Category: Crime & Incarceration

The new Range War: a query

Has a single “conservative” pol or pundit condemned pointing guns at officials enforcing court orders?

Has a single “conservative” pundit or politician condemned the practice of pointing loaded weapons at law enforcement officials carrying out a valid court order?

Update: Yes. See below.

BundyRanchSniper

Not that I’ve seen, so far. Just lots of pap about how “sympathetic” we should be to someone who prefers to use resources he doesn’t own without paying for them and who does not recognize the existence of the United States of America.

And that’s why I usually put “conservative” in scare quotes when referring to the currently dominant faction of the Red Team. There are real conservatives, just as there’s real medical marijuana. But Sean Hannity has about as much to do with actual conservatism as kush doctors offering recommendations to all comers at $35 a throw and dispensaries with bikini-clad beckoners outside have to do with actual medicine.

The difference between the left and the right in American politics is that the lunatic left is a marginal phenomenon; on the right, the lunatic fringe is the mainstream. I hope the genunine conservatives out there will do something to take their good name back from the snipers and the cheerleaders for snipers.

Update Megan McArdle’s column counts as a “Yes” answer to my question, though with two qualifications. First, though her political coloration is clearly Red rather than Blue, she’s a libertarian rather than a conservative. Second, her focus is on the wrongness of Bundy’s defiance of the law and his claim to use resources he doesn’t own without paying for them rather than on the wrongness of his followers using armed force to resist the rule of law.

What’s striking, though, is that so far she seems to be the only player on the Red team - pol or pundit - who has taken any sort of anti-Bundy stance. The default position seems to be that threatening to kill federal officials is just hunky-dory. As Megan points out, the racial dimensions of this are disturbing.

News Chew

The DEA has apparently been staking out Midwest Hydroganics of Illinois for a few years; 46-year-old Angela Kirking is only the most recent individual to be hassled after shopping there. Whether or not the search warrant holds, discovering some weed in a lady’s “art room” seems like a waste of clean uniforms.

In the gritty TV show where I imagine all drug raids take place, pulling up a few grams of weed is hardly a DUN DUN DUN moment. I can’t think of a more benign place for marijuana to be found than in the art room of some funky lady who paints faces for a living and eats the petals off her organic hibiscus plant.

Now that she knows the DEA is watching the spot she bought some compost at that one time, she does not plan to take her business elsewhere.

“I’d love to send all my friends [to Midwest Hydroganics] to see how far they take this.”

Her new goal in the drug war is to run the DEA around until they tucker themselves out. This week I am helping my landlord put in a bunch of raised beds and beside the buttloads of weed the City of Oakland requires we grow, I will be sticking in a hibiscus.

Stories like these don’t help the DEA with their reputation for being a little silly and maybe a lot deaf.  In a press conference last week DEA Chief Michele Leonhart provided a pull-quote for all saying the trend of relaxing opinions on cannabis in the U.S. only makes her “fight harder.”

It’s unnerving for a government agent to declare that citizens don’t know what’s good for them and the more those citizens change their minds, the harder that agency will resist changing gears. Because you’ll see, you’ll all see!

America is uninterested in seeing the Angela Kirkings of the world arrested at gunpoint for a stash of what they probably adorably still call dope. But for each article written about an upper-middle-class white lady getting arrested for possession, law enforcement arrests lots of black and brown people for pretty much the same thing without the media saying “boo.” Articles like the one in the Shorewood Patch get picked up because they fit a certain storyline. More on that in a later post

Anyway, if all this seems anecdotal, here comes some fun new data from Pew Research showing that most people in the U.S. think cannabis will eventually be legal everywhere. Regarding the “hard” drugs, a growing majority of Americans believe time and resources are better spent on recovery than prosecution. Also cocaine use is down (yay) and heroine use is up (boo).

Bureaucratic politics 101: the U.S. adjusts its position on the drug treaties

INL’s Shawshank Redemption: thanks to cannabis legalization in WA and CO, the US now finds “flexibility” in the drug control treaties.

