Tag Archives: criminal justice

Among The Many Things We Need To Rethink..

Political conventions and government structures that have been in place for many years–some since America’s founding–are proving increasingly dysfunctional. I’ve addressed a number of them in this blog: the Electoral College, partisan redistricting, the filibuster and many others are widely recognized to be counterproductive to 21st Century expectations about democratic fairness and effective governance.

We can add a number of other “resistant to change” elements to the list; as one of my sons recently reminded me, thanks to population shifts, the U.S. Senate is wildly unrepresentative. For example, of the  candidates who won election to the 114th Senate, the Democrats received 20 million more votes than the Republicans. For another, by 2040,  predictions are that nine states will be home to half of the country’s population: California, Florida, Georgia, Illinois, New York, North Carolina, Ohio, Pennsylvania and Texas. The populations of those states will be represented by eighteen Senators. The remaining fifty percent will be represented by eighty-two.

Short of revolution, it is unlikely that we are going to be able to change things like the Senate’s disproportionate representation or the Electoral College–at least, not any time soon. But there are other public policies and longtime practices that are amenable to evidence-based change. One example–recently the subject of analysis by the Brennan Center— is the use of cash bail, fees and fines in the criminal justice system

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction. They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

The study examined ten counties in the states of Texas, Florida, and New Mexico, and also looked at statewide data for those three states. The counties were chosen to ensure a variety of geographic, economic, political, and ethnic profiles, as well as in the way they collected and enforced their use of fees and fines.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue. The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

States spend a lot of money chasing after fees that will never be paid, mostly because the people against whom they are levied don’t have the money to pay them. The researchers found that one New Mexico county spent at least $1.17 to collect every dollar of revenue it actually realized, losing money through the process.

Funds currently being expended to collect the uncollectible would be better used for efforts that can be shown to actually improve public safety.

While political scientists are trying to figure out how to rescue American democracy from permanent minority rule, we might start addressing issues like this one, which should be more manageable…

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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.

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Hate and Crime and Punishment

Can the law protect members of disfavored groups against hate crimes without running afoul of the First Amendment?

Indiana is one of a very few states that does not currently have a hate crimes statute, and a number of very well-meaning people point to that as evidence that we are condoning acts motivated by animus based upon race, religion, ethnicity or sexual orientation. Although animus may well explain some part of the opposition to such measures, there are legitimate reasons to go slowly when we consider criminalizing “hate.”

The American Constitution differentiates between actions which government is entitled to prohibit and/or punish, and ideas–no matter how harmful or despicable–that government is prohibited from sanctioning. (This distinction escapes too many of us; it is the reason that those “beleaguered” bakers and florists are free to disapprove of same-sex marriage–and to voice that disapproval–but not free to refuse service to same-sex customers.)

That brings us to another misunderstanding–a conflation of criminal intent with motive. 

In order for government to prove that a crime has been committed, a prosecutor must show that the accused actually intended to commit a crime. An affirmative answer to “Did the accused know it was rat poison when he put it in the stew he fed to the deceased?” establishes criminal intent. If the defendant can prove it was an accident–that he thought that tin contained paprika–he can be punished for negligence, but not for a crime.

His motive for putting rat poison in the stew, however, is irrelevant to the punishment.

Many proponents of so-called “hate crimes” legislation want to add punishment for the motive that led to the criminal act.  (For example, if I beat you senseless after we fought over money, I might face a sentence of 2-4 years, but if I beat you senseless because I hate  Episcopalians, the sentence range would increase to 3-5. We’d add a year based upon the motive.)

Opponents note that this approach effectively criminalizes the thought–the idea– that prompted the attack.

Proponents argue that these statutes send a message–that they are an important signal of our collective disapproval of bias.

Fortunately, there is a middle way that should satisfy the concerns of both camps.

When a defendant has been found guilty of a crime–murder, battery, vandalism, whatever–the typical statute provides a range of fines or sentences. The Judge decides whether to impose a sentence at the top or the bottom of that range, and s/he makes that determination after taking into account all mitigating and aggravating circumstances.

For example, if a first-time offender is facing 2-4 years, and has exhibited remorse, the Judge may opt for two years; if the defendant is a repeat offender with an “attitude,” the Judge may opt for four years.

There is no reason why the existence of bias cannot be an aggravating circumstance. (I would be surprised if it isn’t already part of the sentencing calculus in most courts.) Such an approach–explicitly used in several jurisdictions–avoids setting a fixed penalty for “bad thoughts” without requiring the criminal justice system to ignore the kinds of hateful influences that we collectively deem socially detrimental and (truly) unAmerican.

Hate crimes legislation is just another example of the cautionary adage: how you do something is every bit as important as what you do.

