If you happen to be around Stanford tomorrow….

Please join me at their health policy forum to talk serious mental illness and crime. I’ll be on a panel with the LA County Sheriff Lee Baca and the chair of psychiatry at Stanford, Dr. Laura Roberts. The policy forum is open to the public and will be held this Thursday from 11:30 A.M. to 1:00 P.M, at the Li Ka Shing Center.

Below is Keith’s blurb for the event.

The horrifying mass murders at the Washington Navy Yard and Sandy Hook Elementary School were both committed by individuals with long-standing mental-health problems. The events galvanized a national discussion about how to improve the accessibility and quality of our mental-health system.

At the same time, these tragedies can paint in the mind of the public a false image of the mentally ill as universally violent and dangerous rather than human beings in need of assistance and compassionate care. That may account for why a shamefully large number of mentally ill people are behind bars. L.A. County Sheriff Lee Baca has found himself heading what he calls “the nation’s largest mental hospital:” The L.A. County Jail.

While protecting public safety is a critical concern, it’s important to maintain perspective when analyzing the role of mental illness in violent crime. Harold Pollack, PhD, of the University of Chicago puts it this way:

Millions of Americans suffer from some form of severe mental illness, or SMI. It’s important to remember that the vast majority of these men and women have never committed a violent crime and never will commit one. Indeed, the mentally ill are often victims of violent crime, a social problem that has not received sufficient attention.

To dig into these important issues in a productive way, the medical school’s next Health Policy Forum will be devoted to the topic “Serious Mental Illness: How can we balance public health and public safety?” Harold Pollack and Lee Baca will come to Stanford for the forum and will be joined by Laura Roberts, MD, chair of the Department of Psychiatry and Behavioral Sciences. The policy forum is open to the public and will be held this Thursday from 11:30 A.M. to 1:00 P.M, at the Li Ka Shing Center. If you’re a local reader, we hope you can attend and join in the conversation.

The mugshot website extortion racket

Why is the Reporters’ Committee for Freedom of the Press defending blackmailers?

If your physician has diagnosed you with low blood pressure, I recommend reading this New York Times piece about mugshot websites, which post the photos of arrestees and then charge people to have their photos removed. That includes a woman who was charged with aggravated assault by the domestic partner who attacked her with a knife. The charges were dismissed, but the mugshot endures as a source of extortion revenue for the website operators. This sort of behavior reminds you of the reason for the belief in Hell.

I’m glad to see that Google and the some credit-card companies – but not, disgracefully, Visa – were moved by inquiries from the Times to distance themselves from this racket. But Mark Caramanica, the flack for the Reporters Committee for Freedom of the Press demonstrates why flackery is bad for the soul by denouncing any attempt to rein in this abuse:

It’s an effort to deny history. I think it’s better if journalists and the public, not the government, are the arbiters of what the public gets to see.

Forget the fact that the people running these websites aren’t “journalists,” and that the public currently has no power at all over what’s going on. Someone told Mr. Caramanica that his job was to oppose any restriction on the publication of information, and by God that’s what he’s going to do – as long as his paycheck continues to clear – no matter who gets hurt in the process. Feh.

Some questions for our lawyer-readers:

1. My understanding of the law is that extorting money by threatening to reveal unfavorable information about someone constitutes the crime of blackmail, even if the information is true. Does the fact that the unfavorable information is public record change matters? Or that the process is revealing the information first and then demanding money to stop revealing it?

2. If not, can’t some local prosecutor simply charge the website operators with blackmail, giving us an opportunity to see their mugshots on line? It seems to me there should be venue where the victim lives, independent of the location of the website operator. [Note to federal prosecutors: extortion and blackmail are RICO predicate offenses.]

3. Could Congress pass something parallel to the Fair Credit Reporting Act to require, at least, that information about exoneration be published along with the mugshot? Was FCRA the subject of a Constitutional challenge, and, if so, on what basis did it survive?

4. Going forward, why should state and local government treat arrest records and mugshots as public records? By statute, couldn’t they claim copyright, and use their own powers (under, e.g., the DMCA) to regulate the use of what would then be their images and records, or allow private-attorney-general actions to assert those rights on their behalf in defense of those not convicted?

There’s a broader issue here. The Fifth Amendment forbids the deprivation of life, liberty, or property without due process of law. That innocent people should sometimes be arrested is inevitable unless we can equip police with powers of omniscience. But the existence of an arrest record, even without a conviction, has many bad consequences. By maintaining arrest databases and making them available to others, the state in effect continues to punish someone for a crime of which that person was not convicted by due process of law. Why shouldn’t that be ruled unconstitutional?