Historically, the United States was the chief architect of the prohibition-oriented international drug control regime, and among the most “hawkish” of the signatories (along with Sweden, France, Russia, Japan, and Singapore, and much of the Arab world). The U.S. did a bunch of finger-wagging at the Dutch for their relatively liberal policies. And the Bureau of International Narcotics and Law Enforcement in the State Department (“INL” in Alphabet-speak, informally “Drugs and Thugs”) has long been one of the more hawkish players in internal drug-policy debates.

The treaties, on their face, require the criminalization of not only drug dealing but drug use. One of the arguments made against the tax-and-regulation approaches adopted by initiative in Colorado and Washington State was that their adoption would put the country out of compliance with its treaty obligations. There are legal loopholes: the treaties acknowledge that their obligations apply to each signatory only insofar as consistent with its domestic institutional arrangements. Since the U.S. federal government, the party bound by the treaties, lacks the constitutional power to require criminalization at the state level, it’s not clear that the actions by Colorado and Washington State voters can be said to have been illegal under international law.

Uruguay has gone further, legalizing at the national level. The Uruguayan government argues that even that is allowed by the treaties, because the treaties recite the reduction of illegal drug trafficking and the protection of public health among their stated goals, and the Uruguayan law is designed to accomplish those goals. Whatever the merits of that argument legally - personally, I don’t think it passes the giggle test, though as a policy matter I’m glad Uruguay is making the experiment and hope it succeeds - it is one that the United States could once have been counted on to scorn.

And yet, when the U.N. Commission on Narcotic drugs met in Vienna last month, and some member countries got up to criticize the Uruguayan move (which the International Narcotics Control Board, the referee set up by the treaties, promptly denounced) the U.S. had no comment on that issue.

In part that reflects changing U.S. public opinion about cannabis, and the more liberal stance of the Obama Administration compared to its predecessors. But in part it reflects the fact that INCB also blasted Colorado and Washington State, putting INL in the position of having to defend the permissibility under international law of those regimes and of the accommodating stance toward them adopted by the Justice Department. So the voters in those two states in effect forced a change in our national stance in international fora.

Here’s Ambassador William Brownfield, the Assistant Secretary of State in charge of INL, explaining the new stance: the treaties, we are now told, are “living documents,” allowing “flexibility” in how different nations choose to meet their obligations, and we should seek a new consensus about what that means.

Obvious, once it’s happened. (It might not have happened in, say, the Romney Administration.) But, as far as I know, not predicted in advance by anyone, least of all by me.

Footnote It would be easier to take more seriously the self-appointed “Global Commission on Drug Policy” if spokespeople such as Michel Kazaktchine didn’t insist on making nonsensical claims, such as that minor drug offenses account for half of U.S. incarceration (the actual figure is more like 20% for all drug offenses) and that prohibition has failed to reduce consumption (compared to what?) and that alcohol and tobacco control via taxation and regulation have been more successful (by what measure).

Suspending The Privilege to Drink

Husband, while opening a beer: “It’s every working man’s right to have a beer on the weekend!”

Wife: “It’s Wednesday and you’re unemployed.”

24/7 Sobriety is a program that mandates abstinence from alcohol for a number of months after a problem drinker is convicted of repeat drink driving or alcohol-related assault. Offenders’ alcohol use is regularly monitored, with any drinking being punished by a swift, certain but modest sanction (e.g., one night in jail). The program has been shown to reduce the rate of alcohol-involved vehicular deaths, drink driving arrests and domestic violence arrests.

You might think that no one could be against something that protects public safety while also helping people with drinking problems stay abstinent. But almost every time I give a talk about 24/7 Sobriety, a few people express upset that the “right to drink” of offenders is being compromised.

