Freedom of Information for Criminals: A Great Idea

After reading my post on 24/7 Sobriety, the criminologist David Kennedy was kind enough to send me a copy of Deterrence and Crime Prevention. His book is a tour de force not just for its intellectual value, but for its wisdom about why people do the things they do (cops and robbers both). One of the many valuable lessons of the book is that a good deal of crime can be prevented simply by giving criminals better, simpler information about what the rules are.

Kennedy gives the example of a young gang member with several prior convictions who did not realize that his next gun-related arrest would result in a long federal sentence, and ending up being sent upriver for 15 years for a minor violation (possessing a bullet). A number of other gang members then came in to check with the police to see if they were in the same legal situation and many found out to their surprise that they were. Some law enforcement officials might say “In revealing their status to them the police gave up the chance to send them away for a long time, like the guy with the bullet”. Exactly. The chance goes away because the criminals didn’t carry guns and bullets anymore, i.e., they were deterred once they understood what the rules were.

But deterrence isn’t the only reason to lay cards on the table with criminals. If you had a robot that punished with 100% accuracy every violation of any rule you imposed on your children, would you still tell your children the rules in advance, given that punishment would be perfectly applied with no effort on your part? Of course you would, because you care about your kids and therefore don’t want them punished unnecessarily. When your kids see you take the time to tell them the rules, they know that you care. Many criminals live in neighborhoods where the dominant narrative holds that cops/judges/majority society hate us. When a police officer or judge or some other law enforcement official takes the time to help them understand the rules, it undermines that narrative by showing that someone in authority cares about them. When people feel cared about and that life isn’t rigged against them, they are less likely to lash out and be destructive to themselves and the people around them.

To come back to 24/7 and HOPE probation, both programs have simple rules that are explained transparently to offenders at the outset. This contrasts with the usual situation in court, which is an offender being baffled by the proceedings and hoping meekly to escape punishment. The rules of the courtroom, probation and parole are complex even for the professionals, and the average criminal has lower education, IQ and literacy than the general population. Anyone who has been in court has seen a judge ask a defendant “Do you understand?” and seen the defendant look over at his/her lawyer for a cue, get a nod, and then say “Yes judge, I understand”.

From what I have seen, offenders in 24/7 and HOPE do understand the rules, and have the sense of being cared about, most particularly that the judge and the staff actually want them to succeed, which may be a key reason why most of them fact do succeed. And strikingly, even when they don’t, they typically draw the conclusion that is better for them and society: “I got punished because I screwed up, better not do that again”, rather than “I don’t know why I got punished but I know it wasn’t fair and someday, somehow, someone’s gonna pay”.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College London. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over thirteen thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

10 thoughts on “Freedom of Information for Criminals: A Great Idea”

  1. ¨When people feel cared about and that life isn’t rigged against them, they are less likely to lash out and be destructive …¨ (my italics)

    Explaining the rules does not establish the second premise. Since the rules¨are in fact generally rigged against the poor and ignorant, Kennedy´s and your point is of limited use if it relies on the perceived fairness of the rules rather than their simple existence as rules. True, a bad rule (¨steal a sheep and hang¨) is often fairer than pure arbitrariness. It´s certainly clearer and allows a more rational strategic response.

    Come to think of it, the feely premise isn´t necessary either. ¨I don´t care a toss about your fate, and life´s unfair, but if you do x, then y follows. You choose.¨ Wouldn´t this work almost as well as being nice about it? And in some cases better, when the concern is fake and seen to be so?

  2. James

    I don't follow your arguments.

    Your first point seems to be that whether you know the rules of the game has no impact on whether you think it's rigged or fair – doesn't make sense, if it did tearing down speed limit signs and giving out speed tickets based on a secret handbook known only to the police would be considered as fair as the current system where we inform everyone of the speed limit.

    I don't see your other point either, it's internally contradictory: If I don't give a toss about your fate, I don't bother to tell you that y follows x, why would I do you that favor if I didn't care?


  3. James, you're making an empirical statement. And it is factually incorrect. You can believe in whatever conservative hubris you want, but it doesn't change the reality that behavior is a cognitive process, and involves more than pure reason. Humans are social creatures and very dependent upon social structures and normative processes. I work with at-risk teens, and I see this everyday. For many of them, I am one of the few people in their lives that they feel cares about them, and it influences their behavior, which involves their cognitive perception of their behavior on an ongoing basis.

