of 1679, and Americans wrote it into the U.S. Constitution. Article III, Section 9, of the Constitution reads, “The privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it.” The writ of habeas corpus is a device to challenge the detention of a person taken into custody. A person under arrest or in prison may demand an evidentiary hearing before a judge to examine the legality of the detention. The writ of habeas corpus is purely procedural: It guarantees only a right to a hearing and says nothing about the substance of the issues in the case. The Supreme Court greatly expanded the ability of an offender convicted in a state court to obtain a rehearing in federal court in the 1963 decision Fay v. Noia.69 One of the underlying issues here is the role of the Supreme Court in a federal system. Conservatives have long argued that the court, particularly under Chief Justice Earl Warren, intruded into matters that should be left to the states and to legislatures. Liberals, on the other hand, saw the court as the principal guardian of individual rights. The Reality of Postconviction Appeals In actual practice, postconviction appeals play a minor role in the administration of criminal justice. A national study of 10,000 habeas corpus petitions filed in federal district courts by offenders challenging their convictions found that only 1 percent succeeded. Federal judges dismissed 63 percent (usually for failing to exhaust state remedies) and ruled against the offender on the merits of the case in 35 percent. The typical habeas corpus petition was filed by someone convicted of a violent offense (23 percent had been convicted of murder) and sentenced to a long prison term. The most frequent claim raised was ineffective assistance of counsel.70 How many convicted offenders “abuse” the right to appeal? The study found a rate of fourteen habeas corpus petitions for every 1,000 prisoners—or only 1.4 percent of all imprisoned offenders. This figure confirms what we have already learned: that most convictions are obtained through plea bargains in which the facts of the case are not seriously contested. The study also found that the impact of habeas corpus petitions on the workload of the courts has been greatly exaggerated. These appeals represented only 4 percent of the civil case filings in U.S. District Courts.71 In short, Macklin Fleming’s nightmare vision of convicted offenders endlessly filing appeals on all of the theoretically possible issues is pure fantasy. Appeal Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 219 of felony convictions through habeas corpus petitions is much like the insanity defense: a procedure that raises a lot of fascinating legal issues but is rarely used in practice and rarely successful even when tried. There are two important exceptions to this rule. People on death row do exhaust every possible appeal, and appeals may drag on for fifteen years or longer. The fact, however, is that mistakes do occur with the death penalty. In early 2000, the governor of Illinois ordered a halt to all executions in the state because thirteen people sentenced to die had their convictions overturned—as many as had actually been executed since the death penalty was restored in that state. The possibility that innocent people might be wrongfully executed dramatizes the importance of keeping open all possible avenues of appeal. A second exception involves the “writ writers,” prisoners who file innumerable appeals in federal court challenging their conviction or prison conditions. These individuals represent a tiny proportion of all inmates. The few who succeed in winning their release make a negligible contribution to the crime rate, even in the worst circumstances. Two Limits on Appeals In 1996, Congress passed two laws limiting the right of convicted offenders to file appeals: the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act. The laws were important indicators of the state of public opinion on crime and justice in the mid-1990s. Although this book has always presented limiting appeals as a conservative crime control policy, the two laws had substantial support among liberal Democrats in Congress and were strongly supported by President Bill Clinton, a liberal Democrat. Both laws attacked what its supporters believed were serious problems with postconviction appeals. The Antiterrorism and Effective Death Penalty Act reflected the belief that endless appeals undermine the deterrent effect of the death penalty in two different ways. First, the argument is that it extends the time between the crime and the punishment, thereby nullifying both swift and certain justice. Second, it overturns a number of convictions, thereby absolutely nullifying certain justice. The facts of capital punishment confirm the impact of appeals on death sentences. In 2011, 137 inmates were removed from death row, and only forty-three (31 percent) were executed. Those inmates had been in prison an average of 198 months (or more than sixteen years) between before being executed. Slightly more than half as many (twenty-four) died in prison of other causes. (And many of the deaths occurred because they had been in prison so long because of their protracted appeals.) Fifty-one (37 percent) had their death sentences overturned on appeal (8 had the conviction itself overturned, and forty-three had the death sentence overturned). Finally, nineteen (14 percent) had their sentences commuted.72 The facts of the impact of appeals on death sentences are clear. The 1996 law limited appeals by essentially barring second or third habeas corpus appeals once a first appeal had been decided, along with several restrictions. Opponents of the law denounced it as an attack on the historic right of habeas corpus, not only denying that right to an extremely vulnerable population but also in cases of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 220 CHAPTER 8 literal life and death. What effect did the law have? The answer is difficult to determine because just a few years after the law was passed, the country began turning away from capital punishment. After a peak of 315 in 1996, the number of death sentences declined to 140 in 2005 and only 80 in 2011. Executions, meanwhile, fell from a peak of 98 in 1999, to 60 in 2005 and 43 in 2011.73 There is no reason to think that the restrictions on appeals caused the number of death sentences to decline. More important from our standpoint, there is also no reason to think that the limitations on appeals had any impact on homicides. In Chapter 6 we discussed the conclusion of the National Academy of Sciences that after decades of research there is no evidence that capital punishment decreases, increases, or has any effect on homicide rates.74 The other law restricting appeals, the Prison Litigation Reform Act, does not concern us here. It severely limited the right of prisoners to file appeals over prison conditions, and in this respect has no implications for deterring criminal conduct. In the end, the available facts about the use of appeals do not support the conservative argument that multiple appeals contribute to crime. Conservatives argue that appeals delay “finality” and thereby undermine the deterrent effect of the criminal process. Several things are wrong with this argument. First, appeals are filed in so few cases that they cannot have any broad impact on criminal justice. Second, as we have also learned, many factors undermine the deterrent effect (low probability of arrest, a relatively high probability of the charges being rejected or dismissed, whether the threat of punishment even works for certain categories of offenders, and so forth). Appeals are at best a minor factor. Like the insanity defense, successful postconviction appeals are rare events. On occasion, a convicted offender is released through a successful appeal. But these are the few celebrated cases that do not represent the general pattern in the criminal justice system. Therefore, our next proposition is: 22 PROPOSITION Limiting habeas corpus appeals of criminal convictions will have no effect on serious crime. CONCLUSION One of the traditional conservative beliefs about the criminal justice system has been that many criminals beat the system through loopholes that allow them to return to the streets and prey on innocent citizens. Our review of the evidence, however, indicates that the insanity defense, plea bargaining, and postconviction appeals are not loopholes. To be sure, mistakes do occur, and dangerous people do commit major crimes after having once been in the system. But these are the classic celebrated cases. The evidence is that prosecutors take major offenders seriously, and always have, and that the insanity defense, plea bargaining, and postconviction appeals are not major loopholes. To reduce crime, we need to look elsewhere. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 221 NOTES 1 Dawn Beichner and Cassia Spohn, “Prosecutorial Charging Decisions in Sexual Assault Cases: Examining the Impact of a Specialized Prosecution Unit,” Criminal Justice Policy Review 16 (December 2005): 461–498. 2 U.S. Department of Justice, An Exemplary Project Major Violator Unit—San Diego, California (Washington, DC: Department of Justice, 1980). 3 Some examples are described in William F. McDonald, Plea Bargaining: Critical Issues and Current Practices (Washington, DC: Department of Justice, 1985). 4 McDonald, Plea Bargaining. 5 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009 (Washington, DC: Department of Justice, 2013), Table 24. 6 National Opinion Research Center, General Social Surveys, 1972–2002, cited in Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, online edition, Table 2.47. 7 Jack Hinckley, Breaking Points (Grand Rapids, MI: Chosen Books, 1985). 8 Randy Borum and Solomon M. Fulero, “Empirical Research on the Insanity Defense and Attempted Reforms: Evidence toward Informed Policy,” Law and Human Behavior, 23, no. 1 (1999): 117–135. 9 Reported in Rita J. Simon and David E. Aaronson, The Insanity Defense: A Critical Assessment of Law and Policy in the Post-Hinckley Era (New York: Praeger, 1988), 166. 10 Simon and Aaronson, Insanity Defense, Table 3.2, 40. 11 Borum and Fulero, “Empirical Research on the Insanity Defense,” 120. 12 Ibid., 27–28. 13 American Psychiatric Association, American Journal of Psychiatry 140 (1983): 681–688. 14 Stuart M. Krischner and Gary J. Galperin, “Psychiatric Defenses in New York County: Pleas and Results,” Journal of the American Academy of Psychiatry and the Law 29 (No. 2, 2001): 194–201. 15 Valerie Hans, “An Analysis of Public Attitudes toward the Insanity Defense,” Criminology 24 (May 1986): 393–414. 16 Jeffrey S. Janofsky, Mitchell H. Dunn, and Erik J. Ruskes, “Insanity Defense Pleas in Baltimore County: An Analysis of Outcome,” American Journal of Psychiatry, 153, no. 11 (1996): 1464–1468. 17 Newsweek, 24 May 1982. 18 For a good study of this subject, see Egon Bittner, “Police on Skid Row: A Study in Peacekeeping,” American Sociological Review 32 (October 1967): 694–715. 19 Rights of the Mentally Disabled: Statements and Standards, rev. ed. (Arlington: American Psychiatric Publishing, 2002). 20 Baxstrom v. Herold, 383 U.S. 107 (1966). 21 Henry J. Steadman et al., Before and After Hinckley (New York: Guilford, 1993), 58–61, 97–99. 22 Henry J. Steadman, Beating a Rap? Defendants Found Incompetent to Stand Trial (Chicago: University of Chicago Press, 1979), 104. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 222 CHAPTER 8 23 Terence P. Thornberry and Joseph E. Jacoby, The Criminally Insane: A Community Follow-up of Mentally III Offenders (Chicago: University of Chicago Press, 1979). For another study with similar results, see Henry J. Steadman and James J. Cacozza, Careers of the Criminally Insane (Lexington, MA: Lexington Books, 1974). 24 Borum and Fulero, “Empirical Research on the Insanity Defense,” 121. 25 Norval Morns, Madness and the Criminal Law (Chicago: University of Chicago Press, 1982). 26 Ibid. 27 Ibid. 28 Grant H. Morns, The Insanity Defense: A Blueprint for Legislative Change (Lexington, MA: Lexington Books, 1974). 29 Bureau of Justice Statistics, Mental Health Treatment of Inmates and Probationers (Washington, DC: Department of Justice, 1999). 30 John Klofus and Ralph Weisheit, “Guilty but Mentally Ill: Reform of the Insanity Defense in Illinois,” Justice Quarterly 4 (March 1987): 39–50. 31 Ibid. 32 Kurt M. Bumby, “Reviewing the Guilty but Mentally Ill Alternative: A Case of the Blind ‘Pleading’ the Blind,” Journal of Psychiatry and the Law 21.2 (1993): 191–220. 33 Moran, “Insanity Defense,” 81. 34 Ibid., 77–78. 35 Borum and Fulero, “Empirical Research on the Insanity Defense,” 133. 36 The traditional criticism of plea bargaining is Abraham Blumberg, Criminal Justice Issues and Ironies, 2nd ed. (New York: New Viewpoints, 1979). The best recent study is McDonald, Plea Bargaining. 37 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2006 (Washington, DC: Department of Justice, 2010), Table 11, and the discussion at 10. 38 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2004. Yue Ma, “Prosecutorial Discretion and Plea Bargaining in the United States, France, Germany, and Italy: A Comparative Perspective,” International Criminal Justice Review 12 (2002): 22–52. 39 On the “copout” ceremony, see Jonathan D. Casper, American Criminal Justice: The Defendant’s Perspective (Englewood Cliffs, NJ: Prentice Hall, 1972), 81–86. 40 Timothy Lynch, “The Case Against Plea Bargaining,” Regulation (Washington, DC: The Cato Institute, 2003). 41 Samuel Walker, Taming the System: The Control of Discretion in Criminal Justice, 1950–1990 (New York: Oxford University Press, 1993). 42 National Advisory Commission on Criminal Justice Standards and Goals, Courts (Washington, DC: Government Printing Office, 1973), 46. 43 Michael L. Rubinstein, Stevens H. Clarke, and Teresa J. White, Alaska Bans Plea Bargaining (Washington, DC: Department of Justice, 1980). 44 Rubinstein et al., Alaska Bans Plea Bargaining. 45 Norval Morns and Gordon Hawkins, Letter to the President on Crime Control (Chicago: University of Chicago Press, 1977), 61. 46 Rubinstein et al., Alaska Bans Plea Bargaining. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CLOSE THE LOOPHOLES 223 47 This point is argued in Walker, Taming the System, 95–96. 48 Teresa White Carns and John Kruse, Alaska’s Plea Bargaining Ban Re-Evaluated (Anchorage: Alaska Judicial Council), 16. 49 Franklin E. Zimring and Gordon Hawkins, Crime Is Not the Problem, Lethal Violence in America (New York: Oxford University Press, 1997), 19. 50 Carns and Kruse, Alaska’s Plea Bargaining Ban re-Evaluated. 51 Walker, Taming the System. 52 Diedre M. Bowen, “Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt Plea Bargaining Strategies to Increased Formalization,” Justice Quarterly 26 (March 2009): 2–29. 53 This point is argued in Walker, Taming the System. 54 Bowen, “Calling Your Bluff,” 6, 9, 23, 26. 55 Malcolm W. Feeley, “Perspectives on Plea Bargaining,” Law and Society Review 13 (Winter 1979): 199. 56 Robert M. Bohm, “‘McJustice:’ On the McDonaldization of Criminal Justice,” Justice Quarterly 23 (March 2006): 127–146. 57 Brian J. Ostrom and Roger A. Hanson, Efficiency, Timeliness, and Quality: A New Perspective from Nine State Criminal Courts (Williamsburg, VA: National Center for State Courts, 1999). Available on the National Center for State Courts website. http://www.ncsc.org/. Accessed February 15, 2014. 58 Peter F. Nardulli, James Eisenstein, and Roy B. Flemming, The Tenor of Justice: Criminal Courts and the Guilty Plea Process (Urbana: University of Illinois, 1988). 59 Bureau of Justice Assistance, National Assessment of Structured Sentencing (Washington, DC: Government Printing Office, 1996), 98–100. Jeffrey T. Ulmer, Social Worlds of Sentencing (Albany: State University of New York Press, 1997). 60 Elizabeth J. Letourneau, Kevin S. Armstrong, Dipankar Bandyopadhyay, and Debajyoti Sinha, “Sex Offender Registration and Notification Policy Increases Plea Bargains,” Sexual Abuse: A Journal of Research and Treatment 25 (no 2, 2012): 189–207. 61 U.S. Sentencing Commission, Report to the Congress: Mandatory Minimum Sentences in the Federal Criminal Justice System (Washington, DC: U.S. Sentencing Commission, 2011). 62 Missouri v. Frye, 566 U.S. ___ (2012). Lafler v. Cooper, 566 U.S. ____ (2102). 63 Cynthia Alkon, Plea Bargaining, “Just as It Ever Was,” The Mayhew-Hite Report on Dispute Resolution and the Courts 10, No. 4 (May 2012). 64 “Inmate Whose Lawyer Slept Gets New Trial,” The New York Times, June 4, 2002. 65 Herbert Packer, “Two Models of the Criminal Process,” in Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968), 149–173. 66 Macklin Fleming, The Price of Perfect Justice (New York: Basic Books, 1974). 67 Ibid. 68 U.S. Department of Justice, Attorney General’s Task Force on Violent Crime (Washington, DC: Government Printing Office, 1981), 58. 69 Fay v. Noia, 372 U.S. 391 (1963). 70 Bureau of Justice Statistics, Federal Habeas Corpus Review Challenging State Court Criminal Convictions (Washington, DC: Department of Justice, 1995). See also Victor Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 224 71 72 73 74 CHAPTER 8 E. Flango, Habeas Corpus in State and Federal Courts (Williamsburg, VA: National Center for State Courts, 1994). Data on appeals can be found at the website of the Administrative Office of the United States Court: http://www.uscourts.gov/Home.aspx. Accessed February 15, 2014. Bureau of Justice Statistics, Capital Punishment, 2011—Statistical Tables (Washington, DC: Department of Justice, 2013), Tables 9, 10. Ibid. Current data are available at the Data Death Penalty Information Center website: www.deathpenaltyinfo.org. Accessed February 15, 2014. National Academy of Sciences, Deterrence and the Death Penalty (2012). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PART III The Middle Ground: Guns and Victims T here are two things liberals and conservatives agree on. First, crime victims have certain rights that should be protected, and they are entitled to programs and services that will address the needs that result from their victimization. With only a few exceptions, liberals and conservatives agree with most of what the victims’ rights movement has been doing on behalf of victims. Second liberals and conservatives agree that guns violence is a major part of the crime problem. They disagree strongly, however, on the exact nature of the problem and what should be done about it. Liberals focus on guns and want to limit their availability. Conservatives focus on criminals who use guns and want to get tough with them. Some conservatives even want to increase the number of guns people carry. The policies each side recommends reflect their fundamentally different assumptions about crime and criminals. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 9 Protect Crime Victims VICTIMS IN THE CRIMINAL JUSTICE SYSTEM The Crime Victims’ Rights Movement From the beginning of the modern criminal justice system, the crime victim was the forgotten person. Unless required to testify in court (and we know how few cases actually go to trial), victims typically received little if any follow-up from the police or prosecutors. They had no input into plea bargains, which they often did not even know about or have a voice in, and no right to express their views to the judge about the sentence. In 1982, the chair of the President’s Task Force on Victims of Crime declared: “The neglect of crime victims is a national disgrace.”1 All of that began to change in the 1970s. A victims’ rights movement arose with powerful political support, advocating new policies that would give victims certain formal legal rights and to provide services and financial compensation for them. The change over the last forty years has been dramatic. Every state has passed a variety of victims’ rights laws. Some even added victims’ rights amendments to their constitutions. In Oregon, to take just one example, there were twenty crime victims services providers in 2006 that received funds through the state’s Crime Victims’ Services Division and that almost certainly did not include numerous programs maintained by religious and civic groups that did not receive any state funds.2 The U.S. Justice Department established the Office for Victims of Crime (OVC) in 1983 to provide a broad range of services and information, and many states have similar units in their attorneys general offices. The OVC estimates that there are 27,000 victims’ rights laws across the country. Congress passed a Victims of Crime Act in 1984, the Violence Against Women Act in 1994, and then passed a federal Crime Victims Act in 2004, which include a right to protection, notification about legal proceedings, right to attend and to speak at those proceedings, a right to restitution, and other rights.3 226 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 227 In short, the status of the victim in the U.S. criminal justice system has been completely transformed. As it developed over the years, the victims’ rights movement itself has changed in important ways since the 1982 President’s Task Force on the Rights of Crime Victims. That report reflected the conservative political perspective of President Ronald Reagan’s administration and included many favorite conservative crime control proposals, such as modifying the exclusionary rule (see our discussion in Chapter 5), that were not directly related to crime victims. The victims’ rights movement has instead given increased emphasis to the needs of specific populations of victims, including women, the elderly, the disabled, juvenile runaways and thrownaways, racial and ethnic minorities, and people who are lesbian, gay, transgendered, or bisexual. The 2013 report by the U.S. Office for Crime Victims, Vision 21: Transforming Victims Services, reflects the growth and maturation of the crime victims’ movement. Chapter 1 of the report calls for “Forging a Future Informed by Research,” noting the “dearth of data and research in the field.” Chapter 3, meanwhile, ambitiously calls for efforts to reach “all victims.”4 Finally, it calls for a process of systematic strategic planning to guide the future growth and quality of victims’ services and programs. The Historical Background In modern Anglo-American law, the crime victim has had no formal role in the criminal process. The prosecutor represents the public interest, including that of the victim. This is why, in some states, cases are formally titled “The People versus.” As an American Civil Liberties Union (ACLU) handbook on The Rights of Crime Victims explains, “The victim is not a formal party to a criminal proceeding.”5 It was not always this way. Until the mid-nineteenth century, crime victims represented themselves, bringing their own cases before magistrates and judges. The office of the modern prosecutor gradually emerged in the nineteenth century (as did modern policing) and assumed the role of representing the public in general and crime victims in particular.6 A professional criminal justice system, where disinterested public officials handle criminal cases, arose for several reasons. First, it establishes the idea that a crime is an offense against society as a whole and not just an individual. Second, it removes the element of vengeance from the handling of a case. A public official will be free of anger and personal animosity toward the offender. Third, professionals bring training and experience to the job, which increases the likelihood that justice will be done. The victims’ rights movement challenged the exclusion of the victim from direct participation in the criminal justice system. Its leaders argued that police and prosecutors did not inform victims about important events related to their cases, such as bail hearings or even trials; victims had no say in plea bargain agreements, sentencing, or parole decisions. An early survey in Alameda County, California (Oakland), for example, found that only about 12 percent of victims Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 228 CHAPTER 9 had ever been notified that an arrest had been made in their case.7 The alienation and anger of crime victims over being excluded fueled much of the early victims’ rights movement. Although conservatives dominated the victims’ rights movement at the beginning, groups advocating for specific victim populations were also important, and some had different political perspectives. The women’s rights movement was particularly important in this regard, and it helped to secure new laws and policies to protect the victims of domestic violence and rape, such as mandatory arrest laws for domestic violence, shelters for victims, and counseling programs for offenders. Mothers Against Drunk Driving (MADD), as we discussed in Chapter 6, led a national anti-drunk driving crusade to protect the victims of drunk driving. The Goals of This Chapter This chapter examines the goals, achievements, and limitations of the victims’ rights movement. What reforms have been proposed? Which ones have been adopted? Do victims’ rights laws work? If so, which ones, and why? Were they good ideas in the first place? And we will also look at some reforms that really have benefitted crime victims. Finally, and most important for the purposes of this book, do crime victims’ laws and programs help to reduce crime? VICTIMS’ RIGHTS TODAY: LAWS AND PROGRAMS The victims’ rights movement has been successful in achieving significant legislative victories. By the early 1990s, every state had passed some kind of victims’ rights law, more than thirty had amended their constitutions to protect and advance the rights of crime victims, and there an estimated 27,000 victims’ rights law altogether. Box 9.1 presents the victims’ rights amendment to the Arizona state constitution, which includes some, but not all, of the new laws and procedures that now exist. In the following section, we will take a quick look at the major categories of new laws and procedures on victims’ rights. Constitutional and Statutory Guarantees of Victims’ Rights One major goal of the victims’ rights movement has been to guarantee rights either through a constitutional amendment or a statute. See, for example, the victims’ rights amendment to the Arizona state constitution in Box 9.1 It includes provisions that are common to almost all victims’ rights laws and constitutional amendments, including particularly a right to notification about court proceedings, a right to be heard at those proceedings. Placing victims’ rights in a constitution gives them a more solid legal foundation than simply passing a Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS BOX 9.1 229 STATE OF ARIZONA CONSTITUTION, ARTICLE 2, SECTION 2.1 A) To preserve and protect victims’ rights to justice and due process, a victim of crime has a right: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse throughout the criminal justice process. To be informed, upon request, when the accused or convicted person is released from custody or has escaped. To be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present. To be heard at any proceeding involving a post arrest release decision, a negotiated plea, and sentencing. To refuse an interview, deposition, or other discovery request by the defendant, the defendant’s attorney, or other person acting on behalf of the defendant. To confer with the prosecution, after the crime against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition. To read presentence reports relating to the crime against the victim when they are available to the defendant. To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim’s loss or injury. To be heard at any proceeding when any post conviction release from confinement is being considered. To a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence. To have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims’ rights and to have these rules be subject to amendment or repeal by the legislature to ensure the protection of these rights. To be informed of victims’ constitutional rights. new law, which potentially could be found to be unconstitutional or simply repealed. There have been several attempts to add victims’ rights to the U.S. Constitution, but none has been successful. Victims’ Services Every state and many local governments have created agencies and programs that provide direct services to crime victims. At the same time, many private non-profit agencies also provide services, such as shelters for domestic violence victims. The Minneapolis Police Department, for example, distributes a handout listing the range of service agencies in the community, ten of which maintain twenty-four-hour hotlines in cases of emergencies.8 Two of the most common services around the country are hotlines and shelters for the victims of domestic violence. The 2012 national census of shelters and services for women surveyed 1,643 agencies, a figure that indicates how well-established such programs have become across the country.9 Every state maintains a program for financial compensation of crime victims. Victim and witness assistance programs, designed to help crime victims deal with being a witness in a criminal trial, are also extremely popular. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 230 CHAPTER 9 EVALUATING THE IMPACT OF CRIME VICTIMS’ LAWS AND PROGRAMS The impact of crime victims’ laws and programs can be evaluated from three different perspectives. Impact on Crime Victims. The first criterion for assessing the impact of any crime victims’ law or program is its direct or indirect impact on crime victims. Does a particular law or program achieve its stated objectives? Does it help victims in any tangible way? What is the evidence regarding the impact? Impact on the Criminal Justice System. A second criterion involves the impact of a law or program on the criminal justice system. Does it affect the system in any way? Does it improve the operations of the criminal justice system in any measureable way, or does it create new problems? Does it, for example, create inefficiencies that impede the functioning of the system? If so, what is the evidence on this issue? Or, as we will discuss later, does it improve the justice system by enhancing confidence, trust, and legitimacy? Crime Reduction. The third criterion involves crime reduction. Because this is the central focus of this book, we need to discuss it in a separate section, which follows. Victims’ Rights and Crime The focus of this book is on developing effective policies to reduce crime. It is fair, then, to ask what victims’ rights services and programs have to do with that. It is a good question. As we shall see, some victims’ services have a direct impact on crime and victimization. Others, however, may only have an indirect effect at best. Finally, some programs are unlikely to have any direct or indirect effect on crime. Victim compensation programs, which provide monetary compensation for victims’ losses, for example, are not likely to reduce crime. Programs designed to provide advice on how to avoid being a victim of crime are obviously likely to have a direct effect. The Arizona Department of Public Safety, for example, has information on its website on how to “Reduce Your Risk” of sexual assault. A Philadelphia program for elderly crime victims provides funds to help install better locks and other safety devices that are likely to prevent future victimization.10 Shelters and other services for runaway or thrown-away juveniles may help reduce their chance of being victimized while alone and out on the street, including sexual victimization.11 In addition to these direct crime reduction effects, some crime victims’ programs may also have an indirect effect. Most important in this regard are the victims’ voice laws. To the extent that giving victims an active role in the justice system helps them feel respected, it is also likely to increase their trust and confidence in the system. This, in turn, is likely to enhance the legitimacy of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 231 the criminal justice system. We have already discussed the importance of legitimacy in several chapters of this book, see for example, Chapter 6, p. 135, and will discuss it in much greater detail in Chapter 12. Experts on legitimacy argued that if people have a greater sense of legitimacy, they are more likely to cooperate with the justice system in practical and important ways. They are more likely to report crimes and neighborhood problems to the police; they are more likely to give the police information of offenders and to serve as witnesses in crime. All of these actions may increase arrests, prosecutions, and convictions—in short, to help reduce crime. SERVING SPECIAL POPULATIONS OF CRIME VICTIMS The major change in the development of victims’ rights movement over the years has been the growing attention to special populations of victims. In the beginning of the movement, there was a strong tendency to talk about “victims” as a vast undifferentiated group. Women, particularly with regard to domestic violence, were the first distinct group to receive attention as crime victims, but today the list of groups has expanded significantly. The Vision 21 report by the Office for Victims of Crime reports that “[s]eismic attitudinal shifts in American culture have made populations of previously underserved victims more visible, such as minors who are victims of domestic sex trafficking; victims with disabilities; lesbian, gay, bisexual, transgender, and queer or questioning (LGBTQ) victims; and older victims of sexual abuse.”12 The shift to an emphasis on special populations allows policy makers and service providers to focus on the special circumstances and needs of each group. It hardly needs to be said that runaway juveniles, American Indians, and elderly people in nursing homes are different people in different circumstances, with different problems and needs. The crimes they suffer are different and preventing those crimes requires different approaches. Box 9.2 lists the major special populations that have become the focus on the victims’ rights movement. BOX 9.2 © 2015 Cengage Learning Previously Underserved Populations of Crime Victims Women Juvenile runaways and thrown-aways People with disabilities People who are elderly Native Americans Sex-trafficking victims Lesbian, bisexual, gay, and transgendered (LBGT) communities Child sex abuse victims Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 232 CHAPTER 9 Women The 2012 National Census of Domestic Violence Shelters and Services provides a valuable perspective on the achievements of the crime victims’ movement. On September 12, 2012, it surveyed 1,643 local programs across the country. That day, these programs served a total of 64,324 people. Of that group, 35,323 used shelters or emergency housing, and 29,001 received nonresidential services. Eighty percent of the clients received some form of children’s support or advocacy; 53 percent received some assistance related to court proceedings, including accompaniment to court or advocacy; and 20,821 hotline calls were received. In addition, there were 10, 471 requests for services that went unmet; 65 percent of those involved requests for housing.13 The sheer number of such agencies across the country is powerful testimony to how deeply entrenched are victims’ services just related to women and domestic violence. The high volume of services provided every day, moreover, testifies to the need for such services. Public concern about domestic violence coincided with the birth of the victims’ rights movement in the 1970s. Before then, domestic violence had not been recognized as a major social problem. The attention of women’s advocates and policy makers focused on police response to domestic violence incidents. The police had traditionally taken a no-arrest approach, treating domestic assaults not as a crime. Women’s advocates challenged this practice in a number of jurisdictions, arguing that a no-arrest policy denied women equal protection of the law. The settlement of one case in Oakland, California, required the Oakland Police Department to develop a new policy requiring an arrest where there was probable cause of a felonious assault.14 The idea of mandatory arrest in domestic violence incidents gained considerable support across the country, and the result was an intense national debate over the best policy for the police. Although some advocates argued for a mandatory arrest policy, others supported an arrest preferred policy that left police officers with some discretion over whether or not to make an arrest, based on the circumstances of the situation.15 Advocates of mandatory arrest in domestic violence incidents believed that it would reduce reoffending by arrested assailants. An experiment in Minneapolis by the Police Foundation appeared to confirm this belief. Subsequent studies, however, found mixed results, with no clear pattern that arrest rather than no arrest prevented further assaults. At present, there is no convincing evidence on the crime reduction effects of arrest.16 As the debate over mandatory arrest continued, police departments across the country adopted formal policies on the handling of domestic violence incidents. This was a dramatic change from the past when departments had no formal policies of any sort. Today, written policies on domestic violence are nearly universal in policing. (Written policies on a range of critical incidents, including use of force and vehicle pursuits, has become the standard law enforcement approach to controlling police discretion and reducing misconduct.)17 The most common policy today mandates arrest where there is clear evidence Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 233 of a felonious assault but grants police officers discretion in the handling of less serious incidents. A 2008 report found that twenty-two states and the District of Columbia had mandatory arrest laws; another six had arrest-preferred laws, and eleven had laws guiding officer arrest discretion.18 In addition to new police arrest policies, prosecutors developed written policies, and in some instances special units, to handle domestic incidents. The Seattle City Attorney, for example, maintains a special Domestic Violence Unit to handle misdemeanor domestic assault cases.19 States also passed new sentencing provisions for domestic violence. Some states passed laws covering all aspects of domestic violence, from police response to prosecution and sentencing. At the same time, services for the victims of domestic violence by private nonprivate agencies proliferated, including hotlines for crisis situations, shelters for victims and their families, and counseling programs for both victims and abusers. PROTECTION ORDERS Protection orders (also often called restraining orders) forbidding an offender from having any contact with the victim are commonly used in domestic conflict situations and are designed to both prevent repeat assaults and provide assurance and security to victims. Before the victims’ rights movement, there were some significant legal problems with the enforcement of protection orders. Generally, the violation of a protection order is a misdemeanor, and a police officer cannot make an arrest unless it occurs in his or her presence. This requires the victim to obtain a warrant for the violator’s arrest before an arrest can be made. In cases where the victim feels threatened but the violator is not present, the requirements limit the ability to make an immediate arrest.20 Because of frustration with the limits on police arrest powers related to protection orders, many states have revised their law to permit an arrest without observing the violation. Washington state law now provides that “[a] peace officer shall arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated [a protection] order …”21 The victim who has obtained an order must establish that a valid order exists, and people are advised to keep a copy with them at all times. A quick web search of local prosecutors’ offices around the country reveals that many, if not most, have detailed information pages on protection orders, which indicates the now-established commitment to this process as a service to crime victims. A study of protection orders in one state, involving women who had obtained protection orders, found them to be generally effective, although there were some implementation problems. The study interviewed 213 women, equally divided among urban and rural areas at three-week, three-month, and six-month intervals. Half of the women reported that the protection order was violated in some way (either by property damage, threats, or physical violence). Other studies have found violation rates ranging from 23 to 70 percent, for an average of 40 percent. Nonetheless, the subjects as a whole experienced significantly lower incidents of violence. Among the urban women, “violence severity” scores dropped from an average of 16.9 in the six months before the order to only 3 in the six months Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 234 CHAPTER 9 after the order went into effect. The women also reported lower rates of distress, loss of sleep, and fear of future harm. The one problematic finding was that success rates were lower in rural areas, and that arrests and prosecutions for domestic violence were also lower in those areas. Other studies have found arrest rates for protection order violations at 20 and 34 percent, but with significantly higher rates in jurisdictions where the police had a mandatory arrest policy.22 The study concluded that protective orders were effective and that “they are relatively low cost, especially when compared with the social and personal costs of partner violence.” If similar effects occur nationally, we can say that protection orders are one form of victim assistance that are effective. © 2015 Cengage Learning BOX 9.3 WOMEN AND THE NEW ORLEANS POLICE DEPARTMENT: A CASE STUDY Effectively addressing domestic violence is extremely complex, requiring coordination of different agencies, each of which needs to have adequate commitment and resources. A 2011 investigation of the New Orleans Police Department by the U.S. Justice Department found serious problems with the handling of domestic violence incidents and ordered major reforms. Although the department had a special Domestic Violence Unit, its policies were vague and inadequate on all the key procedures: how 911 operators should take calls, the procedures for preliminary investigations of crime scenes, identifying and documenting injuries to victims, and procedures for follow-up investigations. The Domestic Violence Unit was understaffed, with only three detectives for the 6,200 domestic violence calls the department received in the first half of 2010. An examination of domestic violence incident reports did not indicate that follow-up interviews of witnesses were conducted.23 The Justice Department investigation led to a consent decree requiring a number of reforms, including “clear and detailed guidelines” for handling domestic violence incidents putting a priority on victim safety, discouraging the arrest of both the alleged victim and the offender, and requiring arrest for violating a protection order. Additionally, the police department was directed to develop a working relationship with the New Orleans Family Justice Center, assign “sufficient staff” to the Domestic Violence Unit, and develop a program for additional training for all officers related to their specific duties.24 The Justice Department also investigated the New Orleans police department’s handling of sexual assault cases, and its findings closely paralleled those related to domestic violence. The department misclassified many rape and attempted rape cases, with the result that they were never investigated. Cases that were investigated were marked by inadequate documentation of incidents, including frequent failures to locate and interview witnesses. More seriously, the department’s handling of rape cases were deeply influenced by “stereotypical assumptions and judgments about sex crimes and victims of sex crimes.” The department had outdated policies on sexual assaults, and supervision of detectives was inadequate. The resulting consent decree mandated a set of reforms designed to overcome these deficiencies. The New Orleans case dramatizes the many challenges facing any effort to address the victimization of any group, not just women. Those challenges involve public agencies making a serious commitment, providing adequate staffing and resources, maintaining policies that meet current best practices from around the country, properly training and supervising front-line workers, maintaining effective relations with other criminal justice agencies, and finally developing productive working relationships with private social service agencies. These lessons apply with equal force to other special populations, including the elderly, persons with disabilities, juvenile runaways and thrown-aways, and others. The U.S. Justice Department, for example, investigated the Portland, Oregon, police department and found a number of serious problems related to the response to people with mental illnesses, including excessive use of force, inadequate training for officers, and a failure to establish good working relationships with mental health agencies.25 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 235 Illustration by Frank Irwin, © Wadsworth, Cengage Learning. In the end, the question for us is whether the many changes related to domestic violence over the past forty years have had any impact on crime. The National Crime Victimization Survey has persuasive evidence of a dramatic decline in intimate partner violence (another widely used term for domestic violence) from 1994 to 2010, falling 64 percent in that period. The data alone, however, do not permit any conclusions as to the cause of this development. The decline is part of the Great American Crime Drop, which we discussed in Chapter One. The best guess is that the various programs designed to change the response of the police and other agencies to domestic violence, along with the development of services for the victims of this particular crime, all contributed in some way and that the cumulative effect was undoubtedly significant.26 People with Disabilities There are an estimated 59 million people with disabilities in the United States. This includes people with emotional, mental, and physical disabilities. Many offensive stereotypes affect people with disabilities, for example, by labeling them as defective and as less than fully human. People with disabilities are particularly vulnerable to criminal victimization because they may not be able to understand fully what is happening to them, unable to resist, or unable to seek help. And in some cases, the offender is a person of trust, a family member, caretaker, or staff person at a nursing home or other institution. According to the National Crime Victimization Survey, people with disabilities experience violent crime at a higher rate rather than people without disabilities and are less likely to call the police to report their victimization.27 In 2010, the violent victimization rate for disabled persons was almost twice that for people without disabilities (28 per 1,000 versus 15 per 1,000). One disturbing pattern is that people with disabilities are victimized less often by strangers than people without disabilities: 33 versus 41 per 1,000, meaning that Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 236 CHAPTER 9 they are more likely to be victimized by someone they know, including family members or caretakers. And for the same reason, offenses against people with disabilities are less often reported to the police: 41 versus 53 percent for people without a disability.28 The Civil Rights Division of the U.S. Department of Justice is empowered to investigate violations of the civil rights of persons with mental illnesses or disabilities who reside in state institutions. An investigation of the New Hampshire mental health system in 2011 concluded that the system was “broken.” In fact, the state agreed with most of the findings. The Justice Department report found pervasive incidents of “day-to-day harm associated with improperly and/ or under-treated mental health conditions,” and many “serious incidents that prompt involvement with law enforcement, the correctional system, and the court system.” In particular, there was a lack of “safe, affordable, and stable community housing, including supported housing, for persons with mental illness.” The reference to “safe” community housing clearly indicates that many people with mental illnesses became the victims of crime.29 Juvenile Runaways and Thrown-aways Juveniles who are out on the street, alone and away from their homes, are found in all communities in the United States. Runaways leave home for many reasons, including physical abuse or fear of abuse, a lack of respect and emotional support, or because of their own rebellious and delinquent behavior. Some leave home because they are lesbian or gay and their parents refuse to accept that fact. The term thrown-away juveniles describes “those who are denied housing by their families or prevented from returning home by a parent or other household adult.” Both runaways and thrown-aways are symptomatic of family breakdown, including divorce and separation, which often create serious financial problems, physical, sexual or emotional abuse, conflict between the parents or step-parents, or alcohol or drug abuse, which the juvenile may then take up.30 Runaways and thrown-aways are particularly vulnerable to crime. With no shelters, they are easy targets for robbery, physical abuse, or sexual exploitation. The most immediate need is physical shelter for the night and meals. Helping them find permanent shelter and the services that will help them address past victimization, particularly sexual abuse, alcohol or drug abuse, or emotional problems arising from their situation, represents a major challenge for social services. The police are typically, the first responders to the symptoms of such problems, but a genuinely effective response requires a comprehensive response by public and private agencies.31 People Who Are Elderly With respect to crime victimization, we need to look at elderly people with a dual lens. On the one hand, they have the lowest violent crime victimization rate among all age groups. People sixty-five years old and older experience violent crime at a rate of 3.5 per 1,000, which is dramatically lower than even the Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 237 rate for fifty- to fifty-four-year-olds, 13.5 per 1,000. The rate is highest, 43.7 per 1,000 for twenty- to twenty-four-year-olds. The reasons for these differences are easy to explain. Elderly people are much less likely to be out on the street at night than younger people both because of their lifestyle and fear of crime.32 At the same time, however, the elderly are particularly vulnerable to certain crimes. The Los Angeles County District Attorney’s Office has an Elder Abuse web page that lists ten crimes against the elderly, including identify theft, telemarketing and home repair scams, healthcare fraud, and real estate fraud.33 Victimization of elderly people often involves emotional and psychological abuse and forms of neglect that may not always rise to the level of crime. A special category of elderly crime victims involves abuse of people in residential long-term care facilities. CASE STUDY: CRIME REDUCTION SERVICES FOR THE ELDERLY IN PHILADELPHIA The Elderly Victims Emergency Security Fund (EVESF) in Philadelphia is a good example of a direct service to a special population that has some direct effect on the likelihood of victimization. EVESF assists Philadelphia residents who are age sixty and older, on a limited income, and have been the victims of crime or abuse. Security funds assist them securing their home environment by replacing or repairing locks, boarding or repairing windows and doors, installing locks on windows, or even installing window security bars in extreme circumstances, and helping with other emergency measures if needed.34 An evaluation of the program found that most clients received assistance with repairing or replacing their door lock (85.4 percent), 13.1 percent received assistance with replacing a door, and 24.1 percent received assistance with measures to secure their windows. Interviews with older adults receiving the services and professionals working with them agree that the EVESF services were provided efficiently and were of high quality. Among the older adults who had previously received assistance with lock repairs/replacements 63 percent were not the victim of a crime in the year prior to the survey, and 70 percent believed that the EVESF services they received helped prevent having something stolen from them or their home. ELDER ABUSE IN LONG-TERM CARE FACILITIES A particularly serious aspect of the victimization of elderly persons is abuse in long-term care facilities. The evidence indicates that the problem is pervasive. More than 3 million people are in some form of long-term care facility, including both nursing homes and board and care homes. Shockingly, a 2000 study of nursing home residents reported that 44 percent of residents said they had been abused, and 95 percent said they had been neglected or seen another resident neglected. In a more recent study 50 percent of nursing home staff admitted to mistreating a patient either physically or mentally. Of all reported complaints of mistreatment in a 2010 report on nursing homes, 29 percent involved physical abuse and 7 percent involved sexual abuse.35 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 238 CHAPTER 9 Existing preventive measures appear to be not working as planned. Federal standards for nursing homes exist, but a 2001 report to Congress found that one in three nursing homes were cited for violations of standards and had the potential to allow harm or had actually led to harm in the previous two years.36 Native Americans Native Americans experience violent crime at twice the rate of the rest of the U.S. population. The aggravated assault rate is twenty-five per 1,000, compared with thirteen among African Americans and eight among whites. The murder rate among Native Americans, however, is the same as for the general population.37 The Vision 21 report pointed out that there are “complex jurisdictional issues, along with the cultural diversity of tribes,” that pose significant challenges to both lowering crime rates and providing victim services.38 A basic problem is the simple fact of geography. Reservations typically cover vast rural areas. Alaska Native villages are often remote and even inaccessible in winter. Many tribes operate their own tribal law enforcement agencies, and many are inadequately staffed and suffer from poor training. As a result, basic victim assistance and law enforcement are often inadequate or completely unavailable.39 A 2013 Bureau of Indian Affairs report on Making Indian Communities Safer listed the challenges ahead, many of which involved simply bringing tribal criminal justice systems up to contemporary professional standards. Those challenges include: revising out-of-date tribal criminal codes, developing adequate detention facilities to serve remote locations, improving recruitment services for tribal justice officials, adopting contemporary police technology such as computer-aided dispatch, and developing collaborative relationships with various stakeholders.40 VICTIMS’ PROGRAMS AND SERVICES The victims’ rights movement has resulted in the development of a wide variety of programs and services for crime victims. Table 9.1 presents the results of a 1994 survey indicating the prevalence of programs just in prosecutors’ offices.41 The following section examines in detail some of the more important programs and the issues surrounding them. Victim Notification One of the most important original goals of the victims’ rights movement was to keep victims informed about the status of the criminal case in which they were victimized. Victim notification procedures are designed to overcome the traditional neglect of victims and their resulting alienation from Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 239 PROTECT CRIME VICTIMS T A B L E 9.1 Victim services that jurisdictions require prosecutors’ offices to provide, 1994 Percentage of offices Full-time office (population served) Type of service All offices 500,000 or more Less than 500,000 Part-time office Notification/alert Notify victim 82 87 85 73 Notify witness 55 67 59 42 Orientation/education Victim restitution assistance 60 62 62 55 Victim compensation procedures 58 73 65 41 Victim impact statement assistance 55 78 60 40 Orientation to court procedures 41 57 48 24 Public education 15 20 17 9 Escort Escort victim 23 39 28 9 Escort witness 17 31 19 9 Property return 38 46 39 35 R eferral 32 46 37 18 Personal advocacy 17 26 22 5 Counseling/assistance Counseling 10 21 12 5 Crisis intervention 10 19 14 0 Number of offices 2,282 119 1,480 683 SOUR CE: Bureau of Justice Statistics, Prosecutors in State Courts, 1994 (Washington, DC: Government Printing Office, 1996), p. 9. the criminal justice system. In principle, notification requirements cover all the critical points in the criminal justice system: bail setting, preliminary hearings, plea bargaining, trial, sentencing, postconviction appeals, and parole hearings. Notification procedures are closely related to victim voice laws and procedures, by which victims are guaranteed a right to speak at any of key points in the system. But notification is separate to the extent that the victim may not want to speak but only to be kept informed of the status of the case. Victim notification is a sound and humane idea that was long overdue. There is absolutely no reason that the police should not keep victims informed and many reasons that they should. Mainly it would help build positive police– community relations. By 1997, about one-third of all city police departments and county sheriffs’ departments had some kind of victim assistance program.42 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 240 CHAPTER 9 Meanwhile, almost all state prosecutors (93 percent) reported in 1990 that they informed victims of the outcome of cases, compared with only 35 percent in 1974.43 There are some potential problems with victim notification, however. Most important, the notification requirements impose a significant administrative burden on police departments, prosecutors, and correctional agencies. It requires additional staff to monitor criminal cases, maintain a current contact information for all victims, and then notify them in a timely fashion. These demands are all the more challenging in today’s environment of budget stress on state and local agencies. Another problem is that some victims may not want to be contacted. The Houston, Texas, police department incorporated victim recontact program as one component in a larger “fear reduction” experiment. Police officers contacted crime victims to express sympathy and ask whether they needed any further assistance or information. An evaluation, however, found that the program achieved none of its goals. Victims who were contacted did not express any less fear of crime or greater confidence in the police, compared with victims who were not contacted. Victims with poor English skills were actually more fearful than those who were not recontacted. They did not understand why the police were contacting them and became more fearful as a result. The Houston data suggest that many victims may prefer just to be left alone, which of course is their right.44 Victim/Witness Assistance Programs Victim/witness assistance programs vary widely. Many provide emergency services in the form of shelter, security repair, financial assistance, and onthe-scene comfort. Most provide follow-up counseling. Nearly all have some form of advocacy and support services, such as intervening with the victim’s employer or landlord. Many help with insurance claims or efforts to obtain restitution. Nearly all provide court-related services concerned with the victim’s role as witness for the prosecution, such as orienting victims or witnesses to court procedures, notifying them of court dates, providing transportation to court, escorting them at the court, and providing child care. How well do these programs work? A survey of sixty-two victim service programs in North Carolina found that the state’s 1986 Fair Treatment for Victims and Witnesses Act was meeting the needs of victims “only minimally.”45 Almost all of the programs were providing referral to social, restitution, and compensation services; notification about court cases; and allowances for victim impact statements. Nonetheless, 59 percent of crime victims surveyed in the state expressed dissatisfaction with the criminal justice system. Particularly significant was the fact that about one-third were not even aware of their right to make a victim impact statement. This suggests that a major provision of the law was not being fully implemented. An evaluation concluded that the programs provided primarily witness assistance rather than victim assistance. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 241 Protecting Victims from Harm Another important service for crime victims is to protect them from harm. Many victims are fearful of the person who victimized them and worry about further violence at a court proceeding or later. For some, even seeing the offender adds to the original trauma of the crime. This issue applies to all of the special populations of crime victims we have discussed. The Minnesota crime victims law guarantees victims a right to a secure waiting area during court proceedings, a right to request that their home address not be disclosed in court, a right to request police withhold a victim’s identity from the public (although this provision raises important fair trial considerations), and a right to make a confidential request that the offender be tested for HIV. The Minneapolis Police Department, meanwhile, has a Personal Safety Referral List, which lists eighteen separate agencies or services for crime victims, three of which are related to children, and ten with twenty-four-hour hotlines for emergency situations.46 To the extent that provisions do protect victims from another offense, they are likely to reduce crime. Emergency services, such as those listed by the Minneapolis police department, particularly if they can provide temporary housing, can prevent further victimization of people who find themselves homeless and out on the street. Expanding the Victim’s Voice One of the major goals of the victims’ rights movement has been to expand the role of victims in the criminal justice process, giving them a greater voice in bail decisions, plea bargains, sentencing, and parole release decisions. Item 4 of the victims’ rights section of the Arizona constitution provides a right “[t]o be heard at any proceeding involving a post arrest release decision, a negotiated plea, and sentencing.” Adopted by California voters in 1982, Proposition 8 provided that “the victim of any crime, or the next of kin of the victim … has the right to attend all sentencing proceedings … [and] to reasonably express his or her views concerning the crime, the person responsible, and the need for restitution.”47 The U.S. Office for Victims of Crime publishes a bulletin on The Crime Victim’s Right to be Present, with current information on laws and procedures. A second bulletin covers victim input into plea agreements.48 The idea of expanding victims’ voices has several goals. One is to give crime victims a feeling of participating in the justice system and to end their feelings of isolation and alienation. Giving victims a voice is consistent with the goals of procedural justice, which we will discuss in Chapter 12. Tom Tyler and other experts on this subject argue that people are more likely to have positive feelings about a process if they feel they have an opportunity to participate in it, to express their views (having a “voice”), and thereby have some control over the outcome. Greater satisfaction with the criminal process, Tyler argues, is likely to lead to greater trust in the justice system and lower levels of law breaking.49 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 242 CHAPTER 9 Another goal is to ensure that offenders are properly punished and not allowed to get off too easily. The assumption is that the victim will object to a too-lenient plea bargain or sentence. VICTIMS’ VOICE LAWS: THE RETURN OF VENGEANCE? Opponents of victims’ voice laws fear that it brings vengeance (as opposed to justice) into the criminal process. One of the functions of a professional criminal justice bureaucracy is to ensure fair and impartial treatment of all accused persons. A professional is someone who is not emotionally involved in a case and acts impersonally on the basis of the facts and circumstances. A lawyer, for example, has a professional obligation to prosecute or defend a criminal defendant regardless of his or her personal feelings about the person or what he is accused of doing. The Supreme Court has shared some of these fears about the danger of vengeance and emotionalism distorting the criminal process. In Booth v. Maryland (1987) and South Carolina v. Gathers (1989), the Court reversed death sentences because of statements read to the jury about the victim. In Gathers, for example, the prosecutor read from religious material that had been in the possession of a murder victim and also mentioned that he was a registered voter.50 The Court ruled that this information was not related to the circumstances of the crime. Two years later, however, in Payne v. Tennessee (1991), the Court ruled that the victim impact statements in that case were not unconstitutional.51 THE IMPACT OF VICTIMS’ VOICE LAWS There is mixed evidence about the impact of victims’ voice laws. On the one hand, many victims do not take advantage of the opportunities to participate in the process. Also, those who do are not always seeking severe punishment. Nonetheless, some evidence exists of harsher punishment for offenders in cases in which victims do in fact participate. A national study found that among those victims who were notified about hearings (and many were not, as we have seen), more than 90 percent chose to make an impact statement at sentencing. Participation was much lower for other stages in the criminal process, however. Less than 40 percent of those who were notified made a statement at bail hearings, and less than 20 percent chose to attend parole hearings.52 Does victim participation make a difference in the outcome? A study of 500 Ohio felony cases between June 1985 and January 1989 found several notable effects. First, victim impact statements (VISs) were submitted in about half (55 percent) of all cases. Under the program, VIS staff solicited information from victims at the time of grand jury hearings. Only 18 percent of victims appeared at trial or sentencing, and only 6 percent exercised their right to speak. Victim participation was heavily influenced by the seriousness of the crime. Not surprisingly, VISs were filed in 73 percent of “aggravated or special felony” cases, including 81 percent of sexual offenses but only 49 percent of property crime cases, and only 13 percent of those that were handled as misdemeanors. Somewhat surprisingly, 61 percent of male victims filed a VIS, compared with only 28 percent of females.53 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 243 Of those who did submit a VIS, 60 percent requested that the offender be incarcerated. Convicted offenders were somewhat more likely to be incarcerated if a VIS was filed or if the victim appeared in court or requested incarceration (but, surprisingly, not if the victim only spoke in court). Also, filing a VIS statement, appearing in court, and requesting incarceration were associated with longer prison terms. The overall impact of the VIS law was somewhat limited, however. Case outcomes were affected primarily by offense severity and offenders’ prior record.54 A previous study of sexual assault cases in Ohio found that 60 percent of the victims made statements at sentencing. This study concluded that the statements had little effect on sentencing. A high level of agreement was noted between the sentence the victim recommended and the sentence the judge considered appropriate.55 In Pennsylvania, however, a study found that victim impact statements had a significant effect on the chances of an offender being paroled. The Pennsylvania Board of Probation and Parole denied parole in 43 percent of one hundred cases in which there was some victim input but in only 7 percent of a comparable set of one hundred cases in which there was no input.56 These findings lend support to concerns about the possible undesirable effects of victim impact statements. Whether a victim makes a statement may be a matter of chance, and it means that one offender will serve longer than another who committed the same crime because of an arbitrary factor unrelated to the crimes they committed. In any event, apart from the satisfaction that VISs may give to the victims themselves, no evidence indicates that they have any effect on serious crime. Some offenders may serve slightly longer prison terms, but as we have already seen, there is no evidence that they are any less likely to eventually recidivate. Post-Conviction Services With many crimes, the impact on the victim does not end with the conviction and sentencing of the offender. As the Oregon Department of Justice explains, “[in] most criminal cases, the guilty verdict is only the beginning. Many cases continue on through layers of appeals or are revisited at parole and psychiatric review hearings.”57 Subsequent legal proceedings include direct appeals, federal habeas corpus petitions, parole and post-prison supervision hearings, and psychiatric security review board hearings. Victim Compensation Programs The most popular victims’ rights program involves financial compensation. California passed the first crime victims’ compensation law in 1965, and today they exist in every state. The 1984 Victims of Crime Act provides federal financial support for state and local programs. Federal funds are derived from fines, assessments, and forfeitures (mainly bond forfeitures from failure to appear in court) from federal offenders. Each state receives a base amount of $500,000, whereas public and private victims’ services programs compete for additional funds.58 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 244 CHAPTER 9 There is also a National Association of Crime Victim Compensation Boards to provide professional leadership to what is now an established part of the criminal justice system. As of 2013, compensation programs around the country grant almost $500 million a year to more than 200,000 crime victims. Most of the money comes from offenders, through fines or fees imposed on convicted offenders. Federal funds provide about 35 percent of the money awarded to victims; most of that money also comes from fines and assessments against offenders.59 In the state of Washington, the covered expenses include medical and dental costs, wage replacement, prescription drug coverage, mental health treatment, and death benefits that include grief counseling and funeral expenses. The victims’ compensation fund does not cover the costs of identity theft, personal property crimes, and crime scene cleanup, or injuries sustained as a result of the victims own actions (such as provoking, inciting, or participating in the event that led to the injuries). The Washington state program makes grants of about $14 million a year (minus administrative costs).60 Evaluations of victim compensation programs have not been overly favorable, however. Many requests are denied, leaving victims frustrated and unhappy. The New York State Crime Victims Board denied as many as 60 percent of all requests in the late 1980s. The most common reason for denying claims is the failure to provide sufficient documentation of the injury or loss.61 Even more disturbing, according to William Doerner’s study of Florida crime victims, is that those who did receive compensation did not have more favorable attitudes toward the criminal justice system than did victims whose claims were denied.62 Despite the problems that do exist, victim compensation is a worthy idea that was long overdue. The heavy toll that crime takes on people gives the government good reason to maintain some kind of insurance or compensation program. To the extent that compensation improves victims’ attitudes toward the justice system, it benefits the system. There is no reason to believe, however, that victim compensation programs reduce crime. ENSURING PROFESSIONALISM IN VICTIM SERVICES The maturation of the victims’ rights movement, as the Vision 21 report indicates, includes ensuring that programs and services meet the highest professional standards. Immigration is changing the face of the United States, bringing people from many different countries and cultural traditions. In addition, traditional populations such as Native American also introduce cultural issues. One issue involves simply being able to communicate with special victim populations and also to understand and be sensitive to different cultural traditions. The Crime Victims’ Services Division in Oregon, for example, publishes a Victims’ Rights Guide in five languages other than English: Spanish, Russian, Chinese, Korean, and Vietnamese. There is also a version written for juveniles, in English, Spanish, and Russian.63 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 245 The Oregon Crime Victims’ Services Division has adopted a set of Cultural Competency Standards. The standards apply to all personnel associated with state-funded programs, including board members, directors, and administrators; all employees, volunteers, and human resource employees; and finally aspects of physical facilities and the agency’s environment. The standards call for all employees and volunteers to “[m]aintain up-to-date knowledge of the beliefs and conventions of the diverse cultural groups in the community served.” Agencies also need to engage in a “self-assessment for continuous improvement in culturally responsive interactions.” One example calls for an annual budget that reflects the “costs of providing services to the full range of community members,” including the cost of non-English speakers and translators. Employee promotions should include as one criterion a candidate’s “participation in cultural competency training, planning and participation in community events, membership on related committees or organizations.”64 As an aside, we should point out that these standards are relevant for all criminal justice agencies—police, court personnel, corrections agencies—to ensure that their personnel have adequate cultural competence for the diverse populations they serve. The Oregon Crime Victims’ Services Division tested its cultural competence standards and found that the “greatest success” resulted from establishing both formal and informal partnerships with community groups and that the informal conversations were particularly valuable in developing relationships and understanding. Evaluating the Impact of Victim Programs and Services Despite the fact that the victims’ rights movement is now forty years old, the Vision 21 report rather shockingly pointed out that there is “surprisingly little research examining how victims’ rights provisions are implemented, whether victims actually receive the rights and services to which they are entitled under law, and whether being provided with these rights and services actually increases victims’ well-being, cooperation, and satisfaction with the criminal justice system and improves criminal justice system outcomes.”65 The report urged a commitment to evidence-based crime policy making, in which existing and new programs are subjected to rigorous evaluations using the highest standards of scientific research. As we discussed in Chapter 1, evidence-based policy making has emerged as the standard in criminal justice. In 2006, Oregon began to require all crime victims service providers receiving funds through the state undergo an evaluation using three Common Outcome Measures. All grant recipients were required to survey their clients on the following questions. (1) “The services provided by this program helped me make informed choices about my situation”; (2) “After working with this agency, I have some new ideas about how to stay safe,” and “After working with this agency, I know more about resources that may be available, including how to access them”; (3) “As a result of the information I received from this agency, I better understand my rights as a victim of crime,” and “The information given Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 246 CHAPTER 9 to me by this agency helped me better understand the criminal justice system process as it relates to my case.”66 The results from agency surveys were overwhelmingly positive. In virtually all cases, only 1 percent of the client respondents disagreed. In one, for example, in response to the question that the program “Helped me make informed choices about my situation,” among 9,875 respondents 65 percent strongly agreed, 29 percent agreed, and only 1 percent disagreed. Responses from clients of the Portland Women’s Crisis Line were particularly interesting. Eighty-seven percent reported that they “feel safer,” as a result of the crisis line, and 94 percent reporting knowing more about available resources. Most of the negative responses involved the outcome of their case, as opposed to the quality of the Crisis Line’s services. In particular, the greatest source of discontent was among “victims who were unhappy with the plea bargains that the DA’s (District Attorneys) offered and the defendants accepted.” “GETTING TOUGH” ON CRIME: DOES IT HELP CRIME VICTIMS? In the early years of the crime victims’ movement, many proposals were essentially conservative “get-tough-on-crime” recommendations. This reflected the significant role of political conservatives in the early victims’ rights movement. The President’s Task Force on Victims of Crime, sponsored by President Reagan, for example, recommended legislation “to abolish the exclusionary rule,” “to abolish parole,” to permit hearsay evidence at preliminary hearings, and to authorize preventive detention.67 These were all major items in the conservative crime control agenda, and we have already discussed two of them in this book. The relevant question is, does getting tough on criminals help crime victims, either directly or indirectly? The short answer is, no, they do not. In Chapter 5, we found that repealing the exclusionary rule will not reduce crime. There is no evidence that the rule allows thousands of criminals to “beat the system,” go free, and prey again on innocent people. In Chapter 7, we found that limiting the right to bail through preventive detention is also not likely to reduce violent crime. Only 8 percent of felony defendants released on bail in 2009 were arrested for another felony while on bail, and no one has developed a reliable formula for predicting which defendants they are from among all felony defendants. Moreover, as we pointed out, sex offenders, who are the subject of particular fear among both crime victims and the general public, have the lowest reoffending rate. If these policies do not reduce crime, then they do nothing to help crime victims. In Chapter 11, we will examine whether abolishing parole would have any effect on crime. The President’s Task Force recommendation that hearsay evidence should be admissible at preliminary hearings is particularly dangerous and requires special comment. The proposal is based in part on the belief that it will protect the victim from the trauma of testifying in person at trial (and having to face the accused). Relaxing the established rules of evidence to permit hearsay testimony Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 247 at any stage in the criminal justice process sets a dangerous precedent, however. Allowing it only at preliminary hearings, moreover, is silly and misleading. It will be of little help in convicting the offender if it is inadmissible at trial.68 CONCLUSION The victims’ rights movement is one of the more significant developments in recent criminal justice history. Forty years ago, there was little concern about crime victims and few programs to assist them. Today, laws and programs designed to help crime victim are an established part of the criminal justice system in every jurisdiction. The question, of course, is whether they reduce crime. Some of the crime victim laws and programs are good ideas, providing valuable assistance to people who have been harmed by crime. Some others, however, are bad ideas that promise to help crime victims and reduce crime but in fact do neither. Some may reduce crime, but there is no persuasive evidence that they do. Providing crime victims with notification about court proceedings is a good idea that may help to build trust and confidence in the criminal justice system. The most promising outcome has involved crime prevention advice and assistance to the elderly that will help them become the victims of crime. Advice on how to avoid financial fraud and assistance on securing their places of residence are likely to reduce crime. Providing emergency shelter and counseling services to runaway or thrown-away teenagers on the street are also likely to be effective. Shelters and other forms of emergency housing for the victims of domestic violence. To date, however, we do not have any solid evidence that they achieve this objective. 23 PROPOSITION Most victims’ rights laws and programs are worthy ideas that were long overdue. Only a few, however, provide the kind of direct services that are likely to reduce crime. NOTES 1 President’s Task Force on Victims of Crime, Final Report (Washington, DC: Government Printing Office, 1982), vii. 2 Oregon Crime Victim Services Division, Report on Common Outcome Measures Use by CVSD Grantees to Collect Client Feedback, July 2010–June 2011 (Eugene: Oregon Department of Justice, 2011). 3 Office for Victims of Crime, Putting Victims First: 2009 OVC Report to the Nation (Washington, DC: Office of Victims of Crime, 2009). Available on the website of the Office for Victims of Crime at www.ojp.usdoj.gov/ovc/. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 248 CHAPTER 9 4 Office for Victims of Crime, Vision 21: Transforming Victim Services (Washington, DC: Office for Victims of Crime, 2013). 5 James H. Stark and Howard Goldstein, The Rights of Crime Victims (New York: Bantam, 1985), 19. 6 Allen Steinberg, The Transformation of Criminal justice Philadelphia, 1800–1880 (Chapel Hill: University of North Carolina Press, 1989). 7 R. Lynch, “Improving Treatment of Victims: Some Guides for Action,” in William McDonald, ed., Criminal Justice and the Victim (Beverly Hills, CA: Sage, 1976), 165–176. 8 Minneapolis Police Department, Assistance for Victims of Domestic Abuse. Accessed January 13, 2014, at http://www.ci.minneapolis.mn.us/www/groups/public/ @mpd/documents/webcontent/convert_261411.pdf. 9 National Network to End Domestic Violence (NNEDV), Domestic Violence Counts 2012: A 24-Hour Census of Domestic Violence Shelters and Services (Washington, DC: NNEDV, 2013). 10 Philadelphia Health Management Corporation, An Evaluation of the Elderly Victim’s Emergency Security Fund (Philadelphia: Center for Advocacy for the Rights and Interests of the Elderly, 2001). 11 National Center for Victims of Crime, Outreach to Underserved Teen Victims of Crime: Chart a Course for Expanding Victim Services to Youth (Washington, DC: National Center for Victims of Crime, 2012). 12 Office for Victims of Crime, Vision 21: Transforming Victim Services, 1. 13 National Network to End Domestic Violence (NNEDV), Domestic Violence Counts 2012: A 24-Hour Census of Domestic Violence Shelters and Services. 14 Nancy Loving, Responding to Spouse Abuse and Wife Beating: A Guide for Police (Washington, DC: Police Executive Research Forum, 1980). 15 Lawrence W. Sherman, Janell D. Schmidt, and Dennis P. Rogan, Policing Domestic Violence: Experiments and Dilemmas (New York: Free Press, 1992). 16 Ibid. 17 Samuel Walker and Carol A. Archbold, The New World of Police Accountability, 2nd ed. (Newbury Park: Sage, 2014). 18 David Hirschel, Domestic Violence Arrest Cases: What Research Shows about Arrest and Dual Arrest Rates (Washington, DC: Department of Justice, 2008). Bureau of Justice Statistics, Local Police Departments 2000 (Washington, DC: Department of Justice, 2004), Table 58. NCJ 196002. 19 The website is: http://www.seattle.gov/law/domestic_violence/. 20 T. K. Logan, Lisa Shannon, and Robert Walker, “Protective Orders: Questions and Conundrums,” Trauma, Violence and Abuse 7 (July 2006): 175–205. 21 Washington statute. Washington Courts, “Domestic Violation Protection Order Process” available at https://www.courts.wa.gov/dv/?fa=dv_order.ordviol. Accessed February 116, 2014. 22 T. K. Logan and Robert Walker, “Civil Protective Orders Effective in Stopping or Reducing Partner Violence,” Carsey Institute Policy Brief No. 18 (Durham, NH: Carsey Institute, 2011). 23 U.S. Department of Justice, Civil Rights Division, Investigation of the New Orleans Police Department (Washington, DC: Department of Justice, March 16, 2011). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 24 25 26 27 28 29 30 31 32 33 34 35 36 37 249 Available at the Civil Rights Division Special Litigation Section website: http:// www.justice.gov/crt/about/spl/police.php. Accessed February 16, 2014. United States v. City of New Orleans, Consent Decree Regarding the New Orleans Police Department (Washington, DC: Department of Justice, January 11, 2013). Available at the Civil Rights Division Special Litigation Section website: http:// www.justice.gov/crt/about/spl/police.php. Accessed February 16, 2014. U.S. Department of Justice, Civil Rights Division, Letter to Mayor Sam Adams, Portland, Oregon, Investigation of the Portland Police Bureau, (Washington, DC: Department of Justice, September 12, 2012). Available at the Civil Rights Division Special Litigation Section website: http://www.justice.gov/crt/about/spl/police. php. Bureau of Justice Statistics, Intimate Partner Violence, 1993–2010 (Washington, DC: Department of Justice, 2012). Bureau of Justice Statistics, Crime Against People with Disabilities, 2008–2010 (Washington, DC: Department of Justice, 2011). National Center for Victims of Crime, Disabilities and Victimization (Washington, DC: National Center for Victims of Crime, 2013). Bureau of Justice Statistics, Crime Against Persons with Disabilities, 2008–2010. U.S. Department of Justice, Civil Rights Division, Letter to Hon. Michael A. Delaney, Attorney General, State of New Hampshire, United States’ Investigation of the New Hampshire Mental Health System Pursuant to the Americans with Disabilities Act (April 7, 2011). Available at: http://www.justice.gov/crt/about/spl/documents/ New_Hampshire_MH_findlet_04-07-11.pdf. Accessed February 16, 2014. National Center for Victims of Crime, Outreach to Underserved Teen Victims of Crime: Chart a Course for Expanding Victim Services to Youth (Washington, DC: National Center for Victims of Crime, 2012), 13. Ibid. Bureau of Justice Statistics, Criminal Victimization, 2012 (Washington, DC: Department of Justice, 2013), Table 7. The Los Angeles District Attorney’s web page is available at: http://da.lacounty .gov/seniors/crimes.htm. See also the U.S. Justice Department’s web page on Financial Crimes Against the Elderly: http://www.cops.usdoj.gov/Default.asp? Item=2560. Philadelphia Health Management Corporation, An Evaluation of the Elderly Victim’s Emergency Security Fund. National Center on Elder Abuse, Research Brief: Abuse of Residents of Long Term Care Facilities (Washington, DC: National Center on Elder Abuse, n.d.). Bureau of Justice Statistics, Criminal Victimization, 2008 (Washington, DC: Department of Justice, 2009), Table 4. Catherine Hawes, Testimony, U.S. Senate, Elder Abuse in Residential Long-Term Care Facilities, June 18, 2002. Available on the National Center on Elder Abuse website (under Reports and Studies), www.ncea.aoa.gov. U.S. House of Representatives, Committee on Government Reform, Abuse of Residents Is a Major Problem in U.S. Nursing Homes (Washington, DC: July 30, 2001). Bureau of Justice Statistics, Criminal Victimization, 2012, Table 7. Bureau of Justice Statistics, American Indians and Crime (Washington, DC: Department of Justice, 2004). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 250 CHAPTER 9 38 Office for Victims of Crime, Vision 21: Transforming Victim Services, 12–13. 39 Bureau of Indian Affairs, Crime Reduction Best Practices Handbook 2012, Making Indian Communities Safer (Washington, DC: Bureau of Indian Affairs, 2013). 40 Ibid. 41 Bureau of Justice Statistics, Prosecutors in State Courts, 1994 (Washington, DC: Department of Justice, 1996), 9. 42 Bureau of Justice Statistics, Law Enforcement Management and Administrative Statistics, 1991, xix. 43 Bureau of Justice Statistics, Prosecutors in State Courts, 2001 (Washington, DC: Department of Justice, 2002). 44 Lee P. Brown and Mary Ann Wycoff, “Policing Houston: Reducing Fear and Improving Service,” Crime and Delinquency 33 (January 1986): 71–89. 45 Robert A. Jerin, Laura J. Moriarty, and Melissa Gibson, et al., “Victim Service or Self Service: An Analysis of Prosecution Based Victim-Witness Assistance Programs and Providers,” Criminal Justice Policy Review 7 (no. 2, 1995): 152. 46 Minneapolis Police Department, Accessed January 13, 2014, at http://www.ci .minneapolis.mn.us/police/report/police_crime-reporting_victim-assistance. 47 Edwin Villmoare and Virginia V. Neto, Victim Appearances at Sentencing under California’s Victims’ Bill of Rights (Washington, DC: Government Printing Office, 1987); Candace McCoy, Politics and Plea Bargaining Victims’ Rights in California (Philadelphia: University of Pennsylvania Press, 1993). 48 President’s Task Force on Victims of Crime, Final Report, 114. 49 Tom R. Tyler, Why People Obey the Law (New Haven: Yale University Press, 1990). 50 South Carolina v. Gathers, 490 U.S. 805 (1989); Booth v. Maryland, 482 U.S. 496 (1987). 51 Payne v. Tennessee, 501 U.S. 808 (1991). 52 Dean G. Kilpatrick, David Beatty and Susan Smith Howley, The Rights of Crime Victim—Does Legal Protection Make a Difference? (Washington, DC: Department of Justice, 1998), 6. 53 Edna Erez and Pamela Tontodonato, “The Effect of Victim Participation in Sentencing on Sentence Outcome,” Criminology 28(3) (1990): 451–474. 54 Ibid. 55 Anthony Walsh, “Placebo Justice: Victim Recommendations and Offender Sentences in Sexual Assault Cases,” Journal of Criminal Law and Criminology 11 (Winter 1986): 1126–1141. 56 William H. Parsonage, Frances Bernat, and Jacquehn Helfgott, “Victim Impact Testimony and Pennsylvania’s Parole Decision Making Process: A Pilot Study,” Criminal Justice Policy Review 6(3) (1994): 187–206. 57 Oregon Department of Justice, at: http://www.doj.state.or.us/victims/pages/ advocacy.aspx. Accessed February 16, 2014. 58 Office for Victims of Crime, Putting Victims First 2009 OVC Report to the Nation. 59 National Association of Crime Victim Boards, available at: http://www.nacvcb.org/. Accessed February 16, 2014. 60 Washington Crime Victims Claims Board http://www.lni.wa.gov/ClaimsIns/ CrimeVictims/About/BudgetHistory/Default.asp. Accessed February 16, 2014. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PROTECT CRIME VICTIMS 251 61 Andrew Karmen, Crime Victims: An Introduction to Victimology, 2nd ed. (Pacific Grove, CA: Brooks/Cole, 1990), 321. 62 William Doerner, “The Impact of Crime Compensation on Victim Attitudes toward the Criminal Justice System,” Victimology 5(2) (1980): 61–77. 63 Barbara Glick, Cultural Competency Standards for Programs Serving Victims of Domestic Violence and Sexual Assault and Other Crimes in Oregon, Rev. ed. (Eugene: Oregon Department of State Police, 2006). 64 Ibid. 65 Office for Victims of Crime, Vision 21: Transforming Victim Services, 14–15. 66 Oregon Crime Victims’ Services Division, Report on Common Outcome Measures Use by CVSD Grantees to Collect Client Feedback, July 2010–June 2011 (Eugene: Oregon Department of Justice, 2011). 67 President’s Task Force on Victims of Crime, Final Report, 17–18. 68 Cassia Spohn and Julie Horney, Rape Law Reform: A Grass Roots Revolution and Its Impact (New York: Plenum 1992). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 10 Control Gun Crimes THE PROBLEM WITH GUNS—AND GUN POLICY The debate over guns and gun violence changed dramatically in the winter of 2012–2013. On December 14, 2012, Adam Lanza shot and killed twenty-six people at the Sandy Hook Elementary School shooting in Newtown, Connecticut; twenty of those killed were children. That tragedy followed the July 20, 2012, mass shooting in Aurora, Colorado, where James Holmes shot and killed twelve people and wounded fifty-eight others at a multiplex movie theater. These horrific events shocked the nation and reenergized the debate over gun violence and gun control. Or did it? President Barack Obama made a strong pledge to do something about gun violence in his January 2013 Inaugural Address and introduced a gun control bill in Congress. The bill died in a Senate vote on April 17, 2013, and the issue of gun control disappeared from national political discussion almost as quickly as it had appeared. The sudden swings in national attention about guns and gun violence reflects the deeply divided attitudes of the U.S. people on the subject. Polls consistently show support for greater controls over guns, but specific legislative proposals have won support only in a few states and have gotten nowhere in Congress. Firearms, especially handguns, are the most serious part of the crime problem in the United States, and a deeply divisive issue among Americans. Firearms are used in about 70 percent of all homicides each year. In addition to the loss of lives and suffering for families and friends, the medical costs are estimated to be $2.3 billion a year, of which taxpayers pay $1.1 billion. Firearms are also used in 41 percent of all robberies, according to the FBI. In addition, in 2010 there were 19,392 firearms suicides, more than the 6,115 handgun homicides that year. Guns take a special toll among African Americans. The homicide rate for African Americans is almost eight times that of white Americans (14.6 per 1,000 compared with 1.9). And homicide has been the leading cause of death among African American men between the ages of fifteen and twenty-four.1 252 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 253 Illustration by Frank Irwin, © Wadsworth, Cengage Learning. Gun Violence in Perspective There is bad news and good news about guns and gun-related crime in the United States. First, the bad news. As Table 10.1 indicates, the United States stands alone in terms of the number of people killed each year by handguns. Mass shootings at schools and public places generates a pervasive fear for safety throughout U.S. society, and as we have already mentioned, gun deaths take a special toll on the African American society. Despite the grim statistics about gun violence, there is actually some good news when we step back and take the long view. The plain fact, obscured by the headlines on mass shootings, is that gun violence is down significantly. The 6,371 handgun-related homicides in 2012 represented a 53 percent decline from 13,510 T A B L E 10.1 An international perspective: People murdered by guns, 2006 18 Austria 27 Australia 59 England and Wales 60 Spain 190 Canada 194 Germany 10,177 United States SOUR CE: Brady Campaign Against Gun Violence, www.bradycampaign.org. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 254 CHAPTER 10 Firearm Homicides, 1993−2011 Rate per 100,000 persons Number 20,000 8 6 15,000 Rate 10,000 4 5,000 2 0 '93 '94 '95 '96 '97 '98 '99 '00 '01 '02 '03 '04 '05 '06 '07 '08 '09 '10 '11 0 F I G U R E 10.1 Trends in firearm-related crime, 1993–2011. SOURCE: Bureau of Justice Statistics, National Crime Victimization Survey. in 1994. This was part of the Great American Crime Drop, and it is an important and positive development. Homicides, moreover, are down among all racial and ethnic groups: down 51 percent among African Americans between 1993 and 2011, compared with a 48 percent decline for whites and a 54 percent decline for Hispanics. Murder rates also fell among Native Americans and Asian/Pacific Islanders.2 One important part of this change was the decline in intimate partner violence that occurred among white, African American, and Hispanic Americans alike.3 In short, we have less crime overall, less violent crime, and fewer crimes committed with a firearm, compared with ten or twenty years ago. The data suggest that if we want to understand gun violence and how to reduce it, we need to understand the factors related to the changes in the larger U.S. crime problem. Actually, there are two gun violence problems in the United States. Mass shootings, such as the Sandy Hook Elementary School shooting, receive enormous publicity but are fairly rare events. One survey found a total seven mass shooting incidents in 2012, in which sixty-six people were shot and killed (not including suicides by the perpetrators); in 2011 there were three incidents, with nineteen dead. (We should note that there are several such surveys by the news media, with no consensus on what should be counted as a “mass” shooting.)4 Another survey found sixty-two mass shooting incidents since 1982, which is an average of only about two per years.5 In short, mass shootings represent a tiny percentage of all firearms-related homicides in the country. We should think of them as celebrated cases that get a lot of attention, arouse people to fear and anger, but do not represent the typical pattern of gun violence. The vast majority of gun-related homicides occur on the streets in poor, high crime, and predominantly African American and Latino neighborhoods. That is where the majority of the 11,101 gun homicides in 2011 occurred, and any realistic strategy to reduce gun violence has to address the circumstances of those shootings. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 255 Gun violence in Chicago received an enormous amount of national attention between 2010 and 2013, and it is a situation worth exploring because it reveals some of the complexities related to gun violence. To begin, Chicago experienced the same decline in crime as did the rest of the country since the early 1990s. Murders fell from 943 in 1992, to 667 in 2001, and then to 437 in 2010. The situation suddenly worsened in the next two years, and Chicago had 513 murders in 2012, an increase of 17 percent in just two years. The dramatic reversal after a long-term decline caught everyone by surprise and was cause for widespread alarm. (New York City, by comparison continued its steady twenty-year decline in crime.) In Chicago, the year 2013 opened on a particularly tragic note when fifteen-year-old Hadiya Pendleton, who had performed at President Barack Obama’s inaugural was shot to death. Several deadly weekends with multiple shootings, created the impression that gun violence would surge even higher than 2012. But by the end of the year, 2013 murders were in fact down compared with 2012.6 We need to reflect carefully on the Chicago case, and put it in its proper perspective. First, it dramatizes the central place of low-income African American and Latino communities as the center of our gun violence problem. In 2011, 75.3 percent of the murder victims in Chicago were African American, 18.9 percent were Latino, and only 4.6 percent were white. Similar patterns are found in other big cities.7 Second, even after rising in 2012, murders in Chicago were down significantly from twenty years previously. Third, other cities, notably New York and San Diego, enjoyed long-term declines in murder, reaching record lows by 2012.8 SORTING OUT THE ISSUES Because the debate over guns is so emotional, with passionate feelings on both sides, and a lot of misunderstanding and incorrect information, it is important to begin by clarifying the various issues involved. Policy Options The policy options regarding guns and gun violence can be conveniently divided into two broad categories: supply reduction and demand reduction. As we will discover in Chapter 13, the same categories reappear regarding drug policy.9 Supply reduction sees guns as the problem and seeks to reduce their availability: by banning guns, or at least some kinds of guns, or restricting who can own them. Demand reduction focuses on gun offenders and seeks to reduce their “demand” (i.e., their desire to own and use) for guns through tough punishment, for example, mandatory prison terms, long prison terms, and so on. This combines deterrence and incapacitation strategies that we discussed in Chapters 6 and 7. The supply reduction and demand reduction positions do share some common ground. Everyone wants to prohibit people with criminal records or mental health problems from legally purchasing and owning guns. Some policies, however, do not fit conveniently into either category. Pro-gun advocates support “right-to-carry” laws that allow citizens to carry concealed weapons in public. This is really a deterrence-oriented self-protection approach to crime. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 256 CHAPTER 10 Which Firearms Are We Talking About? Much of the public debate over guns and gun violence is confused and unproductive because people are not clear about which firearms they are talking about and often confuse the terms weapons, firearms, and handguns. The basic categories are the following: Weapons. The category of weapons includes all instruments capable of injuring or killing people, including firearms, knives, hands and fists, poisons, and so on. Firearms. Firearms includes handguns, rifles, shotguns, automatic weapons, and so on. In short, everything that fires a bullet or projectile of some sort. Rifles and Shotguns. Rifles and shotguns are long-barreled firearms that are fired from the shoulder and require two hands to use. Rifles have a rifled barrel. Handguns. This includes only handguns, regardless of size or firepower, including automatic pistols with large capacity magazines. It excludes “long guns” such as rifles and shotguns. Saturday Night Specials. Saturday night specials are one kind of handgun: small, easily concealed, and cheap. We do not hear as much about this category as we did years ago. At that time, some gun control advocates, in an attempted compromise, proposed banning only Saturday night specials, believing they were disproportionately involved in crime. Assault Weapons. Assault weapons are rifles or pistols with high capacity magazines that are capable of rapid-fire action. The distinctions among weapons are extremely important because virtually everyone agrees that handguns are the problem with respect to crime (and suicide, for that matter). They represent 96 percent of all the firearms used in robberies. True, rifles and shotguns are used, including in some of the horrific mass murder incidents, but as we have already pointed out, such events are rare. Shotguns, for example, accounted for only 303 homicides in 2012, and rifles accounted for 322. As we have stated, handguns are the problem with regard to crime, and that will be our focus.10 THE POLITICAL CONTEXT: PUBLIC ATTITUDES ABOUT GUNS AND GUN VIOLENCE Americans are deeply and passionately divided on the “hot button” issue of guns. When asked in a 2013 survey which was more important, 50 percent said “control gun ownership,” whereas 46 percent said “protect [the] right of Americans to own guns.” Interestingly, only 4 percent did not have an opinion.11 Part of the reason for Americans’ deep interest is that firearms ownership is fairly widespread, and therefore proposals to restrict gun ownership directly affect a large number of people. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 257 It is often reported that a majority of Americans favor gun control. This statement is only partly true and is also misleading. The term gun control encompasses a number of different policy alternatives. For some people, it means restrictions on the purchase of guns by people with criminal records or who are mentally ill. For others, it means tougher penalties for criminals who use guns. Thus, two people can answer yes the question of whether they support “stricter” gun control but mean completely different policies. Support for a ban on the manufacture, sale, or possession of assault rifles (the term is ambiguous because of the variations among automatic weapons) has also been falling, from 68 percent in 1995 to 44 percent in 2012 (when 51 percent opposed a ban). In 2012, only 24 percent of Americans favored banning possession of handguns and support has been steadily falling, from 43 percent in 1991. The overwhelming majority (80 percent) favored requiring a police permit for purchasing a gun (in a 2002 survey), and about the same percentage supported a five-day waiting period for a gun purchase. Similar majorities supported mandatory gun safety training and designing guns so they cannot be fired by children. Finally, large majorities favor tough criminal penalties: 78 percent support doubling prison terms for crimes committed with a gun.12 GUN OWNERSHIP AND GUN-RELATED VIOLENCE Gun Ownership There are literally hundreds of millions of firearms in private hand in the United States. Some Americans deplore this fact and see it as the heart of the problem. Others celebrate widespread gun ownership. Like it or hate it, the prevalence of guns in U.S. society is a fact of life that any intelligent discussion of guns and gun violence must take into account. The international Small Arms Survey estimates that there are 270 million firearms in circulation in the United States, or about 90 for every 100 people. Other recent estimates have placed the figure at more than 300 million by 2013.13 Using the high estimate, this includes about 114 million handguns, 110 million rifles, and 86 million shotguns. Additionally, more than 5 million “small arms” were manufactured in the United States in 2010, almost twice the 3 million manufactured in 1986. (“Small arms” are defined basically as weapons that can be carried and fired by a single person.) These new weapons undoubtedly more than replace those that break or are lost or stolen.14 Finally, another 1.7 million handguns are imported into the United States, according to the Bureau of Alcohol, Tobacco, and Firearms (BATF). It is important to keep the 114 million handguns in mind throughout our discussion. They are out there, and they are not going to disappear. Many are bought and sold on the black market every year. Any effective gun control policy has to take them into account. There is some controversy over the percentage of households in the United States with a firearm. The General Social Survey, conducted regularly by the National Opinion Research Center (NORC) found that 32 percent of all Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 258 CHAPTER 10 households had a firearm in 2010, which represented a significant decline from the 50 percent reported in 1973. The Gallup Poll, however, found that 43 percent of households had a firearm in 2012. The Gallup poll findings have fluctuated over the years, with no clear trend, and have never fallen below 36 percent. The reasons for the variations in the two studies are a matter of dispute.15 Men are more likely to own guns than are women (50 versus 41 percent in 2011), and whites are more likely than are African Americans, a significant margin (51 versus 33 percent). The most important variable in ownership is region. People in the southeastern United States are the most likely to own a handgun, in large part because the region is predominantly rural and has a strong tradition of hunting. Handgun ownership is lowest in the urbanized Northeast.16 Data from the NORC’s General Social Survey indicate that gun ownership is highly correlated with people “who are members of social groups where gun ownership is the norm.”17 Whether the percentage of households is stable or falling, given the significant increase in the number of firearms in private hand it is clear that people who own guns generally have more guns. GUN-RELATED LAWS The Supreme Court and Gun Ownership The U.S. Supreme Court transformed the issue of gun control in 2008 with a landmark decision ruling that a District of Columbia gun control law unconstitutional. The Heller v. District of Columbia decision affirmed for the first time that the Second Amendment to the Constitution guaranteed the right of individuals to own guns: “In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”18 What exactly does the Heller decision mean? Are all gun control laws unconstitutional? Does absolutely everyone have a constitutional right to own a gun, including ex-felons and people with a history of mental health problems? The Second Amendment protects the right to “keep and bear arms.” What, exactly, does arms include? Machine guns? A military howitzer is an arm. Can people own them, too? In some respects, the Heller decision was a lot less radical than many people think is. Justice Antonin Scalia’s majority opinion clearly stated that the Second Amendment right was “not unlimited.” It does not include “any weapon,” or prohibitions against ex-felons and mentally ill people owning guns, or restrictions on carrying concealed weapons in public, or in “sensitive” public places such as schools and government facilities, or other restrictions on the sale of firearms. The dominant theme of Scalia’s opinion was the right to own guns for selfdefense. The Supreme Court reinforced Heller in 2010 in McDonald v. Chicago, Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 259 when it declared a handgun ban in Chicago unconstitutional under the Second Amendment.19 In short, many existing gun regulations laws are undoubtedly still constitutional after Heller, and the full impact of the decision on a wide range of gun polices—and ultimately on gun violence—is still uncertain. Gun-Related Laws and Regulations It is a myth that the United States has no laws designed to control gun-related crime. In fact, we have numerous federal, state, and local laws on guns. One group of laws seeks to limit the supply of guns, by banning them altogether, or outlawing their manufacture or importation, or banning certain kinds of weapons, or restricting who can purchase and own guns. Another group of laws is directed toward the criminal use of guns, by restricting purchase and ownership, or imposing harsh punishment for the illegal ownership or use of guns. The best source on this issue is BATF’s annual compilation of State Laws and Published Ordinances (available on its website).20 Our question, as it is in every chapter of this book, is whether particular laws are effective in reducing crime. We will now examine the different policy options related to guns and gunrelated violence. THE POLICY OPTIONS Ban Handguns The most extreme gun control proposal is to ban handguns. The idea of “banning” handguns actually consists of several different policies: outlawing possession, outlawing bullets, prohibiting the manufacture and sale of handguns, and banning only Saturday night specials or assault weapons. As we have already learned, the Supreme Court has declared unconstitutional laws that absolutely ban the possession of guns. Nonetheless, it is useful to consider this option because it illuminates both the assumptions underlying it and its likelihood of success if it were a viable option. BAN POSSESSION OF HANDGUNS A few cities in the United States actually banned the possession of handguns. Their experience gives us some idea of what this approach can and cannot accomplish. The District of Columbia banned the purchase, sale, transfer, and possession of all handguns in 1975. It exempted handguns and long guns previously registered under a 1968 gun registration law. In 2008, as we mentioned previously, the Supreme Court in Heller v. District of Columbia held the law an unconstitutional violation of the Second Amendment. It is useful to discuss the effectiveness of the DC law while it was in effect. The nation’s capital represents a tough test of banning handguns because it is a major city with a lot of violent crime and a lot of guns on the streets. The U.S. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 260 CHAPTER 10 Conference of Mayors, a leading gun control advocate, claimed that the law was responsible for a “significant reduction in both firearm and handgun crime.” Other analysts, however, believe that the mayors’ report was flawed and inconclusive. Edward Jones found in 1981 that comparable cities experienced even greater reductions in gun-related crime during the same period, without the benefit of gun control. Jones conceded that the law may have made some contribution to reducing handgun crime, but it was impossible to argue that it was the only or even the most important cause.21 Murder trends in Washington over the last forty years cast doubt on the effectiveness of the 1975 law. Murders declined significantly in the late 1970s and early 1980s, reaching a low of 147 in 1985. Then they skyrocketed to 482 by 1991, mainly as a result of the crack cocaine epidemic. Clearly, young men in Washington who wanted to obtain a handgun had little trouble getting one. Murders then began to fall, as a part of the Great American Crime Drop, reaching 186 in 2008, and then falling to only 92 in 2012. The fluctuations over the years reflected national patterns in violent crime. After an exhaustive review of all studies of the DC handgun ban, the National Academy of Sciences found “no conclusive evidence” regarding the impact of the law. One troubling fact for gun control advocates is that homicides fell by half between the 2008 Heller decision and 2012.22 THE LIMITS OF BANNING HANDGUNS The Washington, DC, experience illustrates the limits of attempting to outlaw possession of handguns. The main problem is the 114 million handguns that already exist. No one has offered a realistic plan for how they might be removed from circulation. As law professor John Kaplan once pointed out, crusaders who seek to outlaw a product (alcohol, drugs, guns) always focus on the alleged dangers of the item and spend “little time and energy” estimating the costs of enforcement and the likelihood of effectiveness.23 A sizable black market in handguns and other weapons already exists. Surveys consistently indicate that criminals often obtain their guns through the illegal firearms market. More than half of arrestees in one study (55 percent) reported that guns were easy to obtain: More than one-third (37 percent) said that they could obtain one in less than a week, and 20 percent said that they could get one in a day or less. Thirteen percent said that they had stolen a gun at some point in their life.24 Interviews with state prison inmates found that 40 percent obtained their gun from an illegal source, 37.4 percent got it from a family member or friend, and only 7.3 obtained it from a retail store—a fact that casts doubt on the effectiveness of laws regulating the sale of guns by licensed dealers in keeping them out of the hands of criminals.25 A complete federal ban on handgun possession would undoubtedly foster the growth of the black market. We have a lot of unhappy experience with this phenomenon. The prohibition of alcohol between 1920 and 1933 stimulated a huge black market in the manufacture, sale, and consumption of alcohol. One collateral consequence was the growth of organized crime to control the business. The criminalization of drugs, meanwhile, has created drug markets, including drug Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 261 cartels to control that market. We will discuss the consequences of attempting to outlaw certain products and services—alcohol, guns, gambling, drugs—in more detail in Chapter 13. In any event, given the Supreme Court decision in Heller, banning handguns or all firearms is not a viable option today. BAN THE MANUFACTURE AND IMPORTATION OF HANDGUNS Another way to reduce the availability of handguns in the United States is to outlaw their manufacture and importation. This supply reduction approach is designed to dry up the supply of handguns over the long run. As a practical matter, it is not a realistic idea. Banning any product would require a finding by Congress that the item in question is a public health risk with no socially redeeming value. Many products are dangerous but not banned. Cars and knives, for example, are involved in the deaths and injuries of many people, but no one suggests outlawing them. A ban on manufacturing handguns in the United States, moreover, would only stimulate an international black market similar to the one that dominates the drug trade. Also, it has been estimated that the current supply of 114 million handguns is enough to last for the next hundred years.26 GUN AMNESTY OR BUY BACK PROGRAMS Another supply reduction strategy involves gun amnesty or buy-back programs, where law enforcement