smart on crime
It’s time for real reform
Mar 3rd
Years ago, when two men broke into a house overnight in the suburban town of Cheshire, CT and in the most gruesome manner imaginable killed three women, leaving one survivor, the calls for an overhaul of our criminal justice system were swift and unrelenting (I could have linked every word in that overwrought sentence to a separate post, but I’ll spare you and leave you with just this link instead). Some proposals – three strikes laws, for instance – were thankfully dispatched as ineffective and onerous, while others increasing penalties and creating new laws where old ones already existed were passed and continue to terrorize our criminal courts to this day.
But there was an event and swift, decisive reaction. There was outrage and fist-thumping and a general cacophony best described as madness.
Now, some 5 years later, there are equally troubling events bubbling to the surface in this land of steady habits. These events demand a similarly swift and decisive response from those that purport to speak on our behalf. The difference, however, is that this response needn’t be born of passion, but rather of compassion and logic.
First – and forgive me for being so late to this game – the wound that has opened and refused to scab and heal: racial profiling. Starting with the indictment of 4 East Haven police officers, the mayor’s boneheaded remarks, the long-overdue resignation of the police chief all the way up to the Hartford Courant’s analysis of over 10,000 traffic incident reports, it should be clear to everyone, not just those who are nestled inside the system, that there is an undeniable bias against minorities:
[Just the other day, I was viewing this slideshow of photographs taken by a reporter in 1983, documenting the protests against the KKK right here in CT and for a brief moment, deluded myself into thinking that racism and racial stereotyping were thankfully a thing of the past. Don't make the mistake I did. It's still there. You just can't see it.]
The disparity was most striking among Hispanic motorists, who were more likely than both whites and blacks to be ticketed in each of 13 categories of violations — such as speeding, cellphone violations, running stop signs and improper license-plate display — for which there were at least 1,000 stops. Black drivers fared worse than whites in 10 of the 13 categories.
For violations of state laws on tinted windows, white motorists were ticketed 12 percent of the time. For blacks and Hispanics, the figure was 17 percent and 24 percent, respectively.
Among drivers stopped for an improper turn or stop, blacks were nearly 50 percent more likely to be ticketed than whites. Hispanics were twice as likely.
That this is something that should be prohibited occurred to the wise men of the Senate as far back as 1999, when they passed a state law outlawing profiling and requiring each department to submit racial data for analysis. But like a bandaid on a gaping head wound, it was never more than lip service. The reason for that, of course, is that this problem is systemic. It’s also a problem without a solution, at least as currently imagined. So let’s assume someone gets pulled over because of racial profiling and gets a ticket. So what? What can anyone do about it? What’s the remedy? Short of a vindictive prosecution type of argument, how is someone even going to prove it? And what’s the legal basis for a judge or prosecutor to take that into account if we ever get over the hurdle of making them believe that that’s the cause of the stop?
The change has to come from the system, not imposed on it. Those in power – judges and prosecutors – have to first admit that this problem exists and then view stops with skepticism and suspicion and not take the word of police officers as gospel.
A few years ago I worked with a clerk who was a young Hispanic male. In the three years we worked together, he got 7 tickets, all from the same police department in the town where our office was. We all knew he got pulled over because he was Hispanic. Fat load of good it did him. He still had to pay 7 tickets.
The only other solution, of course, is the wholesale federal indictment and prosecution of errant officers. This, obviously, is not tenable. But there have to be repercussions; a system purporting to provide justice cannot turn a blind eye to the injustices that populate its halls on a daily basis.
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Let’s play a little game. I’ll posit some well known facts and then I’ll tell you whether they’re true or not.
Q: Is it true that all sex offenders kill their victims?
A: No.
Q: Is it true that all sex offenders are possessed by the devil and can’t even be killed by the Colt?
A: No.
Q: Is it true that the minute you let a sex offender out of jail, he goes and eats another baby?
A: No.
Q: Is it true that sex offenders have the highest (or even high) rate of recidivism?
A: No.
A study [PDF] by the state Office of Policy and Management has finally vindicated what I (and others) have been saying for a long time now: sex offenders don’t reoffend at the same rates as other felons and the common perception of their rates of recidivism is incorrect. From the study:
The study tracked 14,398 men for a five-year period following their release or discharge from a Connecticut prison in 2005. In that cohort, 1,395 men had a previous arrest for a sex offense, 846 had a conviction and 746 served a prison sentence, either the one ending in 2005 or an earlier one, for a sex offense.
Looking at the 746 men who had served time for a sex crime, 27, or 3.6 percent, were arrested and charged with a new sex crime; 20, or 2.7 percent, were convicted of a new sex offense; and 13, or 1.7 percent, were returned to prison for a new sex crime. Many among the 746 committed other crimes — many for parole violations or violating the conditions of the sex offender registry — but not sex crimes.
