Category Archives: Criminal Justice

Crime and (Kneejerk) Punishment

How many times have discussions on this blog–as well as others–focused on stupid laws? The drug war (especially marijuana prohibition) is one of the biggest offenders, having ruined countless lives, but everyone has his or her favorite example.

The litany is familiar: who thinks up these rules? Who thought X was a good idea? Why didn’t anyone consider the adverse consequences?

Well, if we want to know what prompts lawmakers to suggest and pass costly measures ranging from irrelevant to unworkable, we have a perfect case study unfolding right before our eyes in Indianapolis.

Our City is experiencing a serious crime wave. There are a number of explanations–and a lot of excuses–for our public safety problem, ranging from insufficient police presence to poverty to administrative incompetence, and it’s likely that all are implicated, along with social pathologies that resist easy answers.

So what are our intrepid lawmakers suggesting? Longer prison sentences for the people we manage to arrest! A quick fix. Easy to understand measures that will allow said lawmakers to boast that they “did something.”

Of course, the “something” they propose to do flies in the face of years of criminal justice research.

Here’s the thing: when we are trying to deter intentional crime (i.e., not a “crime of passion” committed by someone who acted out of a lack of self-control or often, lack of cognitive capacity), research confirms that what is effective is not the severity of the potential punishment–it is the certainty of that punishment. If an individual is considering engaging in a criminal act for which the punishment is 30 years in prison but the chances of getting caught are less than 5%, he’s very likely to go for it. If, on the other hand, the punishment is only 5 years but the likelihood of being caught is 95%, he’s much more likely to rethink it.

As the odds of being punished grow, so does the deterrence.

If we respond to the current crime wave by increasing the severity of punishment, our prison system will just cost taxpayers even more than it does now.

As H.L. Mencken memorably noted, for every complex problem there is an answer that is clear, simple, and wrong.

 

You Have the Right to a Lawyer…

 

Accusing lawyers who represent criminal defendants of being criminals themselves seems to be the GOP’s flavor du jour.

Some of you reading this will recall a truly despicable ad run by Mark Massa (now sitting on the Indiana Supreme Court thanks to Mitch Daniels) when he was challenging Terry Curry for the prosecutor’s office. The message was simple: Curry had once represented a criminal defendant, and was therefore unfit for public office.

Massa lost the votes of several Republican lawyers with that one.

A similar political attack advertisement is being used in South Carolina , where the Republican Governors’ Association has used it to target former prosecutor Vincent Sheheen – an attorney who now represents both civil and criminal clients in his private practice.  (Sheheen happens to be the Democratic gubernatorial candidate in South Carolina facing off against incumbent Nikki Haley.)

These attacks are deeply disturbing. If those running them actually believed that representing a criminal defendant is a sign of moral depravity  (which I rather doubt), that belief would be evidence of a total lack of constitutional competence–a total ignorance of the due process guarantees of the Bill of Rights.

I don’t think the people who run these ads are that ignorant. I think the truth is far worse: they make political ads that employ these accusations because they believe the voting public is that ignorant, and because they are willing to play on that perceived ignorance–indeed, reinforce it!–for political advantage.
This is the same tactic that is routinely used against ACLU lawyers when they represent an unpleasant person whose rights are being violated. As I used to explain over and over, I can defend your right to read a book I wouldn’t read. I can defend your right to preach doctrine I believe to be evil. I can defend your right to hold bigoted opinions without sharing those opinions. I defend your rights because liberty is indivisible: the government that can take fundamental rights away from you is the same government that can take them from me.
 Defending accused people is what lawyers are supposed to do. Otherwise, the system doesn’t work. If good lawyers are made to pay a political price for doing the right thing, fewer of them will do it–and justice will suffer.
This is one political tactic that should be beyond the pale.

 

Just Like Milton Friedman Predicted..

Libertarian economist Milton Friedman was a noted critic of America’s Drug War, pointing out all of the reasons why prohibition doesn’t work. One such reason: When a substance is illegal, the price will rise to accommodate the risk; the higher price and promise of greater profit encourages more lawbreakers.

Too bad Friedman didn’t live long enough to see his argument confirmed.

In a recent Washington Post story about drugs and Mexico, I came across the following interesting tidbit:

 Farmers in the storied “Golden Triangle” region of Mexico’s Sinaloa state, which has produced the country’s most notorious gangsters and biggest marijuana harvests, say they are no longer planting the crop. Its wholesale price has collapsed in the past five years, from $100 per kilogram to less than $25.

“It’s not worth it anymore,” said Rodrigo Silla, 50, a lifelong cannabis farmer who said he couldn’t remember the last time his family and others in their tiny hamlet gave up growing mota. “I wish the Americans would stop with this legalization.”

 ‘Nuff said.

Other Than That, Mrs. Lincoln, How Was the Play?

A group of Nobel-winning economists recently issued a report calling for an end to the War on Drugs. In part, their statement read

“The pursuit of a militarized and enforcement-led global ‘war on drugs’ strategy has produced enormous negative outcomes and collateral damage,” says the 82-page report. “These include mass incarceration in the US, highly repressive policies in Asia, vast corruption and political destabilization in Afghanistan and West Africa, immense violence in Latin America, an HIV epidemic in Russia, an acute global shortage of pain medication and the propagation of systematic human rights abuses around the world.”

I guess the drug war has a few negative consequences….

When you insist on criminalizing behavior that ought to be treated as the public health issue it is, you shouldn’t be surprised when those sanctions do horrendous collateral damage.

Alcohol prohibition didn’t work; neither does drug prohibition. There are better ways to address the problem.

But we never seem to learn.

 

 

File Under “Duh”

Andrew Sullivan recently reported on some interesting research into the consequences of state-level marijuana legalization.

A 2012 research paper by the Mexican Competitiveness Institute in Mexico called ‘If Our Neighbours Legalise’, said that the legalisation of marijuana in Colorado, Washington and California would depress cartel profits by as much as 30 per cent. A 2010 Rand Corp study of what would happen if just California legalised suggests a more modest fall-out. Using consumption in the US as the most useful measure, its authors posit that marijuana accounts for perhaps 25 per cent of the cartels’ revenues. The cartels would survive losing that, but still. “That’s enough to hurt, enough to cause massive unemployment in the illicit drugs sector,” says [fellow at the Mexico Institute at the Wilson Center David] Shirk. Less money for cartels means weaker cartels and less capacity to corrupt the judiciary and the police in Mexico with crumpled bills in brown envelopes. Crimes like extortion and kidnappings are also more easily tackled. …

Mr Shirk puts it this way. If you ask enforcement folk how large a dent their interdiction efforts – seizures, arrests, helicopter raids and so on – actually have on cartel earnings, they will say between 5 and 10 per cent. But just a few states embracing legal cannabis may end up robbing them of two to five times that amount.

In other words, when you reduce demand for an illegal product–in this case, by offering a legal alternative–you reduce illegal behavior associated with the marketing of that product.

Since cannabis is less harmful than alcohol or tobacco, regulating its sale and taxing it–rather than criminalizing its use– would appear to be a win-win.