agencies accept guns without questions from people who want to get rid of guns they do not want. St. Louis conducted two buy-back programs, bringing in 7,500 guns in 1991 and another 1,200 in 1994. Richard Rosenfeld evaluated the program and found “little evidence” of any impact on gun assaults or homicides in the city. An evaluation of a buy-back program in Seattle also failed to find any reduction in crime.27 Trying to put a more optimistic interpretation on his findings, Rosenfeld argues that buy-back programs are more likely to be effective in achieving other goals such as strengthening community bonds and building support for community leadership and that they should be evaluated on those terms. Gun amnesty or buy-back programs have serious limitations for obvious reasons. The available supply of handguns is so huge that it is unrealistic to significantly reduce the number in any community. Firearms are turned in by people who are the least likely to commit a gun crime, particularly the elderly. Many people simply want to dispose of an unwanted weapon. In some cases, a husband who owned guns dies and his widow does not want the guns in the house. In St. Louis, for example, 62 percent of those turning in a gun retained another weapon in the home. In short, there is no evidence that amnesty or buy-back programs are likely to reduce significantly either the number of guns in the community or crime. BAN SATURDAY NIGHT SPECIALS A compromise strategy for banning handguns advocated by some liberals is to outlaw only the so-called Saturday night specials.28 The BATF defines the “Special” as a gun of 0.32 caliber or less, with a barrel less than three inches in length and priced at fifty dollars or Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 262 CHAPTER 10 less. In 1996, Los Angeles became the fourteenth city in the United States (along with the state of Maryland) to outlaw the sale of Specials, specifically prohibiting twenty-three different weapons.29 Advocates of outlawing the specials believe that these weapons are favored by criminals because of their price and their ability to be easily concealed. Outlawing only Saturday night specials probably will not accomplish what its advocates expect. The role of the Specials in crime has been greatly exaggerated. Gary Kleck found that far from being the “preferred” weapon of criminals, they represent only between 10 and 27 percent of all handguns used in crime. Banning only the Specials would likely produce a substitution effect, in which criminals simply move up to a larger weapon. Kleck further argues that Specials are the primary self-defense weapon for low-income people. Banning them would deprive poor people, who are victimized by violent crimes more than middle-class people, of one of their principal means of self-protection.30 The proposal to ban only the Saturday night specials is essentially a political copout. It allows people to appear to be doing something about the gun problem without directly threatening most gun owners. The same can be said about the proposal to ban cop-killer bullets, which some people proposed in the past: It focuses on a small part of the problem, one that has high symbolic power, while avoiding the hard questions associated with the real problem. Ban Assault Weapons Although the issue of Saturday night specials has largely faded away, assault weapons has become one of the most hotly contested issues. Several mass shootings have involved assault weapons, and the rise of gang-related violence in the 1980s aroused public concern about so-called assault weapons. There was much publicity about gangs being heavily armed with Uzis, AK-47s, and similar weapons. The term assault weapon generally refers to “semiautomatic firearms with a large magazine of ammunition that [are] designed and configured for rapid fire and combat use.”31 They can be pistols or rifles. The BATF estimated in 1993 that about 1 percent of all guns then in private hands were assault weapons. Many people want to ban them because they are not legitimate hunting weapons and have no purpose other than killing people. In 2012, 44 percent of Americans supported a ban on assault rifles, down significantly from 68 percent in 1995.32 The 1994 Violent Crime Control Act outlawed the manufacture and sale of nineteen specific types of assault weapons for a period of ten years. The ban expired in 2004, as was specified in the original law, and has not been renewed. Evaluations of the assault weapons ban found that, at best, the ban had only a limited impact on gun crimes. One study estimated that assault weapons were used in only 2 to 8 percent of gun crimes before the ban, whereas large capacity magazines, which were also banned, were used in between 14 to 26 percent of gun crimes. The Brady Center, a leading gun control group, estimated that the ban produced a 66 percent drop in the use of assault weapons, reducing the Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 263 usage rate to 1.1 percent. A study by Koper and Roth, however, concluded that the law may have contributed to the decline in gun violence, but that estimating the actual effect is extremely difficult because of a variety of methodological problems with this particular kind of crime. Also, the law went into effect just as the Great American Crime Drop was occurring.33 The Violence Prevention Center pointed out that the gun industry undermined the law by producing weapons with only minor changes that technically made them legal firearms. This is a classic example of the phenomenon of adaptation, which appears in other criminal justice issues. As with Saturday night specials, the importance of assault weapons has been greatly exaggerated. Kleck points out that the ordinary handgun remains the gun of choice among robbers. Virtually all of the police officers feloniously killed are killed with handguns. In short, although extremely deadly, assault weapons are not the real problem in gun-related crimes. The 1994 ban expired in 2004, and bills to reinstate it have been introduced several times in Congress, but they have not been acted on. Summary on Banning Firearms All of the policies designed to eliminate the possession of handguns or certain types of guns run up against the same basic problems: Millions of these weapons already are in circulation (primarily those 114 million handguns), there is no practical plan for eliminating them, a black market already exists, and any kind of ban would only foster the growth of the black market. This leads us to the following proposition: 24 PROPOSITION Attempts to ban the possession of handguns, or certain kinds of guns, are not a viable option for reducing crime. REGULATE THE SALE AND POSSESSION OF HANDGUNS The basic U.S. strategy for controlling handguns, embodied in numerous laws, is to regulate their sale, purchase, and ownership to keep them out of the hands of certain categories of people: convicted offenders, people with a history of mental illness, and juveniles. This is essentially a “bad person” strategy. No one seriously opposes this approach. The problem, and it is a big one, is how to effectively ensure that members of these groups do not obtain weapons. Regulate Gun Dealers A major strategy for keeping guns out of the hands of certain groups has been to regulate gun dealers. Federal law requires all commercial gun dealers, including Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 264 CHAPTER 10 pawn shops, to obtain a federal firearms license (FFL) to sell guns. In 2012 there were 125,481 federally licensed gun dealers, down by more than half since 1992 when there were about 284,000.34 In the past, many licenses were held by individuals who were not commercial gun dealers, and one BATF survey found that 46 percent had sold no guns in the previous year. There are two basic problems with the licensing of gun dealers. First, a series of reports have found that many FFLs fail to comply fully with the federal regulations. Second, investigations have found that a small number of “problem” dealers were responsible for a high percentage of guns used in crime. The BATF, for example, traced half of all seized guns back to less than 1 percent (0.4 percent) of all the licensed dealers.35 Beginning in 1993 a new set of laws and policies tightened up the regulation of FFLs, including higher license fees; a requirement that dealers submit photographs and fingerprints of gun buyers; and that they report gun thefts within forty-eight hours. As a result, the number of FFLs dropped significantly. An evaluation by Christopher Koper found that the new regulations did eliminate a large number of problem FFLs, but it is not clear that this had a direct impact on gun-related crime. The changes occurred during the Great American Crime Drop and may have contributed in some marginal way to that decline.36 In a later section, we will discuss the variations among state regulation of gun sales and gun dealers and the impact on interstate trafficking of handguns. Background Checks: The Brady Law The 1994 Brady Handgun Violence Prevention Act (popularly known as the “Brady Act”) requires background checks and a one-week waiting period for all handgun purchases. The law forced thirty-two states to adopt new procedures for background checks to comply with the Brady requirements. The other eighteen states already had similar laws or even more stringent requirements. The Brady Act specifically prohibits convicted felons, people with mental disabilities, and known drug addicts from owning guns. In 1996 the Lautenberg Amendment prohibited persons with domestic violence convictions, including even misdemeanors, from owning guns. This law had serious potential implications for police officers and military personnel for whom carrying a gun is part of the job. Did the Brady Act prevent crime by keeping guns out of the wrong hands? Under the law, 2.2 percent of all gun purchase applicants were rejected, representing a total of 66,000 would-be gun buyers in 2001, and a total of 1.6 million purchases between 1999 and 2009. More than half (56 percent) were rejected because of a felony conviction, and another 14.7 percent were rejected because of a domestic violence record (10.9 percent involved a misdemeanor conviction, and 3.8 percent involved a restraining order).37 Cook and Ludwig compared violent crime trends in the thirty-two states that had to change their laws to comply with the Brady Act (making them the “treatment” group because something changed) with those in the eighteen states unaffected by the law (the “control” group because nothing changed). They found no significant differences in crime trends between the two groups of states.38 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 265 The major weakness with regulating gun dealers as a way of keeping guns out of the hands of the wrong people is the black market including both legal private gun transactions and illegal gun sales or thefts. Illegal sales of guns, of course, affect all current or proposed gun policies. Mark H. Moore estimated several years ago that between 500,000 and 750,000 gun transactions take place between private individuals every year.39 Most of these do not involve active or potential criminals. They are sales or gifts between friends, family members, gun collectors, and hunters. But a certain number do involve illegal sales among active criminals. A 2004 survey of state prison inmates asked where they obtained their firearm. The largest source, accounting for 40 percent of the total, involved illegal means, including theft, from someone off the street, or a fence. Another 37.4 percent got their firearm though a family member or friend. Only 7.3 percent bought it from a retail gun dealer. And finally, less than 1 percent obtained it at a gun show.40 The Brady Law also stumbles over some serious problems with official criminal history data. Offenders whose records do not show up in the files will not be rejected. Some other people are incorrectly listed as having a criminal record (through mistaken identity, data that were entered inaccurately, mistakes that were not expunged, and so forth). There is also the problem of the “straw purchaser,” a person who can legally purchase a firearm and resell it someone who is ineligible to buy one. In one Pennsylvania case, for example, one straw purchaser bought twenty-six guns in nine months, reselling them for money and drugs. He bought fifteen of those guns at one store. This highlights a related problem: some gun dealers are known to be “easy,” not carefully checking on whether purchasers are eligible.41 THE PROBLEM OF GUNS AND THE MENTALLY ILL After the 2012 Sandy Hook School shooting there were loud calls for more effective laws to keep guns out of the hands of people with mental health problems. Lanza, the perpetrator in that case, clearly had some serious mental health issues. The idea makes a lot of sense; we do not want guns in the hands of people who are likely to have a mental health episode and begin killing people. In practice, however, the idea runs head long into several serious problems. Federal law prohibits the sale of any firearm or ammunition to any person who “has been adjudicated as a metal defective or has been committed to any mental institution.” The problem, however, is that only a small number of people are ever formally adjudicated or committed to an institution. In fact, there are millions of people in the United States with mental health issues. The 2006 National Survey of Drug Use and Health (the latest available) estimated that 30.4 million people eighteen and older had experienced at least one Major Depressive Episode (MDE) in the past year, representing 13.9 percent of all adults. Another 3.2 million juveniles between ages twelve and seventeen, representing 12.8 percent of that population, experienced an MDE. The combined total is almost 35 million people. And remember, these involve self-reported major depressive episodes, which presumably excludes people who are temporarily depressed over a Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 266 CHAPTER 10 routine life incident, such as a relationship break-up, school problems, or job problems.42 How do we begin to prevent gun violence among these 35 million people? It is obvious that the vast majority do not resort to criminal gun violence. Remember, one survey estimated only three mass shooting incidents in 2011 and seven in 2012. This brings us up against an even more complex aspect of the old prediction problem. How would be identify those who are depressed or having other mental health issues and who are likely to turn to a gun? What criteria would we use? Some would argue that medical professionals should make those diagnoses and report people they treat who they think likely to commit a violent act, with or without a gun. Such a requirement, however, might only deter many people with genuine mental health problems from seeking professional help. And do we really want a national data file on people who are severely depressed? Who would have access to such a file? How would it be used? There are already serious gaps in the data currently reported to the National Instant Background Check System (NICS) regarding mental health issues. It has been estimated that the NICS lists only 20 percent of the people who have in fact been involuntarily committed to a hospital for mental health problems, or 402,000 people out of an estimated 2.7 million. Additionally, in this report eighteen states had not reported any mental health data at all to the NCIS. The most glaring and tragic example of this failure is the case of Cho Seung-Hui, the Virginia Tech University student who in 2007 shot and killed thirty-two students and faculty on campus (before killing himself). A Virginia court had declared him a danger to himself, making him ineligible to own a gun, but the state did not forward his name to the NCIS.43 The Gun Show Exception: A Loophole? In the debates over gun violence following the Sandy Hook Elementary School shooting, there was much discussion over closing the gun show “loophole.” Thirty-two states do not require background checks at gun shows, and only nine states require them for all gun show purchases. Where there is no requirement, sellers can sell a gun, and as many guns as they want, to people who are barred from buying the same gun from a licensed dealer. In fact, however, the loophole is not as great as many people believe. Most sellers at gun shows are licensed dealers, with an FFL, and are required to comply with all federal and state laws, including the background checks. Additionally, one estimate is that gun shows account for 4 to 9 percent of all gun sales. And the 2004 survey of state prison inmates found that less than 1 percent reported obtaining their firearm at a gun show. In short, gun show sales do not represent a significant “loophole” in gun sale regulations.44 State-by-State Variations in Laws and Enforcement The U.S. federal system with fifty states and a federal government, creates a number of problems for the effective enforcement of gun regulation laws. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 267 Although the Washington, DC, ban on guns was still in effect, supporters noted that DC was surrounded by states with weak gun laws, which made it easy to import guns from them into DC. The result, they complained, undermined the impact of the city’s attempt to keep guns out of Washington, DC. Weak gun laws in many states affect efforts to keep guns out of the wrong hands. A report by the group Mayors Against Illegal Guns used BATF trace data to identify the origin of guns seized in crimes. It found that just ten states accounted for half (49 percent) of guns that had crossed state lines before being recovered in a crime. These ten states “exported” guns at rate seven times higher than the ten states with the lowest export rates.45 The study then correlated the “export” of guns that with strong and weak state gun laws. “Strong” state gun laws were defined in terms of several specific laws restricting or regulating gun sales. Nine states have state criminal penalties (that parallel federal law) for “straw” purchases (buying a gun for someone who is ineligible). Twenty-three states have criminal penalties for providing false information on a gun purchase application. Twenty-five states have criminal penalties for gun dealers who fail to conduct background checks. Sixteen states require background checks at gun shows. Twentythree states have laws allowing state inspection of gun dealers that supplement federal inspection. The study found that states with weak gun laws consistently had gun “export” rates that were higher than the national average. States with penalties for straw purchases, for example, exported guns at a rate of 9.5 guns per 100,000 population, compared with 15.6 per 100,000 for states without such laws. States that require background checks at gun shows had an export rate of 7.5 per 100,000, compared with 19.8 per 100,000 for states that do not require gun show background checks.46 In short, stricter state gun laws have significantly reduced the interstate travel of guns that are eventually recovered in crimes. Summary on Regulating the Sale of Firearms Despite their many limitations, regulations designed to deny ownership to certain categories of “bad” people undoubtedly succeed to a certain extent. Many of the people who fail the background check probably stop at that point. But others who are determined to get a gun continue their quest. With an estimated 114 million handguns in existence, there is an active, thriving black market in guns, and criminals themselves say that they have or would have no trouble quickly obtaining a weapon. The greatest problem is that people with criminal records, who know they will fail the background check, go directly to the black market.47 25 PROPOSITION Laws that seek to keep guns out of the hands of criminals and the mentally ill have at best some limited effect but are easily evaded by the black market in guns. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 268 CHAPTER 10 KEEPING GUNS AWAY FROM SPECIAL LOCATIONS: AIRPORTS AND SCHOOLS A special part of the gun violence problem involves keeping guns away from particularly sensitive locations, such as airports and schools. Airports are particularly important because of the danger of plane hijacking. Keeping guns out of schools, of course, is intended to ensure a safe environment for children. Airports A federal law prohibits the carrying of a weapon onto an airplane, and all passengers are electronically screened at the gate. The electronic screening at airports makes enforcement fairly effective. In 2012, the Transportation Security Administration (TSA) seized 1,527 firearms at airports. This was almost twice the number (833) seized in 2008, but only a small fraction of the millions of prohibited items seized. Some people, it seems, just do not get it regarding airport security regulations. On Thanksgiving weekend in 2002, for example, despite all the publicity about the new post-September 11 security procedures, airport personnel seized 15,982 pocket knives, ninety-eight box cutters, six guns, and a brick.48 Many of the people detained in these seizures apparently forgot that they had a gun with them. This testifies to the prevalence of guns in U.S. society, the casualness with which people carry them around, and the limited deterrent effect of a well-known law. Nonetheless, the law has been effective in curbing airplane hijacking. The number of hijackings decreased from forty in 1969 to only one attempted hijacking each in both 1990 and 1991, and none in either of the next two years. The September 11 terrorist hijackings, of course, did not involve guns, but there was a failure to detect the box cutters used by the terrorists.49 Schools Guns in schools are another special case. Because of a series of sensational crimes, notably the 2012 Sandy Hook Elementary School massacre in Connecticut, there has been great national concern about guns and violence in public schools. Several strategies have been adopted to keep guns out of schools. The 1994 Gun-Free Schools Act requires schools receiving federal education funds to have a policy mandating the expulsion of students who bring firearms to school. Some schools have instituted metal detectors similar to those used at airports. The evidence, however, indicates that mass shootings in schools are another example of the celebrated case phenomenon we discussed in Chapter 2. In fact, schools are fairly safe and have been getting safer in recent years. There was an average of thirty or more shooting incidents in the 1990s, but in academic year 2009–2010 there were only seventeen, (which was the same as for the previous Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 269 year). School homicides, moreover represented only 1.1 percent of all homicides of kids between the ages of five and eighteen. Finally, the decline is school homicides parallels a general decline in school crime.50 In short, although school safety is always a matter of concern, the data clearly indicate that gun-related homicides are not a great problem and that schools are actually getting safer. There are two explanations for the decline in gun incidents in schools. One is the Great American Crime Drop across society. The other is the development of a range of new school security measures. Between 1999 and 2006 the percentage of schools with one or more selected security measures more than doubled, from 19 to 43 percent. The five most widely used measures are controlled access to schools during school hours (in place in 85 percent of all schools), controlled access to the entire school grounds (41 percent), required IDs for all faculty and staff (48 percent), security cameras (43 percent), and random dog sniffs to detect drugs (23 percent).51 The lesson seems to be that a range of reasonable and well-designed measures can make a significant difference in school safety. This parallels the lesson we discussed on traffic fatalities in Chapter 6. The fatality rate has gone down steadily since the 1920s not because of a single “get tough” measure, but because of a variety of changes, all of which make incremental contributions to the overall effect. MORE GUNS? LESS CRIME? Gun rights advocates argue that there would be less crime if more people carried guns on a routine basis. The assumption is that they would be able to scare off potential robbers, rapists, or burglars and even shoot to kill them if necessary. Some argue that more guns at mass shooting incidents would at least reduce the number of people who are killed in such incidents. There is some dispute over how frequently crime victims or people who believe they are threatened use a gun to protect themselves. Bureau of Justice Statistics estimates that between 1987 and 1992, 62,200 victims of violent crime annually used guns to defend themselves. This represents 1 percent of violent crimes during that period. Gary Kleck, however, estimated that handguns are used 2.1 million times a year for self-protection. Gun rights advocates have widely circulated this estimate, but other scholars have questioned the methodology that produced it.52 The National Crime Victimization Survey (NCVS) found that slightly less than 1 percent of crime victims threatened the offender with a firearm.53 Also using the NCVS data, from 1979 to 1985, Gary Kleck and Miriam DeLone found that robbery victims used a gun to resist the offender in 1.2 percent of all robberies (including both completed and attempted robberies). Few of these incidents involved a shootout between victim and offender. They concluded that when victims did use guns, they were frequently successful in preventing a completed robbery.54 About forty states have adopted “shall issue” laws, which require officials to issue permits to citizens who meet certain eligibility criteria allowing them to Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 270 CHAPTER 10 carry concealed handguns. These laws have replaced discretionary “may issue” laws, which give officials broad authority to deny permits.55 In a highly controversial study, John R. Lott, Jr., and David B. Mustard estimated that if states without shall issue laws adopted them, it would prevent about 1,570 murders, 4,177 rapes, and more than 60,000 aggravated assaults every year. Lott followed up with a book, More Guns, Less Crime, elaborating his argument that allowing people to carry concealed weapons would deter violent crime.56 Because of its direct implications for public policy, and the deep divide in public opinion over guns in U.S. society, Lott’s work spurred further research. By 2005 there were an estimated fifteen studies reanalyzing the original Lott and Mustard data. In addition, there have been studies using different data sets and methodologies. The result of this intensive research effort is inconclusive. About half (eight) of the reanalyses of Lott and Mustard generally confirmed their findings, whereas five found no effect on violent crime rates, and three found increases in violent crime. Other studies have also found conflicting results. The National Academy of Sciences undertook its own study and devoted an entire chapter of its report on guns to the right-to-carry issue. It concluded that studies are highly sensitive to both the model employed and to the control variables that are employed. This is an inherent problem in all longitudinal studies that use many variables from different jurisdictions. Several studies have found that, for some unknown reason, Florida has a powerful effect on studies that compare it with other states. In some instances, including or excluding Florida reverses the findings. In the end, the National Academy concluded that it was not possible to determine a causal link between right-to-carry laws and the crime rate.57 With respect to the more guns/less crime argument and mass shooting incidents, there are no scientific studies, for the obvious reasons. They are extremely rare events and it would be difficult to identify retrospectively all the variables in each incident. Common sense, however, suggests that the availability of more guns at a mass shooting incident in a public area (say, a shopping mall or theater) would likely result in more deaths. Think about the shooting of Congresswoman Gabby Giffords at a shopping mall in Tucson, Arizona, in 2011 where six people died and thirteen were wounded. As soon as one or more other people fired a weapon to stop the original assailant, the others with guns would not know who was the original perpetrator. People in this second group would inevitably think members of the first group of responders were the perpetrators and begin shooting at them. The resulting escalation would be utter chaos, with far more people shot and killed or wounded. Another compelling perspective on whether more guns reduces crime, as right-to-carry advocates argue, comes from our highest crime, highest gun violence neighborhoods. It is clear that much of the gun violence in these areas is the result of the prevalence of guns. These weapons only encourage others to carry guns. The result is a self-perpetuating gun culture. People carry guns to protect themselves and others feel compelled to do the same. As James D. Wright explains, these individuals “live in a very hostile and violent environment, and many of them have come to believe, no doubt correctly, that their Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 271 ability to survive in that environment depends critically on being adequately armed.” They are “highly motivated gun owners who are not easily persuaded that they should not have one.”58 Unfortunately, many guns carried for selfdefense are eventually used as offensive weapons, in response to real or imagined slights or other situations that are not life-threatening. The “Stand-Your-Ground” Law Controversy On the night of February 26, 2012, George Zimmerman, a neighborhood watch volunteer, confronted Trayvon Martin, a young African American whom he suspected of criminal activity. In the ensuing struggle Zimmerman shot and killed Martin. The case received enormous national publicity, with allegations of racial profiling by Zimmerman. On July 13, 2013, a jury acquitted Zimmerman of second degree murder charges. One aspect of the case was Zimmerman’s claim that his actions were justified in part by the Florida stand-your-ground law. Because there is much misunderstanding about stand your ground laws, we present the full text of the Florida law in Box 10.1. As with other hotly contested issues, the stand-your-ground laws have prompted research. A 2012 study of the impact of stand-your-ground laws on homicides and firearm injuries found that they are associated with increases in homicides among white males and also hospital emergency department visits for firearm-related injuries. The authors estimated that there are between twentyeight and thirty-three additional white males killed each month as a result of stand-your-ground laws. Interestingly, there was no increase in homicides among African Americans. Additionally, based on the FBI’s Supplemental Homicide Reports, the increase in the killing of white males was not associated with the shooting of assailants, suggesting that the incidents were not selfdefense situations in the face of serious threats to life.59 It is not hard to imagine the dynamics that lead to more homicides as a result of stand-your-ground laws. No one seriously disputes the basic right of self-defense. If you are attacked, you have the right to defend yourself. The problem with stand-your-ground laws is that people will misinterpret them in © 2015 Cengage Learning BOX 10.1 THE FLORIDA STAND-YOUR-GROUND LAW 776.012 Use of force in defense of person.