Holder’s Sentencing Reforms Could Increase Racial Disparities in Incarceration

Instructing federal prosecutors to use long sentences for drug dealing within organizations may increase the over-representation of people of color in prison

Attorney General Holder’s new policy on the application of mandatory minimum sentences in drug cases reserves tough sentences for offenders who work within larger organizations rather than being independent operators. Under this policy, a banker who will launder drug money for any outside drug organization may get more leniency than would a courier or lookout who is a member of single criminal organization. In a balanced appraisal of Holder’s proposal, Jonathan Caulkins points out a potential adverse impact of prioritizing offenders on this criterion:

Organizations of all ethnicities import drugs, but given the geography of production and transshipment, smuggling operations are disproportionately Hispanic. Likewise, members of all racial and ethnic groups participate in retail selling, but — with the exception of outlaw motorcycle groups — the gang members are disproportionately minorities.

The result of assuming that those criminals who work within a larger organization deserve more severe punishment may therefore be that the federal prison population over-represents Hispanics and African-Americans to an even greater extent than it does today.

An alternative approach to sentencing is to worry less about whether drug offenders are part of an organization and instead focus the toughest punishment on those individuals whose removal would most severely disrupt the overall illegal drug trade. This would be a significant departure from the longstanding law enforcement practice of sweeping up huge numbers of low-level drug offenders, most of whom are people of color who work within a gang or other large criminal organization. To quote from an op-ed Jon and I co-authored a few years back:

The US has increased incarceration for drug-law violations literally tenfold since 1980 without achieving more than temporary increases in prices. There would be little lost by halving the average sentence length for easy-to-replace functionaries within the drug distribution system (lookouts, typical retail sellers, hired hands, etc). It would also spare the public the enormous human and social costs of mass incarceration.

A New Technology to Reduce Alcohol-Involved Criminal Offending

A new technology to monitor alcohol-involved offenders is a step forward, but still imperfect

States have adopted different approaches to reducing recidivism by intoxicated drivers. Some employ ignition interlocks that prevent an offender’s car from starting if the person in the driver’s seat fails an inbuilt breathalyzer test. Others have adopted 24/7 Sobriety, which requires offenders to appear in person twice a day and be breathalyzed.

Mark Kleiman and I have highlighted the evidence that 24/7 Sobriety both makes the roads safer as well as reduces other types of alcohol-related crime. Ignition interlocks have much weaker evidence of success. This could be in part because all one has to do to evade an interlock is drive someone else’s car, whereas an in-person test is pretty much impossible to fake given that the staff who administer the in person breath tests know the offenders personally. Ignition interlocks are also more constrained in their scope: 24/7 Sobriety can be employed for any alcohol-related crime whereas interlocks only make sense when the crime is driving under the influence.

Enter a new technology that brings to interlock some of the benefits of 24/7 Sobriety:

The ignition interlock system is equipped with a camera to detect if someone other than the offender is testing and a GPS to pinpoint the offender’s location on a map for each test. The offender must test twice a day, whether or not he or she drives the vehicle that day.

The pilot test results from 119 offenders are impressive: 99.5% success over more than 100,000 breath tests. However — and it’s a big however — preventing recidivism in this population depends on a knowable, swift, certain and modest response to breaches of alcohol-abstinence orders. In traditional 24/7 sobriety, this is easily done because the offender is right in front of the police and can be arrested and jailed for one night immediately. But what, practically, can the police do if someone with the interlock “blows hot” in an automobile that is parked 100 miles away?

One might say that the 99.5% success rate in the pilot study proves this is a minor concern. But the pilot study rode on the credibility of the much larger, longer running 24/7 Sobriety program in South Dakota, which everyone knows responds immediately to breaches. If a different state started with this new technology, they would need an upfront commitment of police resources to immediately arrest faraway offenders who test positive for alcohol. If that were not done, the program would get a reputation for inconsistency and lassitude among offenders, which has been the kiss of death for effective community supervision in much of the country.

Judging Defendants Who Defy Stereotypes

Evidence matters more in criminal cases when the defendant fits the juror’s stereotype of the typical offender

New research by Blake McKimmie and colleagues (abstract here, full article paywalled) suggests that evidence matters more in criminal cases when the person accused of the crime fits the stereotype of the typical offender.

Mock jurors were asked to determine the guilt or innocence of a defendant accused of robbing a gas station at gunpoint. Half of the mock jurors read a description of the case that relied on weak evidence of the defendant’s guilt (e.g. vague eyewitness accounts) while the other half read a description of the case that included strong evidence (e.g., detailed eyewitness accounts, DNA evidence).

