Crime and Consequences

Last week the Pew Center on the States produced a report highlighting the statistic that the prison and jail population has topped 1% of the total population. The press release is here and the full report is here. In reaction, Investors Business Daily had this editorial noting that prison increases coincided with a dramatic drop in crime. Paul Cassell had this post at the Volokh Conspiracy with a similar graph making largely the same point.

The graph above shows the rate of violent crime (FBI violent index crimes per 100,000 population, in red on the left scale) and the number of prisoners in each year divided by the number of violent crimes in the same year (in blue on the right scale).

Our position has always been that the prison population relative to the crime rate is a more meaningful number than the ratio to the general population. The former is the ratio that tells us how severe or how lax our sentencing policies are. The overall incarceration rate that Pew and others cite is actually the product of two factors representing two different decisions: (1) the crime rate, caused by the decisions of individuals to commit crimes, and (2) the rate at which society incarcerates criminals, which in turn is the product of its ability to apprehend and convict them and its decision on punishment of those it does convict. The factors must be separated to evaluate the effect of these different decisions by different actors.

The blue line shows that the United States did indeed go "soft" in sentencing in the 1960s and 1970s. In 1960, we had 74 people locked up for every 100 violent crimes committed in that year. By 1974, that ratio had dropped to less than a third of its previous value, only 22. In the same period, violent crime skyrocketed from 161 per 100k population to 461. Sentencing then got tougher -- gradually at first and then sharply in the 1990s. Violent crime fell, but not all the way back to its early levels.

As we have noted many times, (1) correlation does not prove causation, and (2) many factors go into determining crime rates. The extent to which soft sentencing caused the crime increase and tough sentencing caused the crime drop remains debatable. However, among serious scholars, even those opposed to tough sentencing have to grudgingly admit that sentencing is a substantial factor. A book titled The Crime Drop in America was published in 2000, edited by Alfred Blumstein and Joel Wallman. Chapter 6 is The Limited Importance of Prison Expansion, by William Spelman. Despite the dismissive title, Spelman concedes in the end, "The crime drop would have been 27 percent smaller than it actually was, had the prison buildup never taken place."

Other estimates run higher, of course. But let's take the opponents' estimate as a floor. They certainly would not have fudged it upward, so we can safely proceed on the assumption that 27% or more of the crime drop was caused by tougher sentencing. In the social sciences, a variable that explains 27% of the outcome is considered a large effect size.

More importantly, think of what this means in human terms. If violent crime rates in the years 1995-2004 were 27% lower than the average of the 1980s because we got tough, that means nearly half a million people were not robbed, almost 19,000 were not raped, and another nearly 19,000 were not murdered as a result of those policies. Remember, these stunning numbers are calculated using the other side's estimate. If more of the crime drop is attributable to tough sentencing, the real numbers are even higher.

It is indeed regrettable that the downward spiral of our culture and the decline of personal responsibility have reached a point that 1 in 100 persons have chosen to commit crimes for which they are incarcerated. We certainly can and should reexamine individual laws to see where changes should be made. For example, the law counting 5 grams of crack cocaine the same as 500 grams of powder for sentencing purposes -- proposed and supported by liberal Democrats when it was enacted -- is certainly overripe for such reexamination. But we need to be very careful.

The soft sentencing policies of the 1960s were a disaster. Many innocent people paid dearly, in many cases mortally, for the policymakers' delusion that they knew how to "fix" criminals and we didn't need "harsh" sentences any more. We must not repeat that mistake.

Posted by Kent Scheidegger at 01:26 PM | Permalink | Comments (8)

ipods to blame for crime? News reporter Scott Gutierrez, from seatlepi.com, sat in on a panel discussion Tuesday sponsored by Urban Institute. Crime researchers are exploring the correlation between ipods and the increase in crime over the past few years. In New York City, ipod and cell phone thefts raised felonies committed on subways. In a similar trend last year, Gutierrez reported teens were responsible for approximately 20 ipod muggings in West Seattle.

DP Commission in Maryland?. Still struggling with legislation to repeal the death penalty, Governor Martin O’Malley is voicing support for an alternative to the delay. Washington Post’s staff writer John Wagner reports that Senator Jamie B. Raskin has a bill to establish a high-profile commission to study the issue and provide a “candid assessment” of the merits of the death penalty. Sound familiar? Since the state’s highest court has ruled that Maryland's lethal injection protocol was not been properly adopted, O’Malley has been dragging his feet on the new regulations. Senator Alex X. Mooney who was last years swing vote on the Judicial Proceedings Committee called it commission another delaying tactic. “It’s been studied a lot, so I don’t know if it’s that crucial."