—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if: 1. 2. He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or Under those circumstances permitted pursuant to s. 776.013. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 272 CHAPTER 10 a far more permissive way and shoot where the law does not actually permit it. Read the Florida law carefully. It permits the use of deadly force only where there is a threat of “imminent death or great bodily harm.” This does not justify shooting in response to just any belligerent challenge or abusive words from someone. Standard police department policies across the country, for example, limit the use of deadly force to “defense-of-life” situations. Police officers, moreover, receive extensive training, including regular in-service training over their deadly force policies.60 Recruitment policies screen out candidates who have self-control problems or evident mental health issues. Many ordinary people, carrying a gun under the law, and who have self-control issues and do not fully understand the law, are likely to shoot in instances not justified by the law. 26 PROPOSITION Laws designed to allow more people to carry guns and laws that allow them to use their guns in a greater range of circumstances are more likely to increase rather than reduce homicides. GET TOUGH ON GUNS AND GUN-RELATED OFFENSES The primary conservative policy on crime is to get tough on offenders, and gun-related crime is no exception. This approach translates into mandatory prison terms for people convicted of gun-related crimes and also longer prison terms. Such laws are widespread. In 1994, forty-one states had mandatory minimum sentencing laws for illegal weapons possession.61 Florida law imposes a mandatory minimum sentence of twenty years in prison for use of a weapon in the commission of violent or drug-related crimes and prohibits the granting of certain types of good-time credit during the mandatory minimum period. As we have already argued in previous chapters, the criminal justice system is not soft on serious crimes, and gun-related crimes fall in that category. In 2009, 80 percent of all persons convicted of a weapons offense in large urban courts were incarcerated, and two-thirds of those went to prison rather than jail—the same figure as for robbery. For those sentenced to prison, the average sentence was thirty-eight months (or just over three years). These data again confirm the point we have emphasized throughout this book, that the criminal justice system is fairly harsh on serious crimes.62 Tough Sentencing in Detroit: An Early Experiment In 1977, Michigan passed a law mandating two years in prison for any gunrelated crime. The law precluded either probation or parole and was advertised as “One with a gun gets you two.” At the same time, the Wayne County (Detroit) prosecutor announced a new policy prohibiting plea bargaining of gun charges under the new law. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 273 An evaluation by Colin Loftin and David McDowall focused on two questions: Did the law increase the certainty and severity of punishment? Did it lower the crime rate? The key issue in regard to the severity of sentences concerned the effective minimum prison terms; that is, how much time could a convicted offender reasonably expect to serve before becoming eligible for release, when reductions for both good time and parole were taken into account? They found “no statistically significant change in the expected minimum sentence” for gun-related murders and armed robberies, but a significant increase in the expected minimum sentences for gun-related assaults.63 Two factors—the going rate and the trickle-up phenomenon—explain what happened. The expected minimum sentences for murder and robbery did not increase because the going rate for these crimes was already high. Armed robbers in Detroit had been serving prison terms averaging six years before the new law, and few convicted robbers ever got probation. The system was not soft on crime beforehand, and the supposed get tough law did not change things. Sentences for assaults increased because the going rate for those offenses had been rather low. Probation and suspended sentences were common, and incarcerated offenders got an average of six months. Much of this seeming leniency stemmed from the ambiguity of the crime of assault. The nature of the act is often difficult to specify with precision; it may also be difficult to determine who initiated the altercation. Moreover, as we argued in Chapters 2 and 3, criminal justice officials routinely treat assaults between people who know each other as essentially private disputes and frequently dismiss the charges or settle the case with a plea to a lesser offense. The new law raised the severity of sentences by eliminating this opportunity for mitigating punishment. Loftin and McDowall also found that “the gun law did not significantly alter the number or type of violent offenses committed in Detroit.” Murder, robbery, and assault did decline, but the decrease in the rate had begun five months before the law went into effect—long enough in advance to rule out the possibility of the announcement effect that has appeared with other laws toughening criminal penalties.64 PROMISING APPROACHES TO REDUCING GUN VIOLENCE The good news is that there are some programs that have proven to be effective. We have examined them already in previous chapters, but it is important to discuss them again because of their relevance to gun-related violence. The Kansas City Gun Experiment The Kansas City Gun Experiment (1992–1993) was an early effort that involved intensive enforcement of existing laws on the illegal carrying of handguns. Funded by the federal Weed and Seed program, it represented a combination of two innovations in policing: problem-oriented policing, in which the police focus on a specific problem, and hot spots, in which patrols focus on a particular area (see our discussion in Chapter 5).65 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 274 CHAPTER 10 The experiment was conducted in a particularly high crime precinct in Kansas City, Missouri, where the 1991 murder rate was 177 per 100,000, or about twenty times higher than the national average at the time. Two two-officer patrol cars, working overtime, patrolled for six hours every night, concentrating exclusively on detecting and seizing illegally possessed guns. The officers would stop cars on legitimate legal grounds (e.g., a traffic violation) but focus on weapons seizures. Almost half (45 percent) of all the guns eventually seized were found through a search incident to arrest, another 21 percent were found in plain view, and 34 percent were found in frisks as authorized by the Supreme Court in Terry v. Ohio (1968).66 Over the course of twenty-nine weeks, the gun unit officers seized a total of twenty-nine guns. Meanwhile, regular patrol officers in the target beat seized another forty-seven guns, for a combined total of seventy-six. The number of gun crimes in the target beat declined by 49 percent, but only by 4 percent in a control beat. The experiment controlled for a possible displacement effect and found that gun crimes went up in some of the neighboring beats and down in others. The reduction in gun crimes could have occurred as a direct result of removing guns from the area, through deterrence, or through the incapacitation of potential offenders who were arrested and imprisoned. The Kansas City Gun Experiment suggested that a clearly focused program to remove guns from the streets can reduce gun-related crime. A number of questions about the program remain, however. It was extremely expensive when measured in terms of the cost per gun seized or crime prevented. (The costs are almost entirely related to police officer salaries for the time involved in the project.) It is not clear that a police department could afford to run such a program as a part of normal operations. Nonetheless, the idea of a clearly focused effort on gun violence inspired other more comprehensive approaches. The Boston Gun Project: A National Model The Boston Gun Project, which we have already discussed in Chapters 5 and 6, is possibly the single-most celebrated and influential criminal justice project of the last twenty years. It serves as a model of problem-oriented policing by focusing on a specific crime problem, making extensive use of partnerships, and combining traditional enforcement efforts with innovative nontraditional methods. It involved academic experts in the project’s planning and development, drew on the research literature about what works and what does not, used sophisticated data analysis, and allowed itself to be evaluated by top criminologists. It is the model for the Lowell, Massachusetts, gun initiative and the Cincinnati Initiative to Reduce Violence (CIRV), which we have previously discussed.67 In response to an upsurge in gun violence in the late 1980s, a coalition of community leaders, criminal justice officials, and academics developed Operation Ceasefire. The program focused on particular gangs and their leaders who were at the heart of the gun violence. The basic strategy involved what has become known as “pulling levers”: factors that give law enforcement and correctional Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 275 officials leverage over people involved in gun violence. The levers included a broad range of enforcement tactics focused on key individuals: arrests for outstanding warrants; seizing unregistered vehicles; vigorously enforcing probation and parole conditions (e.g., prohibitions on using drugs and alcohol or possessing guns). Operation Night Light involved evening visits to the residences of people on probation or parole by teams of police and correctional officers to enforce conditions of these individuals’ release (no weapons, no drugs or alcohol, compliance with curfews, etc.) Local, state, and federal officials also maintained a coordinated effort to track illegal guns and prosecute traffickers on federal charges. Finally, call-in meetings were held with identified gang members to send a clear message of tough enforcement: if there were gun violence in their neighborhoods, authorities would pull every available “lever” until it ceased. There would be no “deal”; gang members would not get any favor for refraining from violence; they would be expected to be law abiding. In short, the effort was carefully planned, multiphased, coordinated, and focused on key suspects.68 An evaluation found a 63 percent reduction in monthly youth homicides and smaller reductions in youth gun assaults and calls to the police regarding gunshots. You might properly question these findings on the grounds that the entire country was experiencing a great reduction in violent crime during those years. The evaluation, however, found a greater reduction in Boston than across the country and in other New England cities. Variations of the Boston Gun Project have been implemented in several other cities, and they are now referred to as a focused deterrence approach to gang and gun violence problems. A particularly successful program was the CIRV, which we have discussed in Chapter 5. The results in Cincinnati were impressive. After forty-two months there was a 41.1 percent reduction in homicide involving gang members. The fact that the reduction among the targeted groups continued after forty-two months makes the findings especially persuasive.69 The most important point in terms of the discussion in this chapter is how the Boston Gun Project and similar programs differ from the other policies we have discussed. Attempting to ban guns or restricting the purchase of guns by people with criminal records ignores the plain fact that guns are readily available on the black market. Tough prosecution and sentencing has been U.S. crime policy for forty years, and there is no reason to believe that getting tougher will reduce gun violence any further. The virtues of the Boston Gun Project are that it is narrowly focused, with a specific target audience, and that it is proactive, operating before further gun violence occurs. Focused deterrence programs are the only gun-related policies that have solid research evidence supporting their effectiveness, and it addresses the heart of the gun violence problem by focusing on low-income, high-crime, and high gun violence neighborhoods.70 It is effective primarily because it focuses on known gun offenders, the people who actually use guns (primarily handguns) for criminal purposes. It is useful in this regard to review quickly the limits of the other gun policies we have covered. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 276 CHAPTER 10 Making focused deterrence and other closely related programs work is not easy, however. The programs that have been found to be effective are extremely complex, require careful planning, and implementation, particularly with regard to identifying the known gun offenders, collaboration among many different agencies, and close administration to make sure that all the different parts work and work together. The danger is that already some people have become overenthusiastic and are recommending a hasty expansion.71 27 PROPOSITION Carefully designed and focused programs directed toward a small group of known offenders have been found to be effective in reducing gun violence. CONCLUSION Gun-related violence is a serious problem in U.S. society. Many different solutions have been proposed. Most have been found to be ineffective. Banning guns is an empty gesture (and now unconstitutional), given the number of handguns already in circulation. Trying to keep guns out of the hands of bad people also appears to be futile. Nor does it appear that threats of severe punishment will deter or incapacitate offenders in a way that will significantly reduce crime. There is persuasive evidence, however, from Boston, Cincinnati, Project Safe Neighborhoods, and other examples, that carefully designed, research-based, coordinated problem-oriented approaches can help reduce gun violence. NOTES 1 Bureau of Justice Statistics, Firearm Violence, 1993–2011 (Washington, DC: Department of Justice, 2013), p. 5, Figures 5 and 6; Appendix, 21, Table 8. 2 Bureau of Justice Statistics, Firearm Violence, 1993–2011, 3, Table 3. 3 Bureau of Justice Statistics, Intimate Partner Violence, 1993–2010 (Washington, DC: Department of Justice, 2012). 4 Aviva Shen, “A Timeline of Mass Shootings in the US Since Colubine,” Thinkprogress, December 14, 2012. Available at: http://thinkprogress.org/justice/ 2012/12/14/1337221/a-timeline-of-mass-shootings-in-the-us-since-columbine/ 5 Emily Badger, “6 Timelines That Explain America’s Persistent Gun Culture,” The Atlantic Cities, December 17, 2012. Available at: http://www.theatlanticcities.com/ politics/2012/12/6-timelines-explain-americas-persistent-gun-culture/4181/. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 277 6 Chicago Police Department, Compstat, Week 40. Available at https://portal .chicagopolice.org/portal/page/portal/ClearPath/News/Crime%20Statistics Accessed February 16, 2004. 7 Chicago Police Department, 2011 Murder Analysis (Chicago: Chicago Police Department), 37–39. 8 New York City, crime data 2000–2012, available at the New York City Police Department website: http://www.nyc.gov/html/nypd/html/home/home.shtml, accessed February 16, 2004. San Diego crime data, 1950–2012. Accessed January 14, 2014, at http://www.sandiego.gov/police/pdf/2013/UCRActuals1950to2012.pdf. 9 Mark H. Moore, “Controlling Criminogenic Commodities: Drugs, Guns, and Alcohol,” in James Q. Wilson, ed., Crime and Public Policy (San Francisco: ICS Press, 1983), 125–144. 10 Federal Bureau of Investigation, Crime in the United States 2012 (Washington, DC: Department of Justice, 2013), Expanded Homicide Data, Table 8. 11 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 2.0018.2013. http://www.albany.edu/sourcebook/. Accessed February 16, 2004. 12 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 2.0004.2012. http://www.albany.edu/sourcebook/. Accessed February 16, 2004. 13 Small Arms Survey, Estimating Civilian Owned Firearms (Geneva, Switzerland: Small Arms Survey, 2011). Also see, www.smallarmssurvey.org. Accessed February 16, 2004. 14 National Academy of Sciences, Firearms and Violence: A Critical Review (Washington, DC: National Academies Press, 2005), “Defensive Gun Use,” 103–108. 15 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 2.59.2012. http://www.albany.edu/sourcebook/. Accessed February 16, 2004. 16 Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 2.60.2011. http://www.albany.edu/sourcebook/. Accessed February 16, 2004. 17 Edward L. Glaeser and Spencer Glendon, “Who Owns Guns? Criminals, Victims, and the Culture of Violence,” American Economic Review 88 (May 1998): 458–462. Gary Kleck, “Crime, Culture Conflict and the Sources of Support for Gun Control, American Behavioral Scientist 39 (February 1996): 387–404. 18 District of Columbia v. Heller, 554 U.S. 570 (2008). 19 McDonald v. Chicago, 561 U. S. 3025 (2010). 20 Bureau of Alcohol, Firearms and Tobacco, State Laws and Published Ordinances (annual), www.atf.gov/. Accessed January 14, 2014. 21 Edward D. Jones, “The District of Columbia’s ‘Firearms Control Regulations Act of 1975’: The Toughest Handgun Control Law in the United States—Or Is It?” The Annals 455 (May 1981): 138–149. 22 Washington, DC, Metropolitan Police Department, Annual Report 2012 (Washington, DC: Metropolitan Police Department, 2013). National Academy of Sciences, Firearms and Violence: A Critical Review, 97–98. 23 John Kaplan, “The Wisdom of Gun Prohibition,” The Annals 455 (May 1981): 11–23. 24 Scott H. Decker, Susan Pennell, and Ami Caldwell, Illegal Firearms: Access and Use by Arrestees (Washington, DC: Department of Justice, 1997). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 278 CHAPTER 10 25 Bureau of Justice Statistics, Firearm Violence, 1993–2011, 13, Table 14. 26 James D. Wright, Peter H. Rossi, and Kathleen Daly, Under the Gun: “Weapons, Crime, and Violence in America” (New York: Aldine de Gruyter, 1983), 320. 27 The St. Louis and Seattle evaluations, along with other articles, are in Martha Plotkin, ed., Under Fire Gun Buy-Backs, Exchanges, and Amnesty Programs (Washington, DC: Police Executive Research Forum, 1996). 28 Robert Sherrill, The Saturday Night Special (New York: Charterhouse, 1973). 29 “Los Angeles Bans the Sale of Inexpensive, Small Guns,” New York Times, 8 September 1996. 30 Gary Kleck, Point Blank: Guns and Violence in America, (New York: Aldine de Gruyter, 1991), 85–86. 31 Bureau of Justice Statistics, Guns Used in Crime (Washington, DC: Department of Justice, 2000) 6. 32 Gallup Poll data cited in Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, Table 20004.2012. 33 Jeffrey A. Roth and Christopher S. Koper, Impacts of the 1994 Assault Weapons Ban: 1994–96 (Washington, DC: Department of Justice, 1999). Christopher S. Koper, An Updated Assessment of the Federal Assault Weapons Ban Impacts on Gun Markets and Gun Violence, 1994–2003. Research Report to the National Institute of Justice (Philadelphia: Jerry Lee Center of Criminology, University of Pennsylvania, 2004). 34 U.S. Department of Justice, Office of the Inspector General, Review of ATF’s Federal Firearms Licensee Inspection Program (Washington, DC: Department of Justice, April 2013). 35 Data cited in National Academy of Sciences, Firearms and Violence: “A Critical Review”, “Regulating Gun Dealers,” 89–90. 36 Christopher Koper, “Federal Legislation and Gun Markets: How Much Have Recent Reforms of the Federal Firearms Licensing System Reduced Criminal Gun Suppliers?” Criminology and Public Policy 1 (2002): 151–178. And see also the comments by Deborah S. Azrael and James B. Jacobs. 37 Bureau of Justice Statistics, Background Checks for Firearms Transfers, 2009—Statistical Tables (Washington, DC: Department of Justice, 2010). 38 Philip J. Cook and Jens Ludwig, Gun Violence: The Real Costs (New York: Oxford University Press, 2000). 39 Mark H. Moore, “Keeping Handguns from Criminal Offenders,” Annals 455 (May 1981): 92–109. 40 Bureau of Justice Statistics, Firearm Violence, 1993–2011, 13, Table 14. 41 Mayors Against Illegal Guns, Inside Straw Purchasing How Criminals Get Guns Illegally (Washington, DC: Mayors Against Illegal Guns, 2008), 7. 42 Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Results from the 2011 National Survey on Drug Use and Health: National Findings (Washington, DC: Department of Health and Human Services, 2012). 43 Mayors Against Illegal Guns, Fatal Gaps: How Missing Records in the Federal Background Check System Put Guns in the Hands of Killers (Washington, DC: Mayors Against Illegal Guns, 2011). 44 Garen Wintemute, Inside Gun Shows: What Goes on When Everybody Thinks Nobody’s Watching (Sacramento, CA: Violence Prevention Research Program, UC Davis Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. CONTROL GUN CRIMES 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 279 School of Medicine, 2009). Bureau of Justice Statistics, Firearm Violence, 1993–2011, 13, Table 14. The ten states are Mississippi, West Virginia, Kentucky, Alaska, Alabama, South Carolina, Virginia, Indiana, Nevada, and Georgia. Mayors Against Illegal Guns, Trace the Guns: The Link Between Gun Laws and Interstate Gun Trafficking (Washington, DC: Mayors Against Illegal Guns, 2010). Mayors Against Illegal Guns, Trace the Guns. See the previous report, Mayors Against Illegal Guns, The Movement of Illegal Guns in America the Link Between Gun Laws and Interstate Gun Trafficking (Washington, DC: Mayors Against Illegal Guns, 2008). See also, www.mayorsagainstillegalguns.org. Accessed February 16, 2004. Bureau of Justice Statistics, Guns Used in Crime. “More Than 800 Guns Seized at U.S. Airport Checkpoints Last Year,” February 24, 2009. http://www.ticklethewire.com/2009/02/24/more-than-800-guns-seized-atus-airport-checkpoints-last-year/. The Transportation Security Administration posts incomplete data on its website, www.tsa.gov/. Accessed February 16, 2004. “Airports’ Thanksgiving Seizures: 15,982 Knives and a Brick,” USA Today, 3 December 2002. Bureau of the Census, Statistical Abstract of the United States,1995. Available at: http:// www.census.gov/compendia/statab/. Accessed February 16, 2004. Bureau of Justice Statistics, Firearm Violence, 1993–2011, 9, Table 8. National Center for Education Statistics and Bureau of Justice Statistics, Indicators of School Crime and Safety 2012 (Washington, DC: Department of Justice, 2013). National Center for Education Statistics and Bureau of Justice Statistics, Indicators of School Crime and Safety, 2012, Indicator 20, Figure 20.1. See the discussion in National Academy of Science, Firearms and Violence. Gary Kleck and Miriam A. DeLone, “Victim Resistance and Offender Weapon Effects in Robbery,” Journal of Quantitative Criminology 9 (1993): 55–81. Bureau of Justice Statistics, Firearm Violence, 1993–2011, 12, Table 11. Gary Kleck and Miriam A. DeLone, “Victim Resistance and Offender Weapon Effects in Robbery,” Journal of Quantitative Criminology 9 (1993): 55–81. Pro-right-to-carry information is available from the National Rifle Association. www.nra.org. Accessed February 16, 2004. Opposition maternal is available from the Brady Campaign, www.bradycampaign.org. Accessed February 16, 2004. John R. Lott, More Guns, Less Crime: Understanding Crime and Gun-Control Laws (Chicago: University of Chicago Press, 1998). Tomislav V. Kovandzic, Thomas B. Marvell, and Lynn M. Vieratitis, “The Impact of ‘Shall-Issue’ Concealed Handgun Laws on Violence Crime Rates,” Homicide Studies 9 (November 2005): 292–323. National Academy of Sciences, Firearms and Violence. James D. Wright, “Ten Essential Observations on Guns in America,” Society 32 (March/April 1995): 66. Chandler B. McClellan and Erdal Tekin, Stand Your Ground Laws, Homicides, and Injuries, National Bureau of Economic Research Working Paper No. 18187 (Revised, October 2012). Available at: http://www.nber.org/papers/w18187. Accessed February 16, 2004. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 280 CHAPTER 10 60 Samuel Walker and Charles M. Katz, The Police in America: An Introduction, 8th ed. (New York: McGraw-Hill, 2013). 61 Bureau of Justice Statistics, National Assessment of Structured Sentencing (Washington, DC: Department of Justice, 1996), 24–25. 62 Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009— Statistical Table (Washington, DC: Department of Justice, 2008), Talbes 24, 25. ] 63 Colin Loftin and David McDowall, “‘ One with a Gun Gets You Two’: Mandatory Sentencing and Firearms Violence in Detroit,” The Annals 455 (May 1981): 150–167. 64 Ibid. 65 Lawrence W. Sherman, James W. Shaw, and Dennis P. Rogan, The Kansas City Gun Experiment (Washington, DC: Department of Justice, 1995). 66 Terry v. Ohio, 392 U.S. 1 (1968). 67 For a good overview of developments in this area, see David M. Kennedy, Don’t Shoot: One Man, a Street Fellowship, and the End of Violence in Inner-City America (New York: Bloomsbury, 2011). 68 David M. Kennedy, Anthony A. Braga, and Anne M Piehl, Reducing Gun Violence The Boston Gun Project’s Operation Ceasefire (Washington, DC: Department of Justice, 2001). Kennedy, Don’t Shoot. 69 Robin S. Engel, Marie Skubak Tillyer, and Nicholas Corsaro, “Reducing Gang Violence Using Focused Deterrence: Evaluating the Cincinnati Initiative to Reduce Violence (CIRV),” Justice Quarterly 30 (No. 3, 2013): 403–439. 70 Anthony A. Braga and David L. Weisburd, “The Effects of Focused Deterrence Strategies on Crime: A Systematic Review and Meta-Analysis of the Empirical Evidence,” Journal of Research in Crime and Delinquency 49 (August 2012): 323–358. 71 Steven N. Durlauf and Daniel S. Nagin, “Imprisonment and crime: Can both be reduced?” Criminology and Public Policy 10 (February 2011):13–54. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. PART IV Reform: The Liberal Prescription L iberals traditionally took a different approach to crime policy than did conservatives. As we indicated in Chapter 1, liberals are much more optimistic about our capacity to reduce crime by changing either people or society. In the two chapters that follow, we will take a close look at the two most important components of liberal crime policy. Chapter 11 examines both the concept of rehabilitation and specific programs designed to change criminal offenders into law-abiding citizens. Chapter 12 looks at potential reforms by increasing public confidence in the criminal justice system, and as a consequence, increasing commitment to lawful behavior. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 11 Treat ’Em! REHABILITATION OR CORRECTING CRIMINALS The concept of rehabilitation, or correcting criminal offenders, is the cornerstone of traditional liberal crime control policy. Although the rhetoric has changed over the years, the basic idea remains the same: reduce crime by rehabilitating, correcting, or treating criminals to help them reestablish lives and be reintegrated into their communities as law-abiding citizens. The terminology used by state agencies reflects the continued commitment to this approach. We have departments of corrections rather than departments of punishment. Why do we use this terminology? The terms corrections and rehabilitation carry the aura of healing and helping people and in that regard represent an inspiring ideal. That idea, moreover, places corrections officials on the same professional status as medical doctors and social workers, with a capacity to diagnose and treat.1 The Philosophy of Rehabilitation What exactly is rehabilitation? The National Academy of Sciences defines it as “any planned intervention that reduces an offender’s further criminal activity.”2 The key words here are planned and intervention. As Wolfgang’s career criminal research suggests (see our discussion in Chapter 4), most lawbreakers stop sooner or later. It is well established that criminal activity is highest between the ages of fourteen and twenty-four, peaks in the late teens for both burglary and robbery, and then declines sharply. The truth is, aging is the best crime reduction policy we know about.3 The goal of rehabilitation is to make offenders stop sooner rather than later. Planned interventions include education, job training, counseling, substance abuse treatment, and other programs. As we explained in Chapter 1, rehabilitation is a crime prevention strategy; it simply takes a different approach than punishment-oriented strategies. 282 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. TREAT ’EM! 283 “Unfortunately, corrections is a field in which quackery is pervasive.” What Criminologist F rancis T. Cullen and his colleagues call quackery, we call nonsense. What they say about corrections is also true of almost every aspect of the criminal justice system. F I G U R E 11.1 Faith, Fads, and Quackery. SOURCE: Francis T. Cullen, Kristie R. Blevins, Jennifer S. Trager, and Paul Gendreau, “The Rise and Fall of Boot Camps: A Case Study in Common Sense Corrections,” Journal of Offender Rehabilitation 40 (NJos. 3–4, 2005): 55. Old and New Programs A variety of different programs have existed to rehabilitate offenders and reintegrate them into the community. Probation and parole have been the most important programs for more than one hundred years. During this time, a variety of different approaches have been attempted to enhance their effectiveness, including intensive supervision, boot camps, curfews, mandatory drug testing, and other restrictions. As we will see, the entire subject of rehabilitation has been afflicted with fads—new ideas that generate a lot of excitement and new programs, only to fade away when the evidence begins coming in that they do not really work or make much difference. Criminologist Francis Cullen and his colleagues put it bluntly (Figure 11.1): “Unfortunately, corrections is a field in which quackery is pervasive.”4 They call it quackery, we call it nonsense, but it is the same thing: ideas based on faith rather than facts. New Developments in the Field A number of important new developments have overtaken the field of corrections in recent years. As part of the larger movement toward evidence-based policy making, which we discussed in Chapter 1, there are now a set of evidence-based best practices for probation and parole. A second development involves community reinvestment. This involves laws and policies that reduce a state’s prison population and the reinvestment of part of the money saved in community programs and services designed to treat offenders and hopefully reduce crime. Finally, drug courts have established themselves as an effective way to both sentence and treat persons charged with drug-related offenses. We will examine all of these developments, but first we will describe and discuss traditional approaches to correctional treatment, to understand their purpose, practices, and limitations. This will serve to put the new developments in their proper context. THE “NOTHING WORKS” CONTROVERSY About forty years ago, criminologist Robert Martinson threw down the gauntlet over rehabilitation, framing the terms of a debate that continues today. In a 1974 article (and later a book), he concluded that “with few and isolated exceptions, Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 284 CHAPTER 11 the rehabilitative efforts that have been reported so far have had no appreciable effect on rehabilitation.”5 The Martinson report is several decades old, but the debate continues to rage: Do rehabilitation programs work? Or are they ineffective? The question has direct relevance, for example, to drug courts. Do they work? What is the evidence? Or do most programs, as critics charge, allow many offenders to avoid the punishment of going to prison, undermine the deterrent effect of punishment, and allow these offenders to go free and prey on society? At the time, Martinson’s conclusions were a bombshell, although as often happens the report was widely misinterpreted. The title of his original article was “What Works?” Many people, however, interpreted it to mean that “nothing works.” He did not actually say that. In fact, he found positive outcomes in 48 percent of the program evaluations he reviewed. Almost half is a long way from nothing. And a few years later, he unequivocally stated that “some treatment programs do have an appreciable effect on recidivism,” adding, “the critical fact seems to be the conditions under which the program is delivered.”6 The National Academy of Sciences’ Panel on Research on Rehabilitative Techniques reviewed his work and concluded that he was “essentially correct.”7 It supported Martinson’s view that there was little evidence “to allay the current pessimism about the effectiveness of institutional rehabilitation programs as they now exist.” The challenge of designing effective treatment programs is exceedingly high. A quarter of a century after Martinson, Doris Layton MacKenzie, in a thorough review of what works in corrections could, at best, conclude that “some treatment programs work with at least some offenders in some situations.”8 We should note that she qualified her conclusion with three uses of the word some. Keep her comment in mind as we proceed in this chapter, because it becomes relevant again. Martinson’s comment about how programs deliver their treatment is crucial for our discussion in this chapter. It is not helpful to talk in terms of treatment, or rehabilitation. There are programs that vary in many different ways. The crucial questions are, what do they seek to do, how do they attempt to achieve their goals, do they have the resources necessary to achieve those goals, and so on. The Martinson report is a classic example of how social science research is often misinterpreted and misused in the political arena. In the 1970s when the report was published, many people wanted to believe that nothing works because they were disillusioned with the philosophy of rehabilitation. They were angry over what was then ten years of soaring crime rates. Conservatives blamed rehabilitation programs for being soft on crime, whereas liberals attacked the same programs for violating standards of due process (for example, denying some prisoners parole because they are not “ready” for release, without any verifiable standards to distinguish them from those who are deemed “ready”). The disillusionment with rehabilitation was part of a more general conservative mood that arose in the mid-1970s and continues today.9 The story of Martinson’s report is fascinating in itself. His team reviewed all evaluations of correctional programs published in English between 1945 and 1967. In important respects, his report was a precursor to the current evidencebased policy movement. They were able to find only 231 that met rigorous Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. TREAT ’EM! 285 scientific standards. Most evaluations they rejected because they used unreliable measures, failed to specify the “treatment,” did not use proper control groups, or drew questionable conclusions from the data.10 Martinson exposed a scandalous case of professional irresponsibility: the correctional community’s failure to develop a systematic process of evaluation. Programs routinely claimed “success” without any legitimate basis for doing so. The academic community shared much of the responsibility because formal evaluations were done either by researchers under contract or by in-house professionals with academic training. Because his findings were so threatening, the state of New York did not release the report and even denied Martinson permission to publish it. He sued and eventually forced the report’s release. The Prediction Problem Revisited Criminologist Daniel Glaser replied to the Martinson report by arguing that “certain sentencing and correctional policies, which differ according to the criminalization of the offender, are more likely than their alternatives to reduce recidivism rates.”11 His defense of rehabilitation highlights the central problem facing all treatment-oriented programs: the need for a good match between offender and treatment program. As MacKenzie argued, it is certainly true that some programs are effective for some offenders. Achieving the proper match, however, brings us back to our old friend the prediction problem, which we discussed in Chapter 4 and have referred to several times in other chapters. Sentencing a convicted offender to a community-based drug treatment program represents a prediction that he or she (1) is not a serious danger to the community and therefore does not need to go to prison and (2) will respond positively to the drug treatment program. Drawing on the work of John Hagan, Glaser argues that some individuals are more deeply “embedded in crime” than others.12 Those who are less deeply embedded are more “amenable” to community-based treatment. So far, so good. The crucial question is whether judges and correctional officials can correctly identify the more “amenable” offenders and sentence them to the right treatment program. Can we accurately pick, for example, those offenders who are likely to respond to a drug court program? We have already criticized conservative programs because of their inability to accurately predict which offenders are the really high-risk ones who should be sentenced to long prison terms, as we have previously argued in Chapters 4 and 7. Choosing which offenders to place on probation is simply the other side of the same sentencing coin. The criticisms we made of conservative punishment-oriented programs apply with equal force to liberal rehabilitation-oriented programs. TRADITIONAL REHABILITATION PROGRAMS Let us now examine the traditional rehabilitation-oriented programs—probation, parole, and diversion—to see what evidence there is regarding their effectiveness. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 286 CHAPTER 11 This discussion will provide the context for our discussion of recent innovations, such as evidence-based corrections, that seek to improve on their effectiveness. Probation Probation is the most widely used correctional program in the criminal justice system. In 2011, 3.9 million adults were on probation in the United States, almost four times the 1.1 million in 1980. Twenty-five percent of all convicted felons were sentenced to probation in 2009, and another 37 percent were sentenced to “split sentences that included a jail term followed by probation.”13 Probation embodies the traditional philosophy of rehabilitation by keeping convicted offenders in the community rather than sending them to prison. Probation treatment generally consists of supervision by a probation officer and some restrictions on a probationer’s behavior: reporting regularly to a probation officer, not leaving the area without permission, taking drug or alcohol counseling, furnishing employment verification or evidence of seeking a job, not possessing a weapon, and so on. Traditionally, probation was designed to help rehabilitate offenders by having probation officers help them find a job and deal with other personal problems. Probation serves a number of different purposes. In many cases, it is the appropriate sentence for someone convicted of a less serious offense or for a first-time offender. In this respect it serves the goal of proportionality in sentencing, of making the punishment proportional to the harm done by the offense. Probation is also far cheaper than imprisonment. The Pew Center for the States estimated in 2009 that regular probation costs 1,248 a year, compared with 28,835 for prison. Costs vary by the type of program and region. Intensive probation, for example, costs as much as 4,000 nationally, but in California it costs 43,000 a year for one inmate.14 In important respects, we use probation as a matter of necessity. We simply could not afford to imprison all convicted felons even if we wanted to. The Effectiveness of Probation Does probation work? Is it effective in rehabilitating offenders and reducing crime? Actually, there are two separate questions related to effectiveness. First, is probation more effective than incarceration? Second, are some kinds of probation programs more effective than others? There is much debate over the effectiveness of probation. Evaluations have found failure rates that range from 12 to 65 percent.15 Where does the truth lie? The Rand study of felons on probation in California is arguably the best data available. The findings are depressing. After forty months on probation, 65 percent of the probationers had been rearrested, and 51 percent had been reconvicted of a new offense (see Figure 11.2). Moreover, one-third of those reconvicted (18 percent of the original sample) were reconvicted of a serious violent crime. Nor did they wait Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. TREAT ’EM! 287 65% 53% 51% 34% 22% Arrested Charged Convicted Incarcerated, Incarcerated, jail or prison prison F I G U R E 11.2 Probation outcomes after three years, California. SOURCE: Joan Petersilia, Granting Felons Probation (Santa Monica: Rand Corporation, 1985). long to fail. Probationers reconvicted of a violent crime took an average of only eight months to recidivate, whereas those reconvicted of property offenses took an average of only five months. In short, most felons placed on probation fail; they do not become lawabiding citizens. Why? Many experts argue that traditional probation programs do not provide any kind of meaningful supervision or treatment. The level of supervision has always been minimal, involving a meeting with a probation officer (PO) perhaps once a month. The PO fills out the required reports, and that is that. Joan Petersilia found that offenders on regular probation in Los Angeles County met with their POs only once a month. Another report indicated that because some PO caseloads exceeded a thousand probationers per PO. In Los Angeles POs spent an average of one hour and forty-seven minutes per year with each offender.16 The level of supervision has gotten even worse in recent years because of the increase in caseloads. As we noted previously, the number of people on probation nearly quadrupled between 1980 and 2011, but the number of probation officers did not quadruple.17 A third issue involves the quality of the content of treatment services. Even assuming that a probationer is officially enrolled in a drug treatment or anger management program, it is not clear that this particular program is well run or that any kind of service—in and of itself—can overcome the problems that led the probationer to commit crime in the first place. In the long run, most probationers eventually rehabilitate themselves, through maturation, finding a job, getting married, and so on. John Hagan, as we already mentioned, argues that whether a person becomes law abiding or continues in a life of criminal activity depends on the extent to which he or she is “socially embedded” in either legitimate or criminal opportunities. Some individuals have more contacts—with family members or friends in the neighborhood—that lead to jobs. These contacts, moreover, tend to multiply: One job results in additional contacts that lead to other and often better job opportunities. Individuals who are Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 288 CHAPTER 11 embedded in these kinds of networks are far more likely to establish law-abiding lives than those who are not—regardless of the kind of probation or parole services they receive. Generally, white youths are more embedded in positive networks than African American or Hispanic youths. Whites are simply more likely to have a family member, friend, or acquaintance who can refer them to a job opening than is the case with young men of color, who are more likely to live in economically devastated neighborhoods.18 Research on offender prison re-entry programs provides a valuable glimpse into the lives of criminal offenders after their release. Although the research is specifically related to parole, it applies just as well to probation. Interviews with 400 recently released offenders who returned to Chicago found that they suffered from major problems that made readjustment to a normal life difficult: 30 percent had “significant” health problems, but 81 percent had no healthcare insurance; about half (48 percent) had no close friends, and among those with friends, 40 percent had a friend who had also been in prison. Convicted felons face restrictions on employment, housing, welfare, and voting. In short, they are embedded in social experiences that impose many hurdles but offer few supports.19 Parole Parole is the second-most prevalent rehabilitation program. Traditionally, most offenders sent to prison were released early under some form of supervision, but the percentage has declined in recent years. Parole is seen as a rehabilitation program because, like probation, it seeks to reintegrate the offender into the community. In 2011, 853,852 adults were on parole in the United States, more than three times the number in 1980.20 The use of discretionary release parole has declined as a result of the growth of sentencing guidelines. Between 1978 and 2012, the percentage of all prison releases that were “unconditional” (meaning no parole supervision) doubled from about 17 percent to 33 percent.21 When it was first developed, experts believed that parole would facilitate rehabilitation by placing a prisoner’s future in his own hands. They believed that the possibility of gaining an earlier release would encourage inmates to learn good behavior that would continue after release. Despite these promises, parole has always been the unloved child of the criminal justice system. Ever since it became widespread in the United States in the 1920s, it has been criticized from all directions. Conservatives argue that it allows dangerous offenders to get out of prison early, whereas liberals argued (before the development of sentencing guidelines) that parole release decisions are made without any scientific foundation and are thus arbitrary and often discriminatory.22 Despite persistent criticisms, however, parole survives because it serves a number of purposes unrelated to rehabilitation: It offers prisoners an incentive to behave in prison, gives prison officials some power to control them, and serves as a safety valve for prison overcrowding. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 289 TREAT ’EM! Does Parole Work? A 2009 report by the Urban Institute put the question directly: “Does Parole Work?” After reviewing the evidence, it concluded that “[o]verall, parole supervision has little effect on the recidivism rates of released prisoners.”23 That is to say, it found no evidence that some forms of parole supervision were more effective than other recidivism that other forms. It is important to note exactly what the Urban Institute report said and did not say. It did not criticize the institution of parole, the practice of releasing prisoners early, but only that no one has yet designed a form of parole supervision that is more effective than others. The effectiveness of parole has traditionally been measured in terms of the recidivism rate.24 As with probation, an offender can fail either by being arrested for a new crime or through a technical violation of parole conditions. In terms of a new crime, it depends on whether we measure failure in terms of being rearrested, reconvicted, or reincarcerated (see Table 11.1). The data on parole outcomes are as discouraging as for probation. The most recent and most thorough study of parole outcomes found that within three years, 67.5 percent were rearrested for either a felony or a serious misdemeanor. About 47 percent were convicted of a new offense, and 25 percent were returned to prison for a conviction of a new offense.25 These figures lend a great deal of support to the widespread belief that neither prison nor parole is successful in rehabilitating offenders. The policy question for us is whether parole can be made to work more effectively. The Urban Institute review of the evidence did find some variation in rearrest rates, depending on the type of release and the characteristics of the released prisoners. Those with fewer prior arrests who were obtained discretionary release were somewhat less likely to be arrested than those who were released unconditionally. The same pattern held for those who had been incarcerated for a public T A B L E 11.1 Parole-outcome recidivism rates of prisoners released in 1994 from prisons in fifteen states Cumulative Percent of Released Prisoners Who Were— Returned to prison with a new sentencea,c (%) Rearresteda,b (%) Reconvicted (%) 6 months 29.9 10.6 5.0 1 year 44.1 21.5 10.4 2 years 59.2 36.4 18.8 3 years 67.5 46.9 25.4 Time after release a With a new sentence, including to state or federal prisons but not to local jails. Because of missing data, prisoners released in Ohio and Virginia were excluded from the calculation of those returned to prison with a new prison sentence. c Because of missing data, prisoners released in Ohio were excluded from the calculation of percent reconvicted. b SOUR CE: Bureau of Justice Statistics, R ecidivism of Prisoners R eleased in 1994 (Washington, DC Department of Justice, 2002). Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 290 CHAPTER 11 order offense. Women who obtained discretionary release were also less likely to reoffend than those released unconditionally. Unfortunately, however, supervision had no evident effect on persons who had been convicted of a violent offense or a drug offense. In the end, the report had to conclude that the overall impact of supervision was minimal or nonexistent for the largest groups of people released from prison: males who had been convicted of violent, drug, or property crimes. Part of the reason, the report added, is that “Parole supervision is, in fact, quite minimal in most cases.”26 Petersilia amplifies point about the generally minimal nature of parole supervision. In California, 85 percent of parolees are on regular supervision, with each parole officer carrying an average caseload of sixty-six parolees and conducting an average of 1.7 contacts per parolee per month. The remaining parolees are on intensive supervision with and parole officer caseloads of twenty-five per officer and an average of 5.6 contacts per month.27 Second, there are serious questions about the availability and content of treatment services. A California study estimated that 10,000 parolees were homeless but only 200 shelter beds were available to them. Similarly, only four mental health clinics were available for an estimated 18,000 parolees with psychiatric problems. And there were only 750 beds in treatment programs for 85,000 parolees with alcohol or drug problems.28 Even if there were more of these services available, there is no strong evidence that we successfully match offenders to the specific treatment they need. Research on offender reentry confirms the inadequacy of treatment services. The Urban Institute interviewed 400 released offenders who returned to Chicago. Although 87 percent had participated in prerelease programs related to such practical matters as finding a job, obtaining a photo ID, and finding a place to live, once they were home only 25 percent received an actual referral to a job, only 15 percent received a referral to a substance abuse treatment program, and only 22 percent contacted a community program based on a referral from the prerelease program. In short, the released offenders has significant needs but received little in the way of services to address those needs.29 THE PREDICTION PROBLEM AGAIN Parole is where criminal justice officials first encountered the prediction problem, beginning in the 1920s. For about ninety years, parole officials and criminologists have tried to develop formulas for predicting success on parole and to ensure that parole is granted only to those offenders who are rehabilitated and ready for release into the community. The sad fact, however, is that criminologists have been searching for better parole release criteria since the 1920s. It is not clear that they are any closer to a successful formula today than they were then.30 Repeatedly, research has confirmed the basic point made by Martinson and MacKenzie: that some programs work for some offenders. The problem, of course, is in matching offenders to the right programs. Petersilia reports that California uses risk prediction instruments, but there is no evidence that they are any more effective in predicting success than the tools used in previous decades.31 Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. TREAT ’EM! 291 Does More Make It Better? INTENSIVE SUPERVISION FOR PROBATION AND PAROLE Intensive probation supervision or intensive parole supervision (IPS) was one of the new intermediate punishments designed to improve both probation and parole that flourished in the 1990s. It is frequently combined with other intermediate sanctions (boot camps, home confinement, and electronic monitoring) and applied to high-risk offenders. The idea of intensive supervision was nothing new. California developed a pioneering Special Intensive Parole Unit (SIPU) program in the mid-1950s and maintained it for ten years. Martinson reviewed the SIPU evaluations and found that three of the four phases produced no meaningful improvement in parolees’ behavior. The phase involving smaller caseloads did yield some positive results, however. Martinson concluded that this was a deterrent rather than a rehabilitative effect. Parolees behaved themselves a little better when they knew that they faced a real prospect of being sent back to prison.32 The federal probation system, meanwhile, developed the San Francisco Project in the 1960s. Two IPS groups had caseloads of only twenty probationers, whereas two other groups had caseloads of forty, and another group had caseloads of several hundred clients. All other offenders were assigned to groups with normal levels of supervision, meaning that probation officers had between 70 and 130 clients.33 An evaluation found no significant difference in the recidivism rates of offenders in the various groups. IPS did not consistently reduce the failure rate. The original IPS programs rested on the flawed assumption that increasing the intensity of supervision simply by lowering case loads and increasing the frequency of contact would enhance effectiveness.34 Mere contact with a probation or parole officer, however, may have little impact on an offender’s behavior, and increasing the number of those contacts, it follows, will not necessarily make a difference. The new IPS programs of the 1990s attempted to overcome some of this problem by incorporating other intermediate sanctions such as home confinement, mandatory drug and alcohol tests, and electronic monitoring.35 One important result is that intensive supervision has become primarily enforcement oriented rather than treatment oriented, with the primary goal being control of the offender. Are the new IPS programs effective? That is, are they more effective than traditional probation? Petersilia found the results in three California probation programs “particularly discouraging.” After one year, about 35 percent of the IPS probationers had been rearrested, another 40 percent committed technical violations of probation conditions, and only 25 percent had no violations of any sort. Admittedly, the offenders assigned to these IPS programs were labeled high risk, but a 75 percent failure rate after only one year is a poor showing. Perhaps even more significant, their rearrest rates were no different from those of other probationers. This outcome suggests that the intense supervision did not stop them from committing crime. More intensive supervision did result in much higher rates of technical violations. This result is hardly surprising because Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 292 CHAPTER 11 more frequent contacts and drug tests increases the chance of catching technical violations.36 Why are IPS programs no more successful than regular probation in reducing recidivism? The answer may be that no form of probation or parole supervision— intensive or minimal—has any real impact on the lives of people who are embedded in environments with few positive opportunities, weak or nonexistent family supports, and many dysfunctional peer influences such as friends involved in drugs and crime. The “treatment” of intense supervision may not be able to overcome the real problems that offenders have. Disillusionment with parole reached such a point in the 1970s that several jurisdictions simply abolished discretionary parole release (although some kept postrelease supervision). The 1977 California Determinate Sentencing Law abolished discretionary parole release. Once a prisoner has served the sentence imposed by the judge (with good time deducted) he or she is released and serves a one-year period of parole supervision. The federal sentencing guidelines that took effect in 1987 also abolished discretionary parole release, replacing it with automatic release followed by supervised parole. Sixteen states have now abolished discretionary parole release. As a result, the percentage of all prisoners released through discretionary parole has declined to slightly more than 30 percent in recent years, a sharp decline over the previous twenty years, whereas about half now leave prison through mandatory release, meaning that they have completed their prison sentence.37 Abolishing parole may or may not be a good idea, but the evidence indicates that it is not an effective crime reduction policy. A 2001 Bureau of Justice Statistics report found that in 1999, 54 percent of the prisoners released through discretionary parole were not rearrested, compared with 33 percent who left prison through mandatory release. Perverting Parole: Crisis in California Parole has been completely perverted in California, to the point where it undermines the original purpose of parole and also contributes directly to the prison overcrowding crisis in the state. Every year, more people—six out of ten—enter prison because their parole was revoked than because of a sentence by a judge. That involved 78,721 parolees in 2006. To put this in context, New York had the second-highest total of revocations to prison with 11,548. The California prisons were so overcrowded a federal judge found the prison system to be unconstitutional under the Eighth Amendment and ordered a cap on prison populations. The Supreme Court upheld the decision in 2011. The state responded with a Public Safety Realignment program requiring that offenders not convicted of a violent or sexual offense, or not considered “serious” offenders under state law would be sentenced to county jails.38 Underlying the California crisis was the 1978 sentencing reform law which ended discretionary parole release and substituted a mandatory release when prisoners completed their sentence. Release is followed by a period of one year of Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. TREAT ’EM! 293 supervised parole. The unanticipated effect was to transfer the discretion previously exercised by the parole board to parole officers, who increasingly used parole revocation as a form of control of offenders. Violations of parole conditions or a new crime increasingly resulted in revocation that sent the offender back to prison. The process made a mockery of the traditional idea of parole supervision as a means of reintegrating offenders into the community. And because parole caseloads were so high, officers had almost no time for many of their clients. Some categories of parolees could even report to their parolees by mail. We can properly ask, what was the point of even pretending there was any supervision? Additionally, many of the revocations were for extremely short periods of time: one month, in some cases. The revolving door of revoked parolees entering and then quickly leaving prison only overburdened and disrupted prison administration, which was already suffering from severe overcrowding. Could anyone reasonably expect this process to be successful in rehabilitating offenders, or even to send them any kind of positive message? 