Those are spectacularly low rates (yes, yes, I know, one child is one child too many) that don’t justify the resources and the energy put into incarcerating these offenders and nor do they justify the onerous sentences handed out to all and sundry.
Obviously there are those who have committed grievous offenses and must be punished accordingly, but that’s exactly my point: that, contrary to popular belief, sex offenders aren’t one-size fits all and we must treat them as such. There are those who are low risk, those who are medium risk and those who are high risk. There are those who are misguided teens with angry parents and those who are truly predatory. Our system paints them all with the same scarlet letter and such a homogenous view does nothing to keep us safe or to put our resources where they are most needed.
The Court article linked to above calls for the creation of a tiered registration system. There already exists a Risk Assessment Board. Fund it. I have additional suggestions: pass legislation that makes it clear that an offender does not have to admit to committing the crime during treatment, that they don’t have to confess to other crimes. People are routinely violated (yes, I know, it’s an awful word) for failing to “admit” their crime during treatment even if they steadfastly maintained their innocence throughout the proceedings. Hey, here’s a news flash: innocent people go to jail all the time.
Let’s focus our resources on determining who out of those truly pose a danger and who can be rehabilitated. The less people we ostracize, the safer we are.
And so as this short legislative session continues, the question comes into focus: will our legislature be strong enough to eschew the faulty “tough on crime” for the more appropriate “smart on crime”? Will these events – the racial profiling and the studies – be enough to jar them out of their steady habits and, for once, enact some meaningful reforms?
Crime: reality and perception
Aug 24th
Ran across this interesting article in Prospect Magazine from the UK, on the shifting policing and perception of crime, violent and otherwise:
The consequence has been that violent crime—defined as actions which cause injury or serious threats to do so—has fallen steadily for about the last 15 years. The official statistics do not show a fall in violent crime when comparing offences now with those recorded before 2002-03—quite the opposite, in fact. This was because of a foolish agreement which attempted to make recorded crime a perfect representation of reality, so that a crime had to be recorded if reported even if the police officer did not believe it had happened. Moreover, the definition of violent crime was greatly widened, with the result that more than 50 per cent now falls into the category of—wait for it—”assault without injury.” It would be hard to conceive a more perfect weapon for opposition parties to beat a government with—as the then shadow home secretary, Chris Grayling, unhappily showed during the election campaign. This is probably why the new government seems to be casting about for someone other than the home office to be in charge of crime statistics. Perhaps they will even give them back to the police.
In 2008-09, the annual murder rate in England and Wales was 651, lower than at any time in the past decade. Moreover, the number of children under 16 killed by strangers was two. In 2006, UN figures show that England and Wales had 16 murders per million population, far lower than the US at 59 and roughly equal to France, Canada, the Netherlands and Germany. (The figure for Colombia was 611.)
And yet the “broken Britain” mantra remains—not because we have become a more violent society, but because we have become a much more violence-averse society, in which such acts are widely reported and vilified.
It is interesting to see that contradiction exists in other countries besides the US. I know little about the state of television in the UK, but judging by this article it is safe to assume that the strains of the 24 hour news cycle exist there as well, forcing the media to turn every report of crime into a sensationalist warning that crime is on a meteoric rise.
It is also somewhat heartening – deflating? – to see that politicians are politicians the world over, especially when it comes to criminal justice policies.
There are many more interesting themes and points in the article. I recommend reading it all.
It’s time to wake up (updated)
Dec 27th
It’s a different world today than it was in the ’80s, ’90s and even the early whats. The economy may or may not be recovering, but one thing is for sure: budget deficits are spiraling out of control. Crime may be down, but the workload of the criminal justice system is up. In particular, the burden on public defender systems is one that has rarely been seen before.
Whether this is a product of reduced funding, of lengthy sentences coming home to roost, of a zero-tolerance “tough on crime” policy enacted years ago or of the sheer overcriminalization of our society is an open question (my guess: a mix of them all). When a small state like CT has 1663 crimes defined in its statutes (and that’s in 2006; several more have been added since) and when books are written warning us that we commit three felonies a day, it’s time for someone to sit up and take notice. And by someone I mean those with the power to change the direction we’ve gone in: legislators and voters. So you, all of you.
The repercussions of too many people in the justice system are beginning to reverberate throughout the country: Georgia is on its 4th lawsuit to force indigent defense spending; Michigan is being sued by three defendants who claim that the lack of funding forced their public defenders to pressure them into entering pleas of guilty; the Missouri Supreme Court recently allowed public defenders the nuclear option of shutting down their doors and refusing cases if caseloads got unmanageable; the costs in Ohio are rising quick; the Fresno public defender’s office got permission to lay off 6 attorneys before the end of the year to balance their budget; and contract attorneys in Nebraska have been receiving a $100 flat fee instead of $50 per hour for all misdemeanor cases.