  4. "Exactly. The chance goes away because the criminals didn’t carry guns and bullets anymore, i.e., they were deterred once they understood what the rules were."

    Perhaps. Or goes away because they take a little more care about not getting caught, but continue to arm themselves because it's a practical necessity of their generally criminal lifestyle. Which it is, is an empirical question. Probably some mix of the two.

    But I agree, in the spirit of Doctor Strangelove: "Of course, the whole point of a Doomsday Machine is lost, if you *keep* it a *secret*! Why didn't you tell the world, EH?"

  5. Keith: my first point is not as you read it. I agree that knowing the rules is prior to any opinion on their unfairness, and having no rules is always unfair. My point is that rules don´t have to be fair for knowledge of them to change behaviour; which will make an information programme more effective, once we drop the very implausible requirement of perceived fairness, and the more plausible but still uncertain requirement of perceived personal concern. Known rules are often (and often correctly) seen as unfair, and concern often perceived as hypocritical.

    On the second point, the level of personal concern needed for effective communication of the rules is very low indeed. A competent prison governor or boot camp sergeant-major would act this way out of simple professionalism, not personal concern. Itá Holywood staple that the gruff, borderline sadistic drill sergeant really has a heart of gold, but it isn´t always this way.

    Eli is quite correct that it´s an empirical question whether such indifferent professionalism is effective in getting the rules across. Thats why I framed it as a question – a real not a rhetorical one.

    I´m very sorry anybody read my comment as denigrating a civilizeed and caring approach to offenders. I would argue that this is probably effective, and anyway should be followed out of self-respect, whether it´s effective or not. But it will be hard to disentangle the effectiveness of niceness generally and the component of niceness tied to the transmission of information about the rules. Trust is a holistic relationship, and you can´t turn it on and off for a blind trial.

  6. This theory – that knowing the rules/procedures and expectations of behavior, being treated with respect, and demonstrated fairness/benevolence of authority – seems to be gaining some ground in criminal justice/public safety research and theory. If you are interested, I suggest reading Tyler's multiple works on Procedural Justice theory, as well as related research (by others) surrounding the complex issues of trust and respect and how they relate to perceptions of police legitimacy and community cooperation with laws and law enforcement.

  7. Note, by the way, that the common practice of draconian rules with unlikely, unpredictable enforcement is pretty much tailor-made for convincing offenders that the rules are unfair and that the enforcers have no legitimacy. Sparse random enforcement is indistinguishable from sparse corrupt enforcement, so it doesn't even help to be honest.

  8. There’s a large volume of research in different disciplines that converges on the same basic point: that authority exercised in a fashion perceived as procedurally fair by the recipient is far more effective, and will often be taken as legitimate by the recipient even when the outcome is undesirable. On the other side, authority exercised for reasons deemed illegitimate is vitiated and can even produce perverse results, including “backlash,” active opposition. What matters here is what the sanction means to the recipient or potential recipient, and “source characteristics” are an important part of creating that meaning.

    In practice it turns out not to take too much to influence these dynamics. Consider the situation the deeply stressed minority neighborhoods I work in. It is a standard narrative there that drugs are present in the community only because the government brings them in, and that drug enforcement is the excuse by which law is used to continue the historical oppression of blacks by new means. The meaning of a drug arrest in that setting is “the racist conspirators have reached out and touched you,” and it can convey standing to its recipient. In the High Point drug market strategy Mark has written about here and in When Brute Force Fails, we suspend cases against nonviolent dealers as part of an explicit conversation with the community that emphasizes that the police are not happy with the status quo either, the understanding of law enforcement that wholesale incarceration hurts the neighborhood, and the recognition that the police have been producing unintended harms. That frees the community to stand up and speak against dealing. If the dealers go back to the corner, they’re arrested on the outstanding case. The meaning of that arrest is “you’ve failed the community and our agents have removed you” – very, very different. Not surprisingly, the first doesn’t work very well, and the second does.

    The kind of prior notice Keith writes about runs spectacularly against the dual narratives of offenders that the police hate them personally and of law enforcement that offenders are irrational sociopaths. Deterrence and enforcement both represent relationships between parties, and this resets the relationships. It uncovers limited, but very important common ground: both sides would rather see changed behavior than actual delivery of consequences. It addresses the “legal cynicism” – distrust in law enforcement – that so pervades such neighbohoods, and frees them to pursue “legitimate” avenues of dispute resolution rather than handling things personally (civil society vs. state of nature, for you political philosphers). Big, powerful stuff.

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