Category Archives: Criminal Justice

Complicated Problems, Bumper-Sticker Solutions

A recent column in the New York Times reminded me (as if such a reminder was needed!) of American lawmakers’ penchant for “solving” problems by passing “quick and dirty” laws that may placate a constituency, but do little to actually solve the problem at hand–and often do considerable collateral damage.

A particularly pernicious example is the one highlighted by the Times, 

a wave of laws around the country restricting where people convicted of sex offenses may live — in many cases, no closer than 2,500 feet from schools, playgrounds, parks or other areas where children gather. In some places, these “predator-free zones” put an entire town or county off limits, sometimes for life, even for those whose offenses had nothing to do with children.

Protecting children from sexual abuse is, of course, a paramount concern. But there is not a single piece of evidence that these laws actually do that. For one thing, the vast majority of child sexual abuse is committed not by strangers but by acquaintances or relatives. And residency laws drive tens of thousands of people to the fringes of society, forcing them to live in motels, out of cars or under bridges. The laws apply to many and sometimes all sex offenders, regardless of whether they were convicted for molesting a child or for public urination.

I vividly remember a friend’s anguish when his younger brother–who had just turned eighteen–was placed on Indiana’s sex offender registry for “molesting” his sixteen-year-old girlfriend, despite her protests that she had initiated their voluntary encounter.

I understand the desire to “do something” when a genuine molestation occurs. I understand the pressure on lawmakers to respond to a parent’s demand for action (particularly when that parent is politically active or connected). But at some point, everyone needs to take a deep breath and recognize the unintended–and pernicious– consequences of “solutions” created by people who fail to understand the complexity and dimensions of the problem.

This Is Why We Can’t Have Nice Things….

Like reasonable laws.

Recently, Indianapolis City-County Councilor Kip Tew sponsored an ordinance that would  require people to file a report if a gun they owned was lost or stolen.

Laws requiring gun owners to report loss or theft of a weapon help police in several ways:  they deter gun trafficking and discourage straw purchasing; they  facilitate the return of the guns, if found, to their lawful owners; and they help police disarm people who aren’t legally eligible to possess firearms.

As an officer friend pointed out recently, timely reporting of gun thefts and losses allows police to trace guns more effectively, and makes the successful prosecution of users of stolen guns more likely.

A very small step, granted, but a step in the right direction.

Currently, however, there aren’t enough votes to pass the measure. Not because council members are opposed to it, but because several of them worry that it might violate a relatively recent provision of the Indiana Code–a provision so ridiculous I couldn’t believe it was real.

Here are the relevant parts of Indiana Code 35-47-11.1 – 7.

Except as provided in section 4 of this chapter, a political subdivision may not regulate:
(1) firearms, ammunition, and firearm accessories;
(2) the ownership, possession, carrying, transportation, registration, transfer, and storage of firearms, ammunition, and firearm accessories; and
(3) commerce in and taxation of firearms, firearm ammunition, and firearm accessories.

Anyone “adversely affected” by such an action is authorized to sue for damages.

This is yet another example of the legislature telling local governments what they can and cannot do (my Home Rule complaint). And in this case, what our local folks can’t do is anything that even smells of gun regulation.

But the rest of this abomination is even worse:

A person is “adversely affected” for purposes of section 5 of this chapter if either of the following applies:
(2) The person is a membership organization that:
(A) includes two (2) or more individuals described in subdivision (1); and
(B) is dedicated in whole or in part to protecting the rights of persons who possess, own, or use firearms for competitive, sporting, defensive, or other lawful purposes.

Sec. 7. A prevailing plaintiff in an action under section 5 of this chapter is entitled to recover from the political subdivision the following:
(1) The greater of the following:
(A) Actual damages, including consequential damages.
(B) Liquidated damages of three (3) times the plaintiff’s attorney’s fees.
(2) Court costs (including fees). (3) Reasonable attorney’s fees.

Short version: if Indianapolis tries to protect its citizens by controlling guns or ammunition in any way whatever, the “membership organization” (i.e. the NRA) can sue the city and recover attorney’s fees and punitive (“liquidated”) damages from our tax dollars.

Think about that.

I can’t imagine what “damages” the NRA would suffer from the passage of an innocuous and helpful measure like reporting stolen guns. (For that matter, putting on my lawyer hat,  I don’t think that “theft” comes within the definition of “ownership, possession, carrying, transportation, registration, transfer, and storage,” but I do understand council members’ concern that it might.)

If you ever want an example of the way a well-heeled lobby overrides the will–and the welfare–of mere citizens, this one’s a doozy.

“Urban” Family Dysfunction and Red Christian America

In the wake of the protests in Ferguson and Baltimore, there has been a lot more finger-pointing than sound analysis, with progressives accusing police of systemic disregard for the lives of black citizens and conservatives blaming “urban” (aka black) family dysfunction for a culture of lawlessness to which police justifiably respond. (If people don’t break the law, the meme goes, they have nothing to fear from the police.)

As with all gross generalizations, both of these broad-brush descriptions are wrong. Worse, to the extent they become common wisdom, they get in the way of our ability to solve real problems.

Are some police officers racists? Sure. But most aren’t–most are trying to do difficult jobs in situations that are often dangerous. That said, many more–especially but not exclusively in smaller communities– have been inadequately trained or badly managed, and those are issues that we can and should address.

The stereotype about black families has long been a staple of apologists for official misbehavior. It undoubtedly fits some urban families. But ironically, recent research suggests that the stereotype is much more likely to  apply to white families in deep-red, rural America. As Thomas Edsall recently reported

In the fall of 1969, Merle Haggard topped the Billboard country charts for four weeks with “Okie from Muskogee,” the song that quickly became the anthem of red America, even before we called it that.