As one would expect, the jurors were much more likely to vote to convict when the evidence of guilt was strong than when it was weak. But this effect only held when the defendant was male and therefore fit the stereotypical image of an armed robber. When the defendant was female, the strength of the evidence was unrelated to jurors’ judgments of guilt.

The authors speculate that when a defendant does not fit a stereotype, jurors attend to the mismatch instead of the specific facts of the case. In the study example, even though women as a whole were not on trial, the jurors tended to focus on the question “Would any woman really be capable of robbing a gas station at gun point?”. This apparently lead them to focus mainly on the defendant’s characteristics relative to the variable that didn’t fit their stereotype (e.g., “Are the signs that she is more aggressive than the average woman?”). This allocation of attention and cognitive effort had the effect of distracting jurors from something which is supposed to be influential in assessments of guilt: The strength of the evidence in the particular case being tried.

It’s an ingenious demonstration of a principle that the psychologists Amos Tversky and Daniel Kahneman explicated so well: When asked a question, our minds will often a substitute a different question before giving the answer, without us being aware of it.

Political Parties Suffer When They Don’t Listen, and So Does the Country

When voters are suffering, they will reject politicians who tell them their pain isn’t real and follow anyone who seems to listen

Ed Kilgore argues that my account of why many liberal politicians supported mandatory minimum sentences and other “tough on crime” policies left out one important motivation:

I remember graphically (because I worked for him at the time) when Zell Miller, who (lest we forget) had an early reputation as a reasonably progressive “populist”, came out for a “Two Strikes and You’re Out” law during the run-up to his difficult 1994 re-election campaign as Georgia governor. True, the provision only applied to offenders convicted of violent crimes, but the gambit was typical of the tendency of many Democrats to adopt mandatory minimum schemes to avoid being outflanked on the right on the crime issue.

Ed is a seasoned political observer and his observation rings true. I would like to take it one step further: WHY was it frightening for liberal politicians to be viewed as soft on crime? The correct answer is not “because conservatives had fooled the public into worrying about crime” but that crime had been increasing for decades and the public were desperate for politicians to respond.

As Mark Kleiman has noted, the American left lost on the crime issue starting in the 1960s and 1970s because it stopped listening to the public. The extraordinary surge of crime that began in the 1960s caused enormous suffering. And when Americans are suffering, they get very angry when politicians tell them their suffering is no big deal (“Many neighborhoods are as safe as ever!”), or is really due to something else (“We don’t have a crime problem, we have a poverty problem!”), or that the public should apologize for being upset (“Complaining about crime is just coded racism”). Americans who feel unheard often express their anger by voting for some politician — any politician — who seems to be listening. And when it came to crime, for many years most of those politicians were conservative.

Liberals were in shock on crime policy for a long time afterwards. They had been talking amongst themselves when they should have been listening to people outside the bubble. California Republicans made the same mistake when they decided to go anti-immigrant in the 1980s. The Tea Party is committing the same blunder right now as they plan out where they will store all the roses the public will supposedly buy them if the federal government is shut down on October 1. Failure to listen isn’t a left or right thing. Rather, it’s a thoroughly human weakness about which political parties should be constantly vigilant.

Perhaps the dynamic of political parties not listening until the suffering public rebels is an unavoidable part of politics in a democratic republic. It’s healthy insofar as it puts power in the hands of the citizenry, but it’s malign in that it can led to the adoption of some destructive public policies. Given a choice between submitting meekly to a political party that tells them to STFU and a bad policy proposed by someone who seems to be listening, suffering voters will go for the bad policy most of the time. Perhaps the lesson for the political class is that if you want good public policy, respond to unhappy voters by taking the cotton out of your ears and putting it in your mouth. If you don’t, they will find someone else who will.

Note to Ray Kelly

If you can’t enforce the law lawfully, why not let someone else try?

Dear Commissioner:

If you really and truly believe that you can’t keep New York City safe with constitutional means of policing, why not step aside and let someone else try it? I don’t think Charlie Beck, who has kept violence here in Los Angeles moving steadily down with a much smaller force (per capita) than yours, and done so without making a fetish of stop-and-frisk, has any interest in leaving LA – and of course all of us here hope he won’t – but Ed Flynn, who has a long record of successful and lawful crime-fighting, might be tired enough of dealing with Scott Walker to consider leaving Milwaukee.

Yours truly,

Mark Kleiman

P.s. Of course, it’s entirely possible that you were just talking trash. If so, you could just get back to managing the Department. But maybe, after 43 years on the force, it’s time for a well-earned retirement. I think the phrase is “been on the job too long.”

Kevin Drum on lead and juvenile crime

Juvenile arrest rates for blacks falling faster than for whites.