UC Student faces Explosive Charges. Molly Hennessy- Fiske reports in the L.A. Times that Mark Christopher Woods, 19, was arrested Wednesday night on suspicion of possessing materials to make explosives. Investigators reported finding partially assembled pipe bombs in his dorm room. Students of the Tercero Residence Halls were evacuated and stayed overnight in the dining hall. They were allowed back into the dorm on Thursday and school remained in session. Woods was scheduled to be transferred to Yolo County Jail on Thursday.

Tennessee: New DUI Laws
WDEF News 12 reporter Nordia Epps writes that new laws will give out harsher penalties for DUI offenders who kill or hurt children who are passengers in their car and create a registry for repeat offenders. In addition, the state of Tennessee will reduce the legal alcohol level for repeat offenders and those pulled over on suspicion of driving drunk will lose their license if they refuse to submit to a test.

Posted by CJLF Staff at 12:11 PM | Permalink | Comments (0)

Virginia Governor Tim Kaine has once again vetoed legislation to repeal that state's triggerman rule, reports Mason Adams for the Roanoke Times. This statute automatically exempts from the death penalty a murderer who uses someone else to actually commit the killing, with a few exceptions. The state was able to fit John Allen Muhammad, the D.C. sniper, into one of the exceptions, but it was a tight fit. Maryland had no applicable exception, so this serial killer escaped the only fitting punishment for the six murders he was convicted of in that state.

A person who uses another to commit a murder as Muhammad did is more culpable, not less, than a solo actor. In cases where the nontriggerman is merely an accomplice rather than the driving force, the jury can take that into consideration as a mitigating circumstance. A bright-line exclusion of nontriggermen is irrational.

Gov. Kaine's only stated reason for his action is an opposition to "expansion of the death penalty." But Virginia does have the death penalty whether he likes it or not, and making the penalty fit the heinousness of the crime should have priority over the expansion/contraction issue.

Posted by Kent Scheidegger at 11:54 AM | Permalink | Comments (1)

College Background Checks. Byron Ackerman uticaod.com reports that Herkimer County Community College officials are backing legislation that would allow peace officers to conduct background checks on students involved in a possible crime. The bill is also being supported by State University of New York. Recently, there have been assaults and stabbings on campus which has students concerned. HCCC President Ronald Williams believes the recent events could have been prevented if peace officers had the ability to conduct background checks. However, there are some concerns with violating a student’s privacy.

A First Amendment issue raised by a student against her school administrators is reported by the AP in today’s Washington Post. Avery Doninger claims that officials at Lewis S. Mills High School violated her free speech rights when they banned her from serving on the student council because of a blog journal entry written on her home computer. A federal lower court supported the school in Doninger’s punishment because the blog addressed school issues and other students could read it. The Supreme Court made a ruling that officials could bar vulgar and lewd speech if it undermined the school’s mission. However, the ruling was based on cases that involved events that happened at school or during a school activity.

Connecticut: Lawmakers want to ban locking up juveniles
Hartford Courant reporter Colin Poitras writes that U.S Rep. Chris Murphy is introducing the “Juvenile Justice Improvement Act” to Congress. If the act is passed, it would ban states from incarcerating juveniles who repeatedly run away and prevent juveniles that are charged with murder or rape from being locked up in adult jails . Instead, states would be required to put juveniles in programs that are known to work. Murphy says that since 1993, there has been an increase of 150 percent of teens that are incarcerated with adults. Also, Rep. Toni Walker, who supports juvenile justice reforms, said “Prosecuting youth in adult criminal courts increases the likelihood they will re-offend.”

Arizona allows guns on college campuses
According to this New York Times report by Randal Archibold, State Senator Karen Johnson sponsored a bill that passed with a 4 to 3 vote last week. The bill will allow people in colleges to carry a firearm if they have a concealed weapon permit. The Brady Campaign to Prevent Gun Violence, says, “15 other states are considering similar legislation for students and faculty to carry guns on campus.” Also, Jason Lewis, a student at University of Arizona, said, “It would at least let me protect myself and be a deterrent for criminals.”

Posted by CJLF Staff at 10:29 AM | Permalink | Comments (0)

The Southern Appeal blog has been granted rehearing, though not en banc. Welcome back. (Hat tip: Orin Kerr at VC.)