28 PROPOSITION Probation and parole have their proper places in the criminal justice system, but there is no evidence of any programs likely to make them more effective in reducing crime. DIVERSION Diversion was one of the exciting reforms of the 1960s. The President’s Crime Commission gave it a strong endorsement in 1967, and in the 1970s an estimated 1,200 diversion programs were established.39 A diversion program is a planned intervention with a treatment component and the goal of getting offenders out of the criminal justice system as early as possible. Actually, diversion was nothing new in the 1960s. Historically, many offenders were diverted from the criminal justice system at an early stage. Police officers routinely chose not to arrest someone even though there was probable cause, and prosecutors dismissed cases when prosecution would not serve the “interests of justice.” We call these practices the old diversion. The new diversion programs were different because they were formal programs, with official goals, a professional staff, and treatment services.40 (As we will see, today’s drug courts are essentially another form of diversion, although with important differences that we will discuss.) Diversion programs are designed to rehabilitate offenders, and thereby reduce crime, in two ways. First, they keep people accused of relatively minor offenses out of jails and prisons. This reflects labeling theory in criminology, which holds that formal processing in the criminal justice system, and imprisonment in particular, only accentuates a person’s tendency toward criminal behavior. The President’s Crime Commission argued: “Institutions tend to isolate offenders from society, both physically and psychologically, cutting them off from schools, Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 294 CHAPTER 11 jobs, families, and other supportive influences and increasing the probability that the label criminal will be indelibly impressed upon them.”41 The Wolfgang cohort data we examined in Chapter 4, moreover, suggest that most juveniles “mature out” in relation to criminal behavior. Diversion programs assume that the best approach is to intervene in people’s lives as little as possible. Second, diversion programs are designed to provide treatment services that address the offender’s real problems: drug or alcohol treatment, employment counseling, anger management, and so forth. Advocates of diversion believe that arrest, prosecution, and punishment aggravate rather than treat those problems (while at the same time overloading the criminal justice system). Finally, diversion programs are intended to reduce the costs of the criminal justice system by avoiding the expenses of full criminal prosecution and imprisonment. In short, diversion promised the best of all possible worlds—an approach that was more effective, more humane, and cheaper. An old adage says that if something seems too good to be true, it probably is. Let us take a look at diversion in practice. The Original Model: The Manhattan Court Employment Project The earliest and most influential diversion program was the Manhattan Court Employment Project. Sponsored by the Vera Institute, the project provided employment services to arrested persons. The basic assumption was that because unemployment is a major cause of crime, facilitating employment will reduce subsequent criminal activity. Even though the Court Employment Project occurred many years ago, its story highlights a number of enduring problems that affect more recent programs. Each day staff members of the Court Employment Project reviewed the arrest docket and identified defendants who met the program’s criteria: resident of New York City; between the ages of sixteen and forty-five; unemployed or earning less than 125 a week; and charged with a felony other than homicide, rape, kidnapping, or arson. In addition, the defendant must have not had prior jail or prison experience of one year or longer. With the prosecutor’s consent, the case was suspended for ninety days while the defendant received counseling, assistance in obtaining any short-term public assistance for which he or she might have been eligible, and referral to a job opening with one of the 400 cooperating employers. Charges were dropped completely if the defendant “succeeded” by keeping a job. If the person “failed” to secure employment, the case was prosecuted. An early evaluation declared the Manhattan Court Employment Project a huge success. In its first three years, the project accepted 1,300 clients, about half of whom (48.2 percent) succeeded. About 70 percent of these 626 people had been unemployed at the time of arrest. Fourteen months later, about 80 percent of those who could be located were still employed. Only 15.8 percent of these successful clients committed another crime in the twelve months following their release from the program. This recidivism rate was half of that for both offenders Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. TREAT ’EM! 295 who failed in the program and a control group. The program cost only 731 per client, or 1,518 per success.42 A subsequent evaluation, however, reached different conclusions. It found that the project did not reduce recidivism and had no discernible effect on the employment record or the behavior of its clients. Moreover, it did not reduce pretrial detention time or lower the number of convictions. A major problem was that about half of the clients served by the program would not have been prosecuted at all if there had been no court employment project.43 They would have been completely diverted from the justice system. The fact that the program kept them in the system and under some form of control, was a classic example of “net widening.” Because this phenomenon affects so many well-intentioned reforms, we need to discuss it in detail. The Net-Widening Problem Net widening is the process by which more people are brought under some form of social control through the criminal justice system. The unwritten law of net widening is that less punitive alternatives tend to be applied to people who would otherwise not be under any social control at all; that is, they would be truly diverted and not arrested, prosecuted, or incarcerated. Evaluations of early diversion programs found that they led to substantial net widening. More than half of the juveniles referred to fifteen diversion projects in California would not have been committed to any kind of program under traditional practice. Thomas G. Blomberg found that juvenile diversion programs produced a 32 percent increase in the total number of juveniles under some form of control. Other evaluations have found varying degrees of net widening.44 And as we shall see, net widening has plagued many of the new intermediate punishments such as boot camps. A study of reforms in the San Francisco juvenile justice system in the mid1990s, which included new prevention and intervention systems and cost 20 million, found a significant increase in the detention of juvenile arrestees, even though juvenile arrests declined by about half. And in fact, the average length of detentions increased despite the original goal of diverting juveniles from the system.45 The dynamics of net widening are easy to understand. Officials continue to use severe sanctions (for example, prison) for offenders they regard as dangerous and use new and less punitive programs for less serious offenders whose cases they might have dismissed altogether. Thus, instead of dismissing cases and keeping less serious offenders completely out of the system, they “divert” them into a treatment program. As a result, more people are under control of the criminal justice system. The problem, of course, is that most of those low-risk offenders probably would have succeeded without the benefit of the program. The treatment, whatever it is, added no additional crime reduction. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 296 CHAPTER 11 The net-widening phenomenon suggests that the old diversion actually did a better job of achieving the basic goal of keeping people out of the system. When a police officer does not make an arrest, that person is truly diverted; when a prosecutor dismisses all charges, that defendant is genuinely diverted. New diversion programs, however, keep people under some form of control, thereby maintaining or even increasing the total costs to the system.46 Do Diversion Programs Rehabilitate? The most relevant question for us is whether diversion programs effectively rehabilitate offenders and thereby reduce crime. More precisely, the question is: Do diversion programs provide a treatment or intervention that reduces future criminal behavior more effectively than normal prosecution or even dismissal? A number of evaluations found that they do not. The Justice Department touted the Des Moines (Iowa) Adult Diversion Project as an “exemplary project” that other communities should adopt. An evaluation, however, found that it had “little impact in reducing recidivism among diverted, compared to nondiverted offenders.” In another program, diverted offenders had lower recidivism rates than did juveniles sent to juvenile court but, alas, had higher recidivism rates than did kids released outright without the benefit of any treatment.47 The failure of diversion programs is the result of a number of problems; ones that we should keep in mind when we look at drug courts, reentry programs, or other recent innovations. First, many do not actually deliver the treatment services they claim to deliver. Some intensive probation supervision programs, for example, promised a high rate of contact between probationers and probation officers but did not achieve that goal.48 Second, even when treatments are delivered, there are questions about the content of those treatment services. Do drug and alcohol treatment programs effectively reduce substance abuse? How many of the successful clients would have done so on their own without the benefit of the treatment? Additionally, if net widening occurs, the promised cost savings will not necessarily be achieved because there are now more rather than fewer people under the control of the criminal justice system. Finally, diversion programs introduce serious due-process considerations. A person who agrees to enter a treatment program in the expectation of having criminal charges dropped is, in effect, admitting guilt. Rather than contest the charge, the person is saying, “Yes, I have done something wrong, and you have a right to force me to undergo treatment.” By offering a seemingly more attractive alternative to prosecution and possible incarceration, the program coerces this tacit admission of guilt in a subtle but powerful way. In addition, the selection of the program’s clients may be unfair.49 In the end, diversion offers a false promise. It fails to achieve its own goals, may in fact contradict them, and does not offer a realistic solution to the problem of serious crime. Diversion is not really used for persons charged with robbery or burglary. Nor is there persuasive evidence that it rehabilitates lesser offenders in a way that keeps them from becoming serious offenders. An evidence-based crime policy approach leads us to the following proposition: Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. TREAT ’EM! 297 29 PROPOSITION Traditional diversion programs do not reduce serious crime. THE NEW INTERMEDIATE PUNISHMENTS In their influential 1990 book Between Prison and Probation, Norval Morris and Michael Tonry leveled a major criticism at criminal sentencing in the United States. They argued that at sentencing, a judge faced a stark choice between two extremes: probation or prison. In many cases, however, prison is too harsh a punishment, whereas probation is too lenient. Their argument exposed the problem that probation involves neither meaningful treatment nor effective control of offenders in the community. Consequently, they called for the development of a range of intermediate punishments that would be less extreme than prison but with more content than traditional probation.50 Correctional officials and politicians across the country responded to Morris and Tonry by developing a set of new programs called intermediate punishments, which included boot camps, shock incarceration, intensive probation/parole supervision, home confinement, and electronic monitoring. These programs often overlap, and sentences typically include two or more different programs. Boot camps are often defined as a form of shock incarceration and frequently include a period of intensive parole supervision following release. Intensive probation/parole supervision might include home confinement, which may be enforced through electronic monitoring.51 All of these programs may include frequent random drug tests. In examining a particular intermediate punishment, therefore, it is important to look beyond the label and determine exactly what program elements it contains. Ted Palmer and some others regard the new intermediate punishments as a revival of rehabilitation. Is this true? Palmer’s own choice of words raises some doubts. He refers to correctional intervention instead of rehabilitation. The difference is more than a matter of semantics. As we shall see, the new intermediate punishments emphasize surveillance and control of offenders, often with little emphasis on traditional treatment components. Petersilia argues, as have other critics, that parole has become largely devoted to the surveillance and control of parolees and that services designed to help them adjust to society have decreased and in many instances vanished altogether. What kind of services or control exists, for example, for the California parolees who report to the parole officers by mail?52 We now have many years of experience with the new intermediate punishments. What is the evidence for their effectiveness? We will start with a discussion of boot camps, a classic example of a new idea that generated a lot of excitement, and then quickly faded away. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 298 CHAPTER 11 Illustration by Frank Irwin, © Wadsworth, Cengage Learning. The Rise and Fall of Boot Camps Does anyone remember boot camps? Most students reading this book will not. Most faculty will remember them, but even some of the younger faculty may not. Boot camps burst on the scene in the mid-1980s as an exciting innovation, generating publicity as an effective alternative to prison sentences. By 2000, there were ninety-five boot camps in the country, enrolling 12,751 prisoners.53 Gradually, however, the excitement faded. Susan Turner in 2010 recalled the “great fanfare” that greeted their arrival and the loss of their “luster” when the evaluations arrived indicating their failure to reduce recidivism among their clients.54 The evidence was that they were no more effective than other sanctions. The title of the article by criminologist Francis Cullen and his colleagues in a special 2005 issue of the Journal of Offender Rehabilitation said it all: “The Rise and Fall of Boot Camps.”55 Boot camps are a classic example of the fad syndrome in criminal justice: an exciting new idea today is gone tomorrow. If you do a web search for “boot camps,” you find mostly commercial camps for special interests: boot camps for fitness, for teens, for computer skills—just about something for everyone, except for criminals. What Is a Boot Camp? A boot camp usually involves (1) a short period of incarceration (typically three to six months); (2) in a facility separate from a regular prison; (3) for young firsttime offenders (many exclude offenders convicted of violent crimes); (4) with a program of rigorous physical, educational, and substance-abuse-prevention programs; and followed by (5) a period of intensive supervision in the community. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. TREAT ’EM! 299 Many of the first boot camps emphasized their purely military aspects, which caught the public’s attention and were the basis of their popularity: “military drill and ceremony, hard labor, physical training, and strict rules and discipline.”56 As time passed, correctional officials gave more emphasis to the treatment elements, such as drug counseling. As is the case with other intermediate punishments, boot camps have multiple and conflicting goals. They are simultaneously intended to rehabilitate, punish, control, and reduce prison overcrowding. The basic idea underlying boot camps is nothing new. Judges have routinely given split sentences: short periods of incarceration followed by probation. The first boot camps were different primarily by virtue of the military rhetoric that surrounded them and the intensive probation supervision that usually followed release. Boot camp programs vary considerably in terms of how participants are selected, the content of the boot camp program, and the nature of the postrelease supervision. In some states, judges sentence offenders directly to boot camp (these are sometimes referred to as front-end intermediate punishments). In others, correctional officials select participants from among prison inmates (referred to as back-end programs). In some states, boot camp participation is voluntary, meaning that an offender must choose it. In others, it is mandatory for those sentenced to it. Offenders in some states can voluntarily drop out of the boot camp and return to prison.57 In terms of content, Mackenzie and her colleagues found that one of the greatest differences among the boot camps in the eight states they evaluated was “the amount of time in the daily schedule that is devoted to work, drill, and physical training versus such treatment-type activities as counseling, drug treatment, or academic education.”58 Some early boot camps were almost entirely military-style programs, whereas others put much more emphasis on traditional rehabilitation efforts. Do boot camps work? Are they more effective than other forms of correctional treatment in reducing recidivism? The good news is that boot camps have been subject to rigorous evaluations. The bad news is that they do not produce lower recidivism rates and thereby reduce crime. In an assessment of ten years of experience with boot camps, a Department of Justice report found that they generally produced “positive short-term changes in attitudes and behaviors” among their participants but that “with few exceptions, these positive changes did not lead to reduced recidivism.” The graduates of some boot camps did have lower recidivism rates, but they participated in camps with more treatment services, more intensive sessions, and more intensive postrelease supervision. In short, there is today no consistent evidence that boot camps are more effective in reducing recidivism than are other types of correctional programs.59 A number of problems affect boot camp programs. The Department of Justice report concluded that “the length of stay in boot camps—usually from 90 to 120 days—was too brief to realistically affect recidivism.” In short, as with many other correctional programs, there was not much “treatment.” The report also found that there was “little or no postrelease programming to prepare graduates to lead productive lives.”60 One-third to half of offenders failed to Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 300 CHAPTER 11 complete the program. There also appeared to be significant net widening because judges or correctional officials placed low-risk offenders in boot camp programs. As a result, overall system costs often increased rather than decreased. One problem that has affected all new intermediate punishment programs is that intensified surveillance (for example, more contacts with parole officers, frequent drug tests) identifies more technical violations of the conditions of release. This increases the failure rate and results in sending more offenders back to prison, a development that eliminates the potential cost savings. Some critics argue that the emphasis on military drill is fundamentally misguided. Yelling at inmates, treating them with disrespect, and forcing them to undergo painful physical exercises may be counterproductive, teaching inmates that disrespect and verbal abuse are the keys to success in life. Such programs also value the most aggressive definition of masculinity. Finally, the legendary rigors of Marine boot camp at least offer a reward at the end: entry into the proud fellowship of the Corps. If prison boot camps offer nothing of comparable positive value at the end but only a return to the same neighborhood with the same bleak prospects (what Hagan refers to as a life socially embedded in crime), they are not likely to have a long-term positive impact on the people who pass through them.61 HOME CONFINEMENT AND ELECTRONIC MONITORING Home confinement (HC) and electronic monitoring (EM) are designed to keep the offender under fairly strict surveillance and control. HC is essentially a curfew. In some cases, it is enforced through EM; in others, it is not. Both HC and EM have the same mixture of goals as does IPS. They are designed to simultaneously reduce prison overcrowding and both control and rehabilitate the offender. EM emerged in 1983 when Judge Jack Love of Albuquerque adopted the Gosslink system for a convicted offender. The idea quickly caught on. By 1996, there were 13,868 probationers and 8,491 parolees in EM programs.62 An early report found EM to be far cheaper than imprisonment: it cost as little as 1,350 per year, versus 20,000 for prison at that time. Basically two different EM technologies are available. Passive monitoring radio frequency systems place a transmitter on the offender (a tamper-proof bracelet or anklet) and a dialer on the telephone. If the probationer leaves the premises, the signal is interrupted, and the dialer automatically calls the probation office. Active monitoring programmed contact systems involve periodic, usually random telephone calls to the probationer’s home. The calling may be done automatically by machine or by the PO’s personal phone call. Initially, the largest group of offenders in EM programs were traffic violation offenders. By 1989, property offenders and drug offenders had become the two largest categories. Sentences generally ran from 60 to 120 days. A Justice Department survey found that most failures occurred within the first two months. Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. TREAT ’EM! 301 About 4 percent of the total sample committed a new offense, and half of those occurred in the first 60 days. About 22 percent of the sample committed a technical violation of the terms of their confinement.63 Many people initially opposed EM because it conjured up images of George Orwell’s famous novel 1984, with Big Brother continuously monitoring everyone’s private behavior. That analogy was not really accurate because EM programs involve convicted offenders and any sentence would involve some loss of freedom. In actual practice, EM does not always deliver on its promises. Although advertised as a technological “fix” for the crime problem, EM systems often have serious technical and administrative problems. The signal can be disrupted by certain kinds of housing construction, and random calls in the middle of the night disrupt the probationer’s sleep (not such a good idea if we want that person to hold a steady job) and require that a staff person be on duty to respond to a violation. A 2008 report by the International Association of Chiefs of Police (IACP) warned that the practical demands of operating an EM system (for example, monitoring the equipment, teaching offenders how it works, monitoring and responding to alerts) increases the workload for law enforcement officers. Also, the IACP warned, an EM system can create a false sense of security that overlooks the possibility of offenders tampering with the equipment or simple mechanical failures.64 Finally, the overall cost savings also represent only a small fraction of criminal justice systems costs. The 12,000 offenders in EM programs in 1992 (probation and parole combined) represented a minuscule fraction of the 4.8 million under correctional supervision that year.65 The intensive surveillance that EM (and IPS) provides creates a special problem for the criminal justice system. It does succeed in detecting violations of probation or parole conditions, and many of the offenders are returned to prison. As the report Performance Measures for the Criminal Justice System pointed out, there is serious disagreement over whether a high rate of technical violations indicates success or failure. If the purpose of EM is to control offenders and detect misbehavior, then EM is a success. But if the purpose is to control costs and reintegrate the offender into the community, then it is a failure.66 Most important for our purposes, evaluations indicate that IPS, HC, and EM are no more effective in reducing crime than conventional prison or probation programs. Offenders in these programs have the same rearrest rate as those on conventional probation or parole. This leads us to conclude: 30 PROPOSITION Home confinement and electronic monitoring do not reduce crime. Lessons of the Intermediate Punishment Movement Reviewing the first ten to fifteen years of the intermediate punishment movement, Petersilia reached some sobering conclusions. Most of the programs were “more symbolic … than substantive.”67 Most seriously, there was no evidence that intermediate Copyright 2015 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights