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Crime and the City: Some Unsolicited Advice to the Next Mayor

Several years ago, when Bart Peterson and Sue Ann Gilroy were running for Mayor, the IBJ asked Morton Marcus and yours truly to write a series of dueling recommendations to the eventual winner, titled “Letters to the Next Mayor.” My recollection is that they discontinued the feature fairly early on, but in that spirit, I’d like to offer some unsolicited advice to the winner of next year’s mayoral contest.

Give public safety back to the Sheriff.

When Greg Ballard was elected, one of the first things he did was take the newly combined IMPD away from the Sheriff, and assume responsibility for public safety. That was my first clue that he had no idea what he was doing. This wrongheaded move was prompted more by machismo and ego and the fact that the Sheriff was a Democrat than by any requirement of good governance.

Back when I was Corporation Counsel, I urged Bill Hudnut to consolidate IPD with the Sheriff’s department and give the new entity to the Sheriff. There was a reason for that advice. For one thing, there’s efficiency: a mayor has multiple responsibilities–public works, parks, economic and community development and numerous others–that compete for his time and attention, while the Sheriff is a constitutional officer whose sole responsibility and focus is criminal justice.

It isn’t simply a matter of efficiency, however. Good government and good politics both weigh in favor of letting the Sheriff take primary responsibility for IMPD.

Good government requires clear lines of accountability. When voters are going to the polls to vote for a mayor, they must “grade” an incumbent on what Ed Koch used to call the “How’m I doing?” scale. The multiple responsibilities of the office require voters to balance the incumbent’s record on crime against multiple other aspects of performance; as a result, the message sent by voters will necessarily be mixed and subject to different interpretations. Voting for a Sheriff whose entire portfolio is policing allows for much more direct accountability.

Politically, taking charge of public safety was foolish–what we might call an “unforced error.” When Ballard was elected, he told everyone who would listen that crime was going to be his “Number One” priority, and invited voters to judge him on that basis. They will, and it won’t be pretty.

Sometimes, the political game of “Mr. Macho” works. More often, it comes back to bite you.

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Still the Poster Child for Stupid Policy

The most recent newsletter of the ACLU has a report on the costs of incarceration, including the staggering amounts paid to enforce marijuana prohibition. In 2010, the states spent 3.6 billion dollars and made one pot arrest every 37 seconds. And how did this aggressive enforcement work out? Marijuana use increased.

Think about that next time state governments wail about not having enough money to support public education, pave highways, or provide other necessary services.

As I have noted previously, the nation could save an amount equal to the cuts made by sequestration just by substituting sensible regulations for our disastrous drug war.

Current laws are wildly illogical for all sorts of reasons.

The biggest problem with the War on Drugs is that it is being fought on the wrong battlefield. Drug abuse is a public health issue. Behaviors connected to the use of drugs–driving while impaired, theft to support a habit, etc.–should be addressed by the criminal law, but the mere use of a substance deemed harmful is a health issue, and should be addressed as a health issue.  (Speaking of health, marijuana is actually less harmful to users than tobacco, yet we have wildly different approaches to pot and tobacco use–undoubtedly the result of a much more effective tobacco lobby. According to police officers I know, people who use pot are significantly less likely to become violent than people who abuse alcohol, yet we outlaw pot, but regulate and tax alcohol and tobacco.)

Current laws are financially ruinous. The US spends roughly 60 billion dollars annually on drug prohibition, and we get virtually no bang for those bucks because the “war” is ineffective. We also forgo collection of billions of dollars in potential tax revenues that we would collect if we simply taxed pot like we treat alcohol and tobacco. We waste criminal justice resources that would be better used elsewhere, to treat drug abuse or to deter nonconsensual crimes that actually harm others.

Drug prohibition has focused disproportionately on African-American and Latino neighborhoods, exacerbating racial tensions. Black people are almost four times more likely to be arrested for possession of marijuana than their white neighbors, despite statistics confirming comparable levels of use–and the ACLU reports that the disparity in some counties grows to as much as 30 times!

We’ve lost this war. Not that the War on Drugs has ever been effective; the percentage of Americans who use hard drugs is pretty much the same as it has always been. Pot use has ebbed and flowed over time, providing the only real changes in the numbers. Thirty plus years of research has consistently demonstrated the utter failure of American drug policy, and the error of the premises upon which it has been constructed. (Pot smokers become hard drug users in about the same percentages as milk drinkers do, and we don’t outlaw milk as a “gateway drug.”) The only thing the Drug War has done effectively is ruin the lives of (disproportionately black) teenagers who are imprisoned for non-violent drug crimes.

What is frustrating is the number of policymakers who respond to this mountain of evidence with a renewed enthusiasm for measures that have consistently failed.

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