Posted by Kent Scheidegger at 09:05 AM | Permalink | Comments (0)

The front page of today's Wall Street Journal (subscription required) has a lengthy article about the most widely used personality test, the Minnesota Multiphasic Personality Inventory (MMPI). The focus of the story is about a specialty sub-scale developed by Dr. Paul Lees-Haley called the "fake-bad" scale which is used to detect malingering. While the focus of the WSJ piece is on the scale's increased use in personal injury lawsuits, it is also used in criminal matters as well.

It's safe to assume that much will be said by the professional mental health field in the coming days about this story. Among those comments will be the maxim that the MMPI is "just one piece of data" used in determining psychological states among litigants and defendants. This is surely true, but the reliance (perhaps even over-reliance) by some forensic psychologists on personality measures as lie detectors often gives these tests more weight than they deserve.

Update: Ted Frank at Point of Law has some brief thoughts as well. While I agree with Ted that there is indeed some peer review research behind the scale, there are good reasons to be wary of bubble sheet forms that are proffered as measures of deception. It's not so much that these measures can't measure deception, rather they can be easily abused by experts who use them irresponsibly.

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The Supreme Court will hear argument on Tuesday, March 18, in Heller v. District of Columbia to review a lower court holding announcing that the DC law banning firearms was unconstitutional. In this article from the Wall Street Journal, Harvard Law Professor Laurence Tribe urges judicial restraint.

Posted by CJLF Staff at 01:16 PM | Permalink | Comments (0)

The current issue of the American Journal of Psychiatry has an editorial arguing for the inclusion of "internet addiction" in the forthcoming 5th edition of the Diagnostic and Statistical Manual for Mental Disorders. Jerald J. Block, M.D. states:

Internet addiction appears to be a common disorder that merits inclusion in DSM-V. Conceptually, the diagnosis is a compulsive-impulsive spectrum disorder that involves online and/or offline computer usage and consists of at least three subtypes: excessive gaming, sexual preoccupations, and e-mail/text messaging. All of the variants share the following four components: 1) excessive use, often associated with a loss of sense of time or a neglect of basic drives, 2) withdrawal, including feelings of anger, tension, and/or depression when the computer is inaccessible, 3) tolerance, including the need for better computer equipment, more software, or more hours of use, and 4) negative repercussions, including arguments, lying, poor achievement, social isolation, and fatigue.

Words like "variants", "drives", "withdrawal", and "tolerance" imbue a sense that this "disorder" is somehow akin to opioid or cocaine addiction. It's a slight of hand whereby problematic behaviors are transformed into medical illnesses in need of professional treatment. But what behavior is immune from such conceptualizations?

Posted by Steven K. Erickson at 12:07 PM | Permalink | Comments (6) | TrackBacks (0)

Brain Scans: "Figuring out just what types of neuroscience are ready for the courtroom is one of the goals of a $10 million Law & Neuroscience Project funded by The John D. and Catherine T. MacArthur Foundation," reports David Caruso for AP. Brain scans have become common in murder cases, with impressive looking pictures that may or may not have anything to do with human behavior. While we tend to be skeptical of any effort funded by this foundation, the study group appears to have some appropriately skeptical members, including Stephen Morse of U. Pa. "When people see pictures of the brain, they tend to fall prey to what I call 'the lure of mechanism.' They tend to think that we are all machines," he said.

Re-Entry Court is a program in Allen County, Indiana providing "[r]elease[] from prison early in exchange for electronic monitoring and a structured life," according to this story in the Fort Wayne Journal-Gazette by Ron Shawgo. We need to experiment with innovative programs, to be sure, but the experiments need to be evaluated with solid methodology and thoroughly checked data, so we can terminate the ones that don't work. "The newspaper’s analysis discovered several errors and omissions in the program’s data...." Evaluation of a program by people invested in it involves an obvious conflict of interest, and claims of savings and success in such evaluations should be regarded with caution.

Hackers interfering with criminal activity on the Internet
According to the Press Association, organized criminal gangs are having a problem with hackers interrupting illegal trade on the web. Sharon Lemon, deputy director of e-crime, says, “Criminals in a way, are policing the environment from the people who used to spread worms because they need the internet to be working.” These criminals are known to pay computer boffins to go through school to be a step ahead of their opponent. Next week in London, businesses, government officials, and police specialists from over 35 countries will come together and discuss what best ways work in stopping online crime.

