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Not Much of a Retraction

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Radley Balko writes

here’s a related statistic that’s pretty mind blowing in and of itself: According to the FBI, in 2011 there were 3991.1 arrests for every 100,000 people living in America. That means over the course of a single year, one in 25 Americans was arrested.

No, it doesn’t. This would only be true if we assumed that people do not get arrested more than once a year. The FBI Uniform Crime Reports (UCR) specifically caution against interpreting arrest data in the way that Balko does. Indeed, they make this warning so prominently within the UCR documents that it’s hard to miss.

Apparently, Balko was caught out by readers pretty quickly, because he updated his story later the same afternoon by adding this note at the very bottom:

CLARIFICATION: A few folks have noted that the 1 in 25 figure could be misleading, given that many people are likely to have been arrested more than once. Fair enough. It’s an average. The most accurate way to phrase it would be that in 2011, there were approximately four arrests for every 100 residents.

Yes, things that are not true “could be misleading”. But after acknowledging that his “1 in 25 Americans was arrested last year” claim was inaccurate, he left it as the screaming headline of his story.

Three Lessons of South Dakota’s Correctional Reforms

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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

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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.

Capital Punishment is Not a National Problem

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Janell Ross rounds up evidence that the use of the death penalty may be in retreat in the U.S.. Being strongly against capital punishment, I am pleased at developments. But death penalty opponents will not get to abolition if we strategize under the framing that it is something the “United States” does (as if often said, in contrast to all other Western developed nations).

In fact, the most important thing to know about the death penalty is that it is something only a small number of states do. If one state — Texas — abolished the death penalty its prevalence would drop by over a third (Texas has executed 503 of the 1342 people who have been put to death since the 1976 restoration of capital punishment). More broadly, as Ross notes, southern states today execute four times as many people as the rest of the states do combined.

What Americans as a whole think about the death penalty therefore doesn’t matter much. What matters is what people in Texas and Florida and Virginia think about the death penalty. Those are the hearts and minds that must be changed for this practice to end in this country.

How Legalization Can Expand a Black Market

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Human trafficking is one of the most revolting crimes on the planet, and it is therefore understandable that some governments have taken radical action to attempt to eliminate it, including legalizing prostitution. The argument, which seems sound on its face, is that expanding the supply of legal prostitution will draw demand away from the illegal market that relies on human trafficking. It is thus both surprising and important that new research from the London School of Economics shows that legalizing prostitution increases, rather than decreases, human trafficking.

This finding is stunning until one recognizes that demand for prostitution, gambling, drugs and the like is highly elastic. When the demand-suppressing effect of illegality is removed, demand can increase, sometimes dramatically. All of this new demand does not necessarily go to the legal market. Some new legal market entrants engage in the parallel black market some of the time (e.g., play legal slots at the casino by day and participate in illegal mob-run poker games at night). If the size of the newly legalized market is rapidly growing, these “fractional customers” can make the black market larger than it was in the pre-legalization period when all market participants were 100% reliant on the illicit market to meet their demand.

Other people may develop demands in a newly legalized market that over time lead them to move exclusively to the illegal market. For example, a man who begins going to prostitutes when sex work is legalized may realize over time that he wants to have sexual encounters in which he is physically abusive to prostitutes. He would then migrate to the black market where he can more easily indulge his violent propensities. Similarly, people who becomes addicted to a newly legalized drug may come to want to consume it so often and in such quantities that only the black market will meet their demands.

It has long been speculated that the phenomenon of legalization of a market growing a black market has already happened with gambling. There has clearly been an explosion of legal casinos, poker competitions, state-run lotteries etc., but no definitive research indicates whether the prevalence of illegal gambling has increased, reduced or stayed constant as a result. The new LSE research is I believe the first formal test of the possibility that legalization can grow a black market, and for prostitution it appears that it can (full paper here).

There is clearly more empirical work to be done in this area. But in the meantime, wise heads in the policy world will not take it as a given that legalizing something will necessarily shrink the black market.

h/t: Eric Voeten, who blogs at our sister site, the Ten Miles Square section of Washington Monthly.

Racial Agreement on Police Discrimination

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John Buntin has an engaging piece in New York Times on how to prevent gang members from killing each other. David Kennedy, subject of a collective RBC wonk crush, describes how the long-term, prevalent use of stop-and-frisk tactics in minority neighborhoods has eroded community trust of law enforcement:

In high-crime neighborhoods across the country, community cooperation with police investigations has virtually stopped. It’s not simply that residents are afraid of retaliation, Kennedy says. “There is a strong and growing norm in many communities, especially poor black communities, that good people don’t talk to and don’t work with the police,” he says. So even while the sheer number of murders in most cities is dropping, the homicide clearance rate — the proportion of cases solved — is doing the same.