Should I even go near the financial black hole that is the death penalty? How, in times where basic rights of defendants may be in jeopardy – ordinary run of the mill defendants, mind you – can we even consider sustaining the machinery of death?
This will not end anytime soon and even if there is an alleviation of the financial crisis, the impact on the criminal justice system will be temporary. More crimes will be committed, more knee-jerk reactions will be induced and harsher sentences will be given out. The burden continues to build until there is a fundamental change in the way we think about the numbers, the crimes and the system.
A report from 2000, that I’ve mentioned before, seems to have gotten it right. Too bad no one is listening. I’ll reprint the salient points:
Prison overcrowding has a cyclical pattern in Connecticut — reaching a crisis point about every 10 years. The committee report showed most of the causes of prison overcrowding occurred outside the administration and jurisdiction of the Department of Correction and these complex issues and problems cannot be addressed by a single state agency. Specifically, the program review committee identified five main causes of prison overcrowding. They are:
- Despite the decrease in arrest and crime rates, the number of offenders in prison or jail continued to increase due to the “war on drugs”, increased funding for police, increased role of victims and victim advocacy groups in the court process, added bed capacity in the correctional system, recidivism and technical violations of probation and parole, harsher penalties for certain types of crimes, and narrowed eligibility for community release and alternative sanction options.
- Convicted inmates were remaining incarcerated for a greater portion of their court-imposed prison sentences as a result of the shift from an indeterminate to a determinate sentencing structure, elimination of “good time”, creation of time-served standards for parole eligibility, and the enactment of several “truth in sentencing” initiatives.
- The aggressive “tough on crime” approach supported by the legislature and adopted by the executive and judicial branches allows the criminal justice system to narrow its use of discretion and take a more conservative and less controversial approach to punishment.
- A lack of prison beds, especially high security and pre-trial beds, forced DOC to operate at capacity.
- Poor planning and a lack of an accurate population projection and offender needs analysis contributed to the cycle of overcrowding and hampered DOC’s efforts to adequately plan for new or expanded facilities.
In reviewing options available to manage and control growth of the inmate population, the committee found Connecticut cannot build its way out of a prison overcrowding crisis. However, prison expansion is one model to address prison overcrowding. This strategy has been Connecticut’s primary response to prison overcrowding over the past 20 years. It is the simplest but least effective and most expensive approach. Services in this model are concentrated primarily on the small percent (25 percent) of the offender population in prison.
And yet here we are: more crimes, longer sentences and an almost unmanageable burden. We’re still fighting the absurd war on drugs and on parolees and probationers. While our prison population has seen somewhat of a slight decline from the record numbers of last year, it would be a tremendous mistake to consider that an improvement. The record numbers were the result of the Governor’s ban on parole. But don’t let that obscure the fact that even prior to the ban, the population numbers were already at the breaking point.
And it’s not going to get any better. Per the OPM‘s most recent projections, the population is expected to increase from its current numbers to around 18, 942. [Here are the Dec 2009 monthly indicators.] The most recent breakdown of inmates by crimes is this one from 2007. And here’s the most recent recidivism study [there's a wealth of information in there if you're interested].
So how is this to be done? Over the years, I’ve made many suggestions: legalize marijuana, get realistic about prison sentences, divert all non-violent offenders into treatment and community based rehab, address the problem at its root, etc.
[Update: This NYT editorial makes the case for smart reforms, pointing to a slew of legislation pending in NJ to make the prison system more rehabilitation centric. Among some of the proposals is one akin to the ban the box idea implemented in New Haven earlier this year.]
But it’s all a futile exercise. It’s never going to happen unless there’s a fundamental shift in the thinking. That shift may well be driven by the financial engine. So how about taking a different tact. How about we keep detailed statistics: how many people end up going to jail for a violation of probation for drug problems instead of to a treatment facility? Let’s keep a record of that for 3 years and calculate the cost of sending that person to jail. How about defendants sentenced to 7 years in jail where 5 years would have been just as good. Keep a track of the costs there. How many inmates were denied entry into programs for lack of beds and so instead were forced to take a prison sentence? Let’s keep track of that.
At the end of 3 years, let’s add it all up and look at the staggering cost of our penal system. Let’s put it into real numbers and compare it to the budget shortfall. Extrapolate that over the last 20 years and I bet we will see that these “tough on crime” policies have come at a significant, tangible cost to us.
Non sum qualis eram
Nov 17th
From the NYTimes comes this heartwarming story of one of the nation’s elite universities privately funding an educational program in one of CT’s toughest prisons. Starting this year, Wesleyan brings its excellent curriculum and stringent admission requirements to prison, in an effort to educate and rehabilitate inmates, something the State of Connecticut and the DOC have long given up.
