Category Archives: Criminal Justice

What Portugal Can Teach Us About The Drug War

America’s policymakers evidently didn’t learn anything from the disaster that was alcohol prohibition. (Jeff Sessions clearly didn’t!)

In fact, for a country whose citizens constantly assert a belief in individual liberty, we rank right up there on the forced prudery scale. As any historian or political scientist can confirm, America’s legal landscape is littered with religious moralism masquerading as public safety.

When it came to drug use, and our incredibly expensive and demonstrably ineffective drug war, moralism joined hands with racism, first against Asians and Opium, and then against African-Americans, as Michelle Alexander copiously documented in The New Jim Crow. 

Years of criminal justice research have confirmed the futility–and injustice–of America’s approach to drug prohibition, an approach that creates drug “schedules” unsupported by evidence of harm, fails to distinguish between use and abuse, treats drug use as a criminal justice issue rather than a public health problem, and requires massive wasteful public expenditures.

Those are mistakes Portugal no longer makes.

Portugal decriminalized the use of all drugs in 2001. Weed, cocaine, heroin, you name it — Portugal decided to treat possession and use of small quantities of these drugs as a public health issue, not a criminal one. The drugs were still illegal, of course. But now getting caught with them meant a small fine and maybe a referral to a treatment program — not jail time and a criminal record.

The reactions from so-called “experts” were predictable. And wrong.

Whenever we debate similar measures in the U.S. — marijuana decriminalization, for instance — many drug-policy makers predict dire consequences. “If you make any attractive commodity available at lower cost, you will have more users,” former Office of National Drug Control Policy deputy director Thomas McLellan once said of Portugal’s policies. Joseph Califano, founder of the Center for Addiction and Substance Abuse at Columbia University, once warned that decriminalization would “increase illegal drug availability and use among our children.”

But in Portugal, the numbers paint a different story. The prevalence of past-year and past-month drug use among young adults has fallen since 2001, according to statistics compiled by the Transform Drug Policy Foundation, which advocates on behalf of ending the war on drugs. Overall adult use is down slightly too. And new HIV cases among drug users are way down.

Now, numbers just released from the European Monitoring Centre for Drugs and Drug Addiction paint an even more vivid picture of life under decriminalization: drug overdose deaths in Portugal are the second-lowest in the European Union.

Portugal has now operated under decriminalization for fifteen years, a time period sufficient to allow us to draw some conclusions. At a minimum, we can conclude that the country hasn’t experienced the dire consequences that opponents of decriminalization predicted.  The Transform Drug Policy Institute, which has analyzed Portugal’s policy outcomes, says of  of Portugal’s drug laws,

The reality is that Portugal’s drug situation has improved significantly in several key areas. Most notably, HIV infections and drug-related deaths have decreased, while the dramatic rise in use feared by some has failed to materialise.

Of course, there are other aspects of Portuguese society that are important contributors to these salutary results. As an article from Vice points out,

Though often narrowly assessed in reference to its decriminalization law, Portugal’s experience over the last decade and a half speaks as much to its free public health system, extensive treatment programs, and the hard to quantify trickle down effects of the legislation. In a society where drugs are less stigmatized, problem users are more likely to seek out care.

So let’s see….a country that doesn’t stigmatize or criminalize personal drug use, and provides its population with an extensive “free public health system” seems to have solved–or at least significantly moderated–its drug problem.

And of course, Portugal–like every other industrialized country— spends far less per capita on medical care than the U.S. does.

We don’t learn from our own failures, and we refuse to learn from other countries’ successes. I think that’s what’s called American Exceptionalism.

A Very Good Call

According to a recent article in the Indianapolis Star, part of Mayor Hogsett’s plans for a new criminal justice center includes terminating the city’s contract with a private prison company.

The mayor’s criminal justice reform task force has recommended that the Marion County Sheriff’s Department take over all operations for the proposed jail at the site of the former Citizens Energy coke plant, 2950 Prospect St. That means the county would end a decades-long contract with CoreCivic, formerly called Corrections Corp. of America.