But the otherwise excellent article includes one false note: Continue Reading…

The Zimmerman pattern

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There’s less to the Zimmerman verdict than meets the eye. “Beyond reasonable doubt” is a tough standard to meet when the question is whether someone could reasonably have believed himself in mortal peril. Would the jury have decided otherwise if an armed black man accosted an unarmed white man in a white neighborhood? Possibly. But that doesn’t prove the verdict actually rendered was wrong. It probably wasn’t.

On the other hand, the demonization of the unarmed guy with the bullet hole in him and the valorization of the guy with the gun by the wingnuts and the racists are pretty hard to take. One fact I hadn’t been aware of until today - admittedly, I wasn’t paying very much attention to the case - is that Zimmerman had previously been charged with felony assault on a police officer (case dismissed when he agreed to enter alcohol treatment) and accused by a girlfriend of domestic violence (no charges filed, cross restraining orders granted).

None of that was admissible at trial. But a prosecutor thinking about whether to take a hard-to-win case might reasonably view Zimmerman’s self-defense story a shade more skeptically knowing that he’d used it before in the domestic-violence case and that he’d been aggressive enough to push a uniformed cop on duty. As Lady Bracknell might have remarked, to be accused of one violent felony may be regarded as a misfortune, but to be accused of two looks like … something else.

Perhaps, having killed and gotten away with it, Zimmerman’s blood-lust is now satisfied. Or perhaps, having been tried for murder, he will have learned his lesson. Let’s hope so.

 

Policing the Illicit Cannabis Market After Legalization

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Law enforcement officials in Colorado and Washington will soon be grappling with the question of how to police illicit sales and production of cannabis after the legal cannabis market is in place. The logical approach would be to prioritize illicit market enforcement immediately after legalization takes effect. The enforcement and resultant busts would be coupled with press releases full of head-shaking quotes along the lines of “I can’t understand why people keep engaging in crime now that recreational marijuana is legally available”. Such tactics would help undermine the black market by driving people into the legal cannabis market.

However, once there is a legal market in a drug, enforcement against illegal markets becomes much more challenging. When a drug is illegal, mere possession is prima facie evidence of crime. But when the substance can be legally possessed, law enforcement must catch someone in the act of illegally selling, buying or producing the substance to make an arrest, which is much more difficult.

Further, smart criminals will seek legal cover, making law enforcement’s task even more challenging. If you operate a regional marijuana distribution ring for example, you’d be well advised to buy a license to operate legally in Colorado or Washington. Your subsequent possession of marijuana and associated equipment will thus appear legal sans some careful investigative spadework, which police may not have the resources to undertake.

Barring some unusual foresight by and targeted resources for law enforcement in Washington and Colorado, risk of arrest will probably drop rather than rise in the illegal cannabis market post-legalization. Reduced risk of arrest will make the black market less unappealing to customers than it was in prior years. This drop in legal risk will help the black market survive, particularly as its prices will be likely be dropping at the same time.

Angela Hawken, Caesare Beccaria, and swift and certain sanctions

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RBC readers will not be surprised to hear that HOPE probation and similar programs have great potential to reduce drug abuse, crime, and incarceration. But it may come as news to readers of Slate, and Sam Kornell gives a very good brief account of how and why swift and certain sanctioning works, and its potential to transform the criminal justice system. (Had it been my story, I would have put more emphasis on the managerial challenges that confront anyone trying to make such a program happen.)

Naturally, the story mentions Steven Alm, the judge who made it happen. Surprisingly and appropriately, the focus is on Angela Hawken, who did the research that showed HOPE worked and has vigorously spread the word since, against strong opposition from the friends of business-as-usual in criminal justice and drug treatment. Though the story doesn’t mention it, it was Hawken, more than anyone else, who made the Washington State version of swift-and-certain (called WISP) get started and succeed.

As a bonus, Kornell also credits Caesare Becccaria, who wrote most of it down in 1745. Ideas don’t always matter, and people who think for a living don’t always produce good ones. Correct idea that matter deserve more celebration than they get, and the Beccaria/Hawken has earned its moment in the spotlight.