Sometimes it’s an ideological objection based on what I consider a overly literal interpretation of the harm reduction philosophy. For people with this viewpoint, state intervention in the use of a substance per se is always wrong. A second group of critics make an even balder criticism: “It’s every working man’s right to have a beer” — a senior male British politician used these very words when I was working with the U.K. Parliament on 24/7 Sobriety enabling legislation in 2012. (Not incidentally, the Parliamentary champions of the U.K. legislation were disproportionately female).

I have tried to persuade these critics to relent. For the first group of critics, I note that even though 24/7 Sobriety targets substance use per se it does a brilliant job of reducing harm. But this observation tends to inflame the opposition for the simple reason that it’s accurate (Nothing irritates an ideologue more than to have his or her philosophy empirically disconfirmed). For the second group of critics, I advance the argument that rights compete with each other, and the right of a man to drink could never trump the right of a woman not to have her nose broken by a drunken husband. Stony silence has been my usual reward for that argument.

I therefore am in debt to Beau Kilmer for providing a different framing of the issue that has on multiple occasions helped move the minority of critics towards consensus with the majority who are thrilled about the benefits of 24/7 sobriety. Beau noted that we don’t let some people drive or drink: Children and adolescents. When we become adults, we are granted these privileges but we all accept that if you prove to be a reckless driver, your driving privileges can be temporarily suspended. 24/7 sobriety is an extension of the same, widely-accepted concept: If you prove to be a reckless drinker your drinking privileges can also be temporarily suspended. That’s a perspective that everyone who cares about public health and public safety should be able to get behind.

Is Continued De-Incarceration Guaranteed?

After rising inexorably for more than three decades, the U.S. prison population has declined three years in a row. Few people see this as anything other than an extremely positive development. But will it last? Some prison policy watchers are more optimistic than others.

Mike Konczal is one of many smart people who has raised the worry that as The Great Recession disappears into the rear-view mirror, states will return to fiscal health and consequently lose interest in slashing prison budgets.

I don’t share Konczal’s anxiety, for two reasons. First, because the general pattern in U.S. history is for prison populations to grow rather than shrink during economic downturns, I am not convinced that The Great Recession was very important to the reversal of the 30+ year mass incarceration trend. Second, states like South Dakota whose public finances are already in rude health are nonetheless taking major steps to reduce incarceration.

A different case for pessimism, among some liberals at least, is that now that some prisons are privatized, the powerhouse lobbyists of that industry will prevent further de-incarceration. Some people on the political right are too reflexively fearful of government and too trusting of the private sector. Prison policy is a case where the opposite set of biases afflicts some analysts on the left. Over 90% of U.S. inmates are in public prisons. The political power of public sector unions on incarceration-related issues thus dwarfs that of the small private sector. If the private prison operators and public sector prison employees unions allied in the cause of preventing de-incarceration, it could be a significant political problem, but that’s not very likely because they hate each others’ guts.

Turning to the case for optimism, Charles Lane persuasively cites the impact of our still-falling crime rate:

Less crime leads to declining incarceration in two ways. First, and most obvious, there are fewer law-breakers to lock up. Second, safer streets reduce the public’s demand for tough “law and order” policies like the stiff mandatory minimum sentences that helped drive the U.S. rate of incarceration up in the 80s and 90s.

Kevin Drum is even more upbeat based on his analysis of lead exposure research. He argues that the generation that grew up in the leaded gasoline era was uniquely violent. As they age out and are replaced by non-exposed generations, Kevin expects crime and incarceration rates to continue their fall.

You don’t have to accept the lead explanation to make an equally positive projection about the future. Prisoners tend to have long criminal histories that began when they were teenagers. As a result, the current size of the prison population reflects the crime rate of a decade or two ago better than it does that of the present moment. Ten years from now, the prison population will better reflect the low crime rate we have been enjoying in recent years, which translates into many fewer people serving hard time.

Machiavelli, James Q. Wilson, and the paradoxes of crime control

Punishment requires injury. Reformation requires improvement. People are not improved by injury.

This week Pepperdine University will hold a conference on the thought of James Q. Wilson, and I will present a paper called “Wilson’s Machiavellian Cruelty”. The first half of the paper argues that Wilson’s failure to acknowledge that punishment is cruel led him - and those of us who followed him - into avoidable errors. The second half tries to construct a crime control strategy to keep crime rates moving down while reversing the disastrous move toward mass incarceration.

A central problem is the paradox of punishment pointed out by Plato and (more pithily) by George Bernard Shaw:

Punishment requires injury.
Reformation requires improvement.
Injury does not improve.

I would appreciate comments from those with expert knowledge on the relevant topics.

Political Parties Suffer When They Don’t Listen, and So Does the Country

When voters are suffering, they will reject politicians who tell them their pain isn’t real and follow anyone who seems to listen

Ed Kilgore argues that my account of why many liberal politicians supported mandatory minimum sentences and other “tough on crime” policies left out one important motivation:

I remember graphically (because I worked for him at the time) when Zell Miller, who (lest we forget) had an early reputation as a reasonably progressive “populist”, came out for a “Two Strikes and You’re Out” law during the run-up to his difficult 1994 re-election campaign as Georgia governor. True, the provision only applied to offenders convicted of violent crimes, but the gambit was typical of the tendency of many Democrats to adopt mandatory minimum schemes to avoid being outflanked on the right on the crime issue.

Ed is a seasoned political observer and his observation rings true. I would like to take it one step further: WHY was it frightening for liberal politicians to be viewed as soft on crime? The correct answer is not “because conservatives had fooled the public into worrying about crime” but that crime had been increasing for decades and the public were desperate for politicians to respond.

As Mark Kleiman has noted, the American left lost on the crime issue starting in the 1960s and 1970s because it stopped listening to the public. The extraordinary surge of crime that began in the 1960s caused enormous suffering. And when Americans are suffering, they get very angry when politicians tell them their suffering is no big deal (“Many neighborhoods are as safe as ever!”), or is really due to something else (“We don’t have a crime problem, we have a poverty problem!”), or that the public should apologize for being upset (“Complaining about crime is just coded racism”). Americans who feel unheard often express their anger by voting for some politician — any politician — who seems to be listening. And when it came to crime, for many years most of those politicians were conservative.

Liberals were in shock on crime policy for a long time afterwards. They had been talking amongst themselves when they should have been listening to people outside the bubble. California Republicans made the same mistake when they decided to go anti-immigrant in the 1980s. The Tea Party is committing the same blunder right now as they plan out where they will store all the roses the public will supposedly buy them if the federal government is shut down on October 1. Failure to listen isn’t a left or right thing. Rather, it’s a thoroughly human weakness about which political parties should be constantly vigilant.

Perhaps the dynamic of political parties not listening until the suffering public rebels is an unavoidable part of politics in a democratic republic. It’s healthy insofar as it puts power in the hands of the citizenry, but it’s malign in that it can led to the adoption of some destructive public policies. Given a choice between submitting meekly to a political party that tells them to STFU and a bad policy proposed by someone who seems to be listening, suffering voters will go for the bad policy most of the time. Perhaps the lesson for the political class is that if you want good public policy, respond to unhappy voters by taking the cotton out of your ears and putting it in your mouth. If you don’t, they will find someone else who will.

The Feminist Triumph Over Sexual Violence

A quarter century or so ago, when I was volunteering as a counselor to sexual assault victims in East Lansing, Michigan, the police force in the neighboring city of Lansing was so dismissive of rape accusations that an activist friend said in the newspaper: “My advice to women is that if you get raped in Lansing, crawl to East Lansing to report it”.

But Lansing was not that much of an outlier. Police chiefs and other public officials in many cities made unfunny jokes about rape victims (e.g., “If it happens to you, just lie back and enjoy it”) and suffered no consequence. The women’s movement had become influential in some parts of the country, but many women didn’t bother to report rape because they assumed correctly that the police would not investigate adequately and a jury would be as likely to blame the victim as the perpetrator. This will sound like one of those “In my day…” stories with which the old endlessly bore the young…nevertheless, if you are a young American man or woman you really can’t imagine how widely sexual assault was tolerated in your country.