There is a lot to applaud in the Mayor’s plan–especially the extent to which it recognizes the degree to which the criminal justice system has operated as a very unfortunate substitute for a functional mental health system. But the termination of the city’s contract with CoreCivic is particularly welcome. As the Mayor noted, the move will actually save the city money, but those savings are simply “icing on the cake.”

Beyond savings, the Hogsett administration wants to move away from a private operation model that has drawn fire from criminal justice reform advocates.

“First and foremost, that’s the job of our elected sheriff — to be responsible for the care and security of inmates,” said Andy Mallon, corporation counsel for the city. “That promotes accountability with public officials and transparency, whereas when you have a privately run jail, all of that gets transferred by a contract to a private, profit-driven company. We don’t think at this point we should be providing profits for jailing (inmates).”

The bottom line is–or should be–that there are some functions that government should rarely or never contract out, and incarceration is one of them. Giving private, profit-seeking enterprises authority to exercise the coercive power of the state is an invitation to abuse, and research has consistently found such abuse in the private prison industry. When the focus is on the fiscal bottom line, rather than public safety or offender rehabilitation, it isn’t surprising that such institutions save money by skimping on inmate’s meals or medical care, or that they are more abusive, violent, and dangerous than their government-run counterparts.

More insidious, however, is the effect of profit-making prisons on public policy. The companies that operate these prisons donate large sums to political figures, and spend significantly on lobbyists, and they aren’t just trying to curry favor with agencies that may award contracts. They are trying to influence criminal justice policy, arguing for laws that impose harsher and longer punishments and against efforts to decriminalize behaviors like marijuana use.

Criminal justice policies should be based upon their considered effects on public safety–not upon the profitability of politically-connected companies.

Mayor Hogsett has made a very good call.

Behind the Statistics

Linda Greenhouse, an always insightful observer of law and courts, has written an excellent column for the New York Times about the Trump Administration’s reversal of Obama’s policy phasing out private prisons.

For Trump loyalist who keep pointing out that the stock market is doing well, she provides a “think about this” example of just what is fueling that optimism:

So the Trump administration is putting the welcome mat back out for private prisons, just as candidate Donald Trump said he would do, reversing the Obama administration’s policy of phasing them out for federal prisoners. It’s no wonder that shares in some of the nation’s biggest for-profit prison companies soared by double digits the day after the presidential election, making them among the biggest winners in the immediate postelection rally.

Greenhouse also provides us with a stark reminder of the “cost controls” that allow private prisons to make money. Her example comes from Indiana.

A decision on Feb. 21 by the federal appeals court in Chicago came just in time to remind us that privatization is a really bad idea. The United States Court of Appeals for the Seventh Circuit reversed a federal district judge’s dismissal and sent back for trial a case with the most appalling facts, brought by a dead prisoner’s mother against the company to which the Indiana Department of Corrections had outsourced its inmates’ medical care.

The opening paragraph of the opinion by Chief Judge Diane P. Wood tells the story: “Nicholas Glisson entered the custody of the Indiana Department of Corrections on September 3, 2010, upon being sentenced for dealing in a controlled substance (selling one prescription pill to a friend who turned out to be a confidential informant). Thirty-seven days later, he was dead from starvation, acute renal failure, and associated conditions.”

After reciting the facts of this particular, egregious example, Greenhouse notes that she has two reasons for her focus on the Indiana case.

The first is to show the recklessness of President Trump’s wave-of-the-hand decision to retain the private prisons that a Justice Department study last year concluded “do not maintain the same level of safety and security” as those operated by the Bureau of Prisons. Sally Q. Yates, the holdover deputy attorney general whom President Trump fired last month for refusing to defend his travel ban, relied on that conclusion in announcing that private prison contracts would not be renewed and that the 22,000 federal inmates housed in those prisons would be cut to 14,700 by May 2017 and eventually to zero.

Greenhouse’s second reason was to highlight the stark differences between the judge’s opinion upholding the right of the mother to sue and the original decision, by a different judge, dismissing the suit. As she pointed out, the choice of the people who render judgment in our system–the judges nominated by the President  and confirmed by the Senate–is important. Those choices matter.

When I read about this case, and the absolutely unnecessary death of a “felon” whose crime consisted of the sale of one prescription pill, it reminded me of something else that matters:  the harm done by policies rooted in nothing other than social disapproval –what the Founders called “the passions of the majority.” Greenhouse has provided us with one example–drug laws that sweep far too widely and impose penalties wildly disproportionate to the offenses. The Trump Administration is in the process of providing us with another–the indiscriminate deportation of people whose only “crime” is coming to our communities without documentation.

Everyone disapproves of drug abuse, but not everyone agrees on the difference between “use” and “abuse”–or even the difference between harmful and harmless substances.

Similarly, everyone disapproves of illegal entry into the country in the abstract, but when we fail to distinguish between people who were brought here as young children by their parents,  people who have been longtime assets to their communities or who have served in America’s armed forces, and the “bad hombres” of Trump’s rash rhetoric, we aren’t just being inhumane, we are supporting measures that are both costly and stupid.

It matters who our judges are. It really matters who the President is.

 

The Social Safety Net and the Ideologues

I know I tend to harp on the difference between thoughtful policymaking and ideology. Good policymaking depends significantly upon expertise and research, learning from experience (otherwise known as trial and error) and careful empirical observation; ideology dismisses poor results and unfortunate side-effects as irrelevancies or attributes them to insufficiently thorough implementation.

Congressional Republicans, led by Paul Ryan, and with the likely concurrence of the Senate GOP and Mitch McConnell, are determined to make drastic changes to American social policy. To the extent they are not prompted by corruption (that is, acting on behalf of and at the behest of their donor base), their desired changes to Social Security, Medicare and Obamacare are entirely ideological. They don’t want to improve these programs; they want to dismantle them.

It has long been an article of Rightwing faith that welfare programs—indeed, social insurance of any sort—creates unhealthy dependency. (Somehow, that belief does not extend to corporate welfare. But that is a post for another time.)

The evidence, not unsurprisingly, suggests otherwise.

There is substantial research suggesting that countries with more robust social safety networks experience fewer socially undesirable behaviors: less crime, less divorce, less child abuse…the list goes on. Rates of murder, robbery, burglary, rape, and other serious crimes are generally much higher in the U.S. than in industrialized nations offering universal health care and other social supports. Homicide rates in the U.S. have consistently ranged between three and twenty times those of other industrialized countries.

It is particularly notable that Canada’s murder rate is far below that of the U.S. (running around a fourth of our levels). For homicides committed by youth, the U.S. rate has been as much as ten times the Canadian levels. Yet Canadians watch American television, log onto American websites, read American publications, share our culture. There is also widespread gun ownership in Canada.

What most differentiates us is the fact that Canadians have guaranteed health care and less social insecurity.

The U.S. is more economically stratified than any other advanced country. Its levels of income inequality and relative poverty are triple those of other wealthy nations. Scholars tell us that developed countries having relatively low levels of income inequality have low crime rates; in countries where one segment of the population has great wealth while another segment is in extreme poverty, crime rates are high.

As a 2015 article in The Week noted, the differences in approach to social welfare are ideologically based.

Conservatives often want to tie safety net programs to having a job, so that people aren’t tempted by handouts to hold off working. There are work requirements for food stamps. More heavy requirements were added to traditional welfare in the late 1990s. And now Republicans are suggesting requirements for Medicaid as well. This makes little sense. The much more generous European systems have higher labor force participation, and the U.S. economy has done progressively worse over the last three decades at actually creating enough jobs for everyone to have.

Add it all up, and it’s not surprising that most other advanced Western countries have much lower poverty rates than America.

Recent research has tied declining rates of marriage to poverty, and has confirmed that “failing schools” are typically those trying to educate children from impoverished homes—that growing up in poverty creates identifiable physical and emotional impediments to learning.