Kevin Drum provides still more data on the lead/crime connection, specifically with respect to African-American juveniles. Arrest rates for black kids have been falling faster than arrest rates for white kids, in part because blacks had more lead exposure and therefore benefited more as exposures fell.

It’s frustrating how much more willing “conservatives” are to use crime as a stick with which to beat black people than to do something about it. (See also: fetal alcohol.)

But maybe if Kevin keeps pounding this drum for another decade or so something will start to happen.

Three Lessons of South Dakota’s Correctional Reforms

South Dakota’s correctional reforms teach important lessons

South Dakota has passed an extensive package of legislation that will forestall the planned building of new prisons and invest in community-based supervision and health services. Sentences for violent offenders will stay tough and even in some cases get tougher. But non-violent offenders who have drug, alcohol and mental health problems will be presumed eligible for probation. Similar efforts are ongoing in many states, but South Dakota illustrates three aspects of the state of correctional reform in the U.S..

1. Conservatives are serious about reducing the number of people in prison. It has been noted for some time that a number of conservative thinkers (e.g., Pat Nolan, Bill Bennett) have expressed an interest in correctional reform. But that doesn’t ensure that conservatives holding elected office feel the same way. The reforms in South Dakota, an extremely conservative state in which Republicans dominate both houses of the legislature and also hold the governorship, demonstrate that conservative interest in reform is real and will be reflected in new policies (One could add as further examples the reforms in South Carolina and Texas).

2. Interest in reducing the growth of prisons will not go away when states get their budgets back in balance. This is a commonly expressed fear, but South Dakota undertook its reforms with its annual budget in surplus and a sizable rainy day fund in the bank.

3. Even though prisons are primarily a state issue, federal government action matters for reform. South Dakota pioneered the remarkable 24/7 Sobriety program, an effective community-based response to repeat drunk drivers, many of whom would otherwise ultimately be imprisoned. It was a local invention, but it was made possible by a federal government grant. Likewise, the state’s planned expansion of other alternatives to prison will be supported through federal grant programs that have drawn bipartisan Congressional support starting in George W. Bush’s presidency and continuing into Obama’s. Finally, no one in the White House is using the bully pulpit to whip voters into a frenzy about crime and drugs, which gives state lawmakers more room to maneuver without being seen as soft on crime.

All of which is to say that correctional reform has, thank goodness, a bright future in this country.

The next crime reduction breakthrough

Many of our great universities are having some awkwardness about how they deal with people who sexually mistreat their students.  The government is making them report on cases and how they are handling them, and Yale’s offers an innovation that has vast promise for all criminal justice, even though its merit completely escapes some bloggers.    The innovation is to rename rape as  non-consensual sex.  Like most innovators, Yale didn’t push their invention as far as they should have, but we can fix that: what they actually meant was partially consensual sex: surely they didn’t mean to completely ignore the enthusiastic consent of the rapist that is universal in these cases! In the student-on-student cases, it’s not just anyone consenting, but a Yale Man, not to mention a future stream of alumni bucks – possibly even  a letter athlete. In gang rapes, it seems only right to say “minority nonconsensual sex“.

The language change is much more interesting than it might appear.  For one thing, it sounds much less like something that’s done to you by somebody, and more like something that just happened.  Like when you trip on a loose rug when you didn’t mean to.  So all that blaming and fault-finding that makes the dean have Seriously Awkward Meetings with the spoiled son of a rich alum gets the heat turned down from the start. For another, it elides what we know about rape being a matter of power and not, mainly, sex. And finally, it wonderfully raises the subconscious suggestion that maybe not consenting was the offense!

I foresee a whole penal code worth of creative renaming in this line.  For a start, it will be super useful as the military looks under its sexual abuse rock; in lots of those cases, the consenting rapist outranks the victim, a clear case of predominant consent. When someone points a gun at you and takes your money and your cell phone, that’s not robbery; it’s partially consensual sharing!  When Yale students cheat on their exams, they’re using partially approved study methods.  If that armed sharer just shoots you to move things along, he’s aggravated the offense with partially consensual lifespan determination.  The possibilities in international relations make my head swim; armed occupation, for example, is partially consensual governance, which is obviously not that far from enacting legislation in Congress with a less-than-unanimous vote.

Rape is a felony, and felonies tend to involve the police, prison sentences, and a bunch of other really messy stuff. If we call this something that sounds a lot more like kids having fun…well, you get the idea. If you call a dog’s tail a leg, the dog has five legs, right?

I am ashamed that my alma mater does not get credit for this breakthrough, but maybe we can come up with something like it in the next round.