For 19 spots, there were 120 applications, and rightly so. This program presents an unique opportunity: to get a high-level education and to attempt to rebuild one’s life and prepare for an eventual release into a world that won’t acknowledge their existence (for some). There are several remarkable things about this program. One of them is that the crime of conviction is not a factor in who gets accepted into the program. So whether you’re a murderer or someone who was selling drugs, you have an equal shot at getting accepted. The second feature that struck me was that while there is no guarantee that graduates of this program will get a degree from Wesleyan, they will be entitled to access to career services upon release.
Imagine that! Inmates will have somewhere to go, armed with an education and the possibility of a degree and get assistance in finding a job. The State should be ashamed of itself.
Reading this article, I learned some things about Wesleyan and its tradition and history:
But the university has a long history of civic engagement that traces back to its Methodist roots. It is named after John Wesley, an 18th-century minister who championed prison reform and helping the downtrodden. Two students, Russell Perkins and Molly Birnbaum, who had volunteered in prisons as students, revived the idea last year when they were seniors and figured out a way to finance it.
What’s even more stunning is that this proposal was scheduled for a vote the very same day that a student at Wesleyan was gunned down in a bookstore. The school merely postponed the vote 2 weeks and during that subsequent vote, it was approved. Goes to show you that to recognize that not all “criminals” are the same, you merely have to have your head screwed on straight.
Of course, this brings the usual din of dissent and cries of “wah, you’re helping those scum criminals” from the usual suspects. I don’t have very many good things to say about the State’s victim’s advocate (none, really), so I’ll just quote her and let it speak for itself:
So long, farewell, don’t let the door hit you on your way out
Nov 10th
[Alternate post titles: So long and thanks for all the blog fodder; This just in: The Law now has a weak pulse]
So, it’s probably unnatural and unhealthy to be so giddy upon learning that Gov. Rell has decided not to seek re-election, but as most of you know, I can’t stand the woman. And that’s putting it mildly. I let out an audible yell yesterday when Ann Nyberg tweeted that she wasn’t going to run. My colleagues looked at me, much like they always do, like I had three heads. So maybe my disdain of the American Idol Governor knows no bounds.
But there’s good reason. After all, she has singlehandedly done so much to create such a disregard for the law and the rule of law, that sometimes I wonder who is worse: the law-breaking “criminals” she sought to protect our white community from or the law-ignoring bureaucrat.
She was the most dangerous of the “tough on crime” pols: sweet, nurturing, grandmotherly. She would lull everyone into sleep with her gentle affect and then decree the most outrageous acts of lawlessness this State has seen this decade.
First, there was Cheshire. Oh boy was there Cheshire. The brutal crimes in a white suburban neighborhood served not only to rouse the Governor from her mid-term siesta, but also had the side-effect of completely blinding her to common sense, and well, the rule of law. So the first thing she decided to do (well, sort of) was ban parole. That lasted for 4 months and resulted in severe overcrowding and a tremendous burden on state resources. That’s when Colin McEnroe coined the moniker “The American Idol Governor“. I still can’t get enough of that. She then proposed some truly scary and not very well thought out “reforms” of the criminal justice system, some of which unfortunately made it into law. Then she wanted CT to have a three-strikes law, in the face of all scientific research on its uselessness. Then came the unhinging, aka, “The David Pollitt Project“. I’m not even going to touch that. And finally, the veto of the death penalty abolition bill.
I write all of this, not to disparage her, but to remind myself and you – voters all – of the absolute effing nonsense we’ve had to put up with these past few years. Will any of the people who’ve announced they’re running for Governor be any better? They almost have to, don’t they, because it can’t get much worse than this.
So while I wish her well in her personal life and hope that her health remains strong, I will not be sad to see her become former Governor Rell. I’m not sure there was a person less equipped to take on that job.
And now, on to the big question. What needs to be done? The first response is obvious: abolish the death penalty. But there are so many more things that need to be changed about the criminal justice system in our State. In my mind, there’s only one candidate who is qualified to do that. So, you guys can be the first to hear it: I am hereby announcing my candidacy for the Governor of the State of Connecticut and I will be running on the Smart on Crime platform for the “It must be easy; she did it for so long” party.
More details about the, well, details of my platform will follow in subsequent posts. I’m now going to go and do a cartwheel.
Repairing Windows: Disorder to Order
Nov 28th
Two and a half years ago, I wrote (rather pithily and ignorantly) about some who were questioning the Broken Windows theory. The Broken Windows theory, which most of you I’m sure are aware of, was posited by George Kelling and James Q. Wilson in a 1982 article in The Atlantic Monthly [pdf version here]. The title was taken from this simple explanation for the theory:
Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside.
Or consider a sidewalk. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of trash from take-out restaurants there or breaking into cars.”
Theories are, of course, the products of fertile imaginations.
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