There is an overwhelming amount of evidence that a strong social safety net reduces crime and other social dysfunctions that cost Americans significant tax dollars—and that the availability of such social supports does not discourage workforce participation.

Evidence, however, is no match for rigid ideology. Americans should expect a full-court effort to gut Social Security and Medicare by zealots impervious to evidence.

Following the Money, Prison Edition

Recent research from In the Public Interest reports that “graduates” of private prisons have higher rates of recidivism than ex-offenders leaving public institutions.

The brief shows that people incarcerated in prisons operated by for-profit companies, like Corrections Corporation of America (CCA) and GEO Group, have higher rates of recidivism than people incarcerated in publicly managed prisons. Evidence also suggests that prison telephone and video call companies make business decisions that increase the likelihood that prisoners subjected to their services will return to prison or jail.

The research attributes the higher recidivism rates to several factors: Private prisons are, on average, more violent than public prisons; the emphasis upon filling empty beds in their often far-flung facilities results in incarceration of offenders in locations that are often far away from their homes, with a resulting loss of contact with families and home communities; prison telephone companies charge high calling rates and many ban prisoner cell phones, which further reduces contacts between prisoners and their homes. (Adding to the problem, private prisons often ban in-person visitation and then charge prisoners and their families prohibitive rates to make video calls.)

The report notes that private prison companies have long histories of neglecting prisoners’ basic needs, focusing instead on their company’s revenues and profits. For example,

To reduce normal business risks around fluctuating prison populations, private prison companies add occupancy guarantee clauses to many contracts, which compel states and local governments to pay the companies for unused beds if the population drops below a certain threshold, typically around 90 percent of a facility’s capacity.

During the past few years, there has been growing concern about the operation and consequences of placing offenders in private prisons. As the New Yorker has reported,

Going into Election Day, few industries seemed in worse shape than America’s private prisons. Prison populations, which had been rising for decades, were falling. In 2014, Corrections Corporation of America, the biggest private-prison company in the U.S., lost its contract to run Idaho’s largest prison, after lawsuits relating to understaffing and violence that had earned the place the nickname Gladiator School. There were press exposés of shocking conditions in the industry and signs of a policy shift toward it….In August, the Justice Department said that private federal prisons were less safe and less secure than government-run ones. The same month, the department announced that it would phase out the use of private prisons at the federal level. Although most of the private-prison industry operates on the state level (immigrant-detention centers are its other big business), the news sent C.C.A.’s stock down by thirty-five per cent.

In the wake of Donald Trump’s victory, that all changed. C.C.A.’s stock jumped forty-seven per cent. (It wasn’t just private prisons, either; Trump’s privatization promises caused sharp increases in the stock prices of for-profit schools .) As the New Yorker pointed out, the outlook for private prisons is particularly rosy, because so many of Trump’s policies will–if implemented– benefit them.

The Justice Department’s plan to phase out private prisons will likely be scrapped, and a growing bipartisan movement for prison and sentencing reform is about to run up against a President who campaigned as a defender of “law and order.” Above all, Trump’s hard-line position on immigration seems certain to fill detention centers, one of the biggest money spinners for private-prison operators.

As the article concludes,

It’s become common to speak of “the prison-industrial complex,” and the analogy to the military-industrial complex is a good one: in both cases, government spending helps fund very profitable businesses, which, in turn, lobby legislators and regulators to keep the funds flowing. Just as we spend billions on weapons systems that we may not need, so, too, we jail more people than we need for longer than necessary, because it keeps someone’s balance sheet healthy. In recent years, an unlikely coalition of conservatives and liberals had made some progress in weakening this system, going after policies like mandatory sentences. Trump’s election will make it much harder to sustain that progress. Private prisons, he said earlier this year, “work a lot better,” and he’ll doubtless look to expand their reach. And he has a simple and grim answer to how many people we should put in prisons and detention centers: More.

Welcome to policymaking in the Trump era, where evidence and experience are irrelevant, expertise and research are scorned as “elitist” and private profit is king.