Alabama: Felons struggling to regain Voting Rights
Inside the New York Times reporter Shaila Dewan writes that Rev. Kenneth Glasgow, founder of a ministry called The Ordinary People Society, helps people with past criminal backgrounds to vote again. According to the state attorney general, people are not allowed to vote if they commit a felony involving moral turpitude. The problem is that neither legislature nor the attorney general office has release a list defining what crimes are under moral turpitude. On a national standpoint, 5.3 million people do not have the right to vote because of criminal history. Ms. Reynolds, who was convicted of drug possession, received help from The Ordinary People Society, and said, “Voting, that’s a part of getting back to normal life.”

CRJ class proposed a bill on Eyewitness ID Procedures
According to the Eastern Kentucky University school newspaper, an advanced law class proposed a bill to help improve eyewitness identification procedures for law enforcement. Ashley Goff, a recent graduate from EKU who helped, said, “The House Bill 298 is to improve the chances of identifying the guilty, while reducing the risk of convicting the innocent by improving the accuracy of eyewitness identification in criminal cases.” If passed, it will be the first legislation of its kind in Kentucky.

Posted by CJLF Staff at 11:22 AM | Permalink | Comments (0)

Today, the Ninth Circuit designated for publication its order of February 14 on remand from the United States Supreme Court in Arave v. Hoffman.

Accordingly the U.S. Supreme Court vacated this court's judgment to the extent that it addressed the claim of ineffective assistance of counsel during plea bargaining, and remanded for future proceedings. We now instruct the district court to dismiss with prejudice Hoffman's claim of ineffective assistance of counsel during plea bargaining. The district court's grant of Hoffman's habeas petition on his claims of ineffective assistance of counsel with respect to sentencing still stands. The State of Idaho should proceed with the resentencing of Hoffman as ordered by the district court.

How nice. They "instruct" the district court to do substantially what it did correctly the first time before they mucked it up.

Posted by Kent Scheidegger at 10:11 AM | Permalink | Comments (0)

The Supreme Court issued one opinion in a criminal case today, Boulware v. United States, No. 06-1509, but it's really more of a tax case.

In the orders list, the Court asked for the views of the Solicitor General in a state-prisoner capital habeas case, Harbison v. Bell, No. 07-8521. That is an unusual order for this type of case. The Sixth Circuit opinion in the case is here. The case involves the use of Rule 60(b) of the Federal Rules of Civil Procedure to reopen a habeas case. Before 1996, the usual method was to file a successive habeas petition, but Congress cracked down hard on that practice in the Antiterrorism and Effective Death Penalty Act of 1996. The Court addressed Rule 60(b) in this context in Gonzalez v. Crosby in 2005.
Update: Three of Harbison's petitions are on the orders list today. Two of them, 07-8519 and 07-8520, were denied. We are informed that the third, on which the Court requested the views of the SG, deals with appointment of federal habeas counsel for state clemency proceedings. See 18 U.S.C. § 3599(e), added by P.L. 109-177 § 222(a). As this involves federal taxpayer dollars for a purely state proceeding, the involvement of the federal government makes more sense. It's an odd provision of the code, but nowhere in the Constitution does it say, "Congress shall make no odd laws."

Also from the Sixth, the Court denied certiorari in the Getsy case, previously noted several times in this blog, including here and here.

The Court also denied certiorari in the case of Alfaro v. California, No. 07-8483. Alfaro is one of the few women on California's death row. In 1990, she murdered 9-year-old Autumn Wallace in the course of committing a burglary and robbery. The Cal. Supreme opinion is here.

Posted by Kent Scheidegger at 07:39 AM | Permalink | Comments (1)

Criminal law and procedure buffs may want to check out the new blog, Less Than The Least, authored by the Profs. Bill Stuntz (Harvard) and David Skeel (Penn).

What makes Less Than The Least so intriguing comes from it's description:

We are both law professors and evangelical Protestants – a weird combination in our time. We hope it’s also an interesting combination. We plan to write about the things that interest us, professionally and personally: crime and criminal justice (Stuntz), corporate governance, credit, and bankruptcy (Skeel), the culture wars, politics, literature and the arts, and other topics.

Bill Stuntz was my major paper adviser during my graduate work at Harvard Law School. He is also one of the most refreshing and thoughtful scholars in the Legal Academy. I'm less familiar with Skeel, but I'm sure his work is excellent as well.

As mentioned previously, I think religion has much to offer our criminal justice system. I look forward to reading Stuntz & Skeel.

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