“We don’t smoke marijuana in Muskogee, we don’t take our trips on LSD, we don’t burn our draft cards down on Main Street, we like livin’ right and bein’ free,” Haggard declared. “We don’t make a party out of lovin’, we like holdin’ hands and pitchin’ woo.”

Times have changed.

Today Muskogee, Okla., a city of 38,863, has nine drug treatment centers and a court specifically devoted to drug offenders. A search for “methamphetamine arrest” on the website of the Muskogee Phoenix, the local newspaper, produces 316 hits.

In 2013 just under two-thirds of the births in the city of Muskogee, 62.6 percent, were to unwed mothers, including 48.3 percent of the births to white mothers. The teenage birthrate in Oklahoma was 47.3 per 1,000; in Muskogee, it’s 59.2, almost twice the national rate, which is 29.7.

Maps of social dysfunction–out-of-wedlock births, drug use, domestic violence, divorce, etc.–show these behaviors largely concentrated in Southern, bible-belt states. Similarly, a recent study by the Centers for Disease Control soundly rebutted the widely-held stereotype of the absent black father; the CDC found that black dads are, if anything, more likely to be involved with their children than fathers in other racial categories.

The problem with stereotypes–of police, of urban dwellers, of racial groups–is that they prevent us from seeing individuals and situations as they are. Pat answers and dismissive characterizations don’t solve problems–they perpetuate them.

Why We Can’t Reform Bad Policies

It’s the end of the semester, and like all professors at this time of the year, I am slogging through research papers and final exams, and complaining about otherwise bright students who can’t write a grammatically correct, properly spelled sentence. Or follow instructions. Or…

I’ll survive. (Although some students probably won’t…)

So long as their papers focus on the intersection of law and policy, I allow my students to explore whatever subjects interest them. For reasons I don’t understand, this often results in “waves” of papers addressing the same topic–in past years I’ve gotten several papers on the death penalty, or gun control, or euthanasia. This year, the favorites have been marijuana legalization and private prisons. (Students endorse legalizing pot; they object to privatizing prisons.)

The papers on private prisons compared inmate treatment, costs, oversight–the sorts of issues you would expect undergraduates to identify. But one of them also focused on a less-obvious consequence of prisons as business: lobbying by the “big guys” for more stringent punishments.

As the Washington Post recently reported

The two largest for-profit prison companies in the United States – GEO and Corrections Corporation of America – and their associates have funneled more than $10 million to candidates since 1989 and have spent nearly $25 million on lobbying efforts. Meanwhile, these private companies have seen their revenue and market share soar. They now rake in a combined $3.3 billion in annual revenue and the private federal prison population more than doubled between 2000 and 2010, according to a report by the Justice Policy Institute….

[S]everal reports have documented instances when private-prison companies have indirectly supported policies that put more Americans and immigrants behind bars – such as California’s three-strikes rule and Arizona’s highly controversial anti-illegal immigration law – by donating to politicians who support them, attending meetings with officials who back them, and lobbying for funding for Immigration and Customs Enforcement. Showing just how important these policies are to the private prison industry, both GEO Group and Corrections Corporation of America have warned shareholders that changes in these policies would hurt their bottom lines.

My students are quite properly critical of a system in which the profit motive, rather than public safety considerations, drive criminal justice policy.

I haven’t the heart to tell them that we live in an era when most policies aren’t the result of democratic deliberation informed by evidence and expertise — an era in which public policies are increasingly determined by campaign contributions and well-heeled lobbyists whose primary concern is for the bottom line–and screw the public good.

Learning from My Students

We’re at that point in the semester when my students in Law and Public Policy are doing their team presentations–sharing the results of research via Power Points and mock debates. More than one of these presentations has taught me something I didn’t know. (This is one of the “perks” of the profession, actually–you learn a lot when you teach.)

One of the teams chose to research prison privatization, a subject about which I know very little.

They began by noting that private prisons were rare prior to 1980, that they became more common in the eighties, and that between 1990 and 2009, America experienced a 1600% increase in its prison population. Given the significant sums of money involved,  they wondered whether this dramatic increase in incarceration might be at least partially explained by contractual obligations to fill cells in those proliferating private facilities.

Corrections Corporation of America and the GEO Group dominate the private prison industry, and according to the students’ research, the industry is very profitable. (Corrections Corporation of America had a share price of $1 in 2000; in 2013 it was $34.34.) In one representative contract, in Tennessee, CCA was guaranteed an occupancy rate of 90%, a guarantee that required frequent moves of inmates out of public facilities and into the private ones. Both the guarantee and the frequent shuffling of prisoners are evidently common.

You don’t have to be a bleeding heart to recognize that inmates–large numbers of whom have not been convicted of violent crimes– are entitled to be treated humanely. The number of fines, lawsuits and investigations into the management of these facilities strongly suggests that the profit motive takes precedence over the provision of basic medical care, nutrition and even physical safety.

Where there’s profit, there’s usually politics, and private prisons are no exception.

In 2013, the Indiana General Assembly undertook to modernize the state’s criminal code. One of the original changes would have reduced penalties for possession of small amounts of pot; however, Governor Pence intervened, insisting that penalties for marijuana possession and dealing be increased rather than decreased.

According to a news article at the time,

 One proposed change expected to be voted on Thursday would make possession of between about one third of an ounce and 10 pounds of marijuana the lowest-level felony rather than the highest-level misdemeanor. Indiana is eighth on the list of states where GEO does its spending, as it’s sunk more than $60,000 into state elections there. It specifically contributed $12,500 to the 2012 Pence campaign, which doesn’t seem like much without context. That contribution made GEO one of Pence’s top 30 corporate contributors, ranking in front of US Steel Corp, Caterpillar, and Koch Industries.

When prisons are profit centers, the incentives are all perverse.