I am overjoyed to say that I can hardly recognize the world I live in today when it comes to sexual violence. The rate of sexual assault has dropped dramatically. One of the most powerful men in the world is arrested for rape and held at Riker’s island upon the word of a hotel maid. After a British cabinet minister fumbles his words and seems to say that some rapes are not serious, The Prime Minister and the Leader of the Opposition spend question time trying to out-do each other in their public condemnation of sexual assault.

No one factor can explain such sweeping cultural change, but there is no doubt that the redoubtable women of the feminist movement were an essential part of the revolution. They were screamed at, bullied, spat upon and oppressed but they simply refused to relent. They rallied, they spoke out, they comforted the victims and they held perpetrators and their enablers to account. And, of course, they were right.

There are still sexual atrocities committed against women every day, and the work is by no means finished. But that in no way diminishes the extraordinary transformation of the past 30 years. Every woman, everyone who loves a woman, everyone who is raising a little girl or for that matter a little boy, owes feminists a debt for the better, safer and more equal society that we are blessed with today.

Freedom of Information for Criminals: A Great Idea

After reading my post on 24/7 Sobriety, the criminologist David Kennedy was kind enough to send me a copy of Deterrence and Crime Prevention. His book is a tour de force not just for its intellectual value, but for its wisdom about why people do the things they do (cops and robbers both). One of the many valuable lessons of the book is that a good deal of crime can be prevented simply by giving criminals better, simpler information about what the rules are.

Kennedy gives the example of a young gang member with several prior convictions who did not realize that his next gun-related arrest would result in a long federal sentence, and ending up being sent upriver for 15 years for a minor violation (possessing a bullet). A number of other gang members then came in to check with the police to see if they were in the same legal situation and many found out to their surprise that they were. Some law enforcement officials might say “In revealing their status to them the police gave up the chance to send them away for a long time, like the guy with the bullet”. Exactly. The chance goes away because the criminals didn’t carry guns and bullets anymore, i.e., they were deterred once they understood what the rules were.

But deterrence isn’t the only reason to lay cards on the table with criminals. If you had a robot that punished with 100% accuracy every violation of any rule you imposed on your children, would you still tell your children the rules in advance, given that punishment would be perfectly applied with no effort on your part? Of course you would, because you care about your kids and therefore don’t want them punished unnecessarily. When your kids see you take the time to tell them the rules, they know that you care. Many criminals live in neighborhoods where the dominant narrative holds that cops/judges/majority society hate us. When a police officer or judge or some other law enforcement official takes the time to help them understand the rules, it undermines that narrative by showing that someone in authority cares about them. When people feel cared about and that life isn’t rigged against them, they are less likely to lash out and be destructive to themselves and the people around them.

To come back to 24/7 and HOPE probation, both programs have simple rules that are explained transparently to offenders at the outset. This contrasts with the usual situation in court, which is an offender being baffled by the proceedings and hoping meekly to escape punishment. The rules of the courtroom, probation and parole are complex even for the professionals, and the average criminal has lower education, IQ and literacy than the general population. Anyone who has been in court has seen a judge ask a defendant “Do you understand?” and seen the defendant look over at his/her lawyer for a cue, get a nod, and then say “Yes judge, I understand”.

From what I have seen, offenders in 24/7 and HOPE do understand the rules, and have the sense of being cared about, most particularly that the judge and the staff actually want them to succeed, which may be a key reason why most of them fact do succeed. And strikingly, even when they don’t, they typically draw the conclusion that is better for them and society: “I got punished because I screwed up, better not do that again”, rather than “I don’t know why I got punished but I know it wasn’t fair and someday, somehow, someone’s gonna pay”.