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January 10, 2010

Effective discussion of new (version of old) thinking about deterrence

This morning's New York Times magazine has this effective piece by Jeff Rosen titled "Prisoners of Parole."  The full piece is a must read, and here is a snippet from the start and end of the piece:
Classical deterrence theory has long held that the threat of a mild punishment imposed reliably and immediately has a much greater deterrent effect than the threat of a severe punishment that is delayed and uncertain.  Recent work in behavioral economics has helped to explain this phenomenon: people are more sensitive to the immediate than the slightly deferred future and focus more on how likely an outcome is than how bad it is.  In the course of implementing HOPE, [Hawaii state Judge Steven] Alm discovered another reason why the strategy works: people are most likely to obey the law when they’re subject to punishments they perceive as legitimate, fair and consistent, rather than arbitrary and capricious. “When the system isn’t consistent and predictable, when people are punished randomly, they think, My probation officer doesn’t like me, or, Someone’s prejudiced against me,” Alm told me, “rather than seeing that everyone who breaks a rule is treated equally, in precisely the same way.”...

[T]he judges and scholars developing new deterrence strategies are changing the way we think about parole, probation, gang violence and drug markets.  But the strategies also present a rare opportunity to persuade the nation’s policymakers that the most urgent case for prison reform is not only economic but also moral and practical.  Yes, it’s an outrage that the United States locks up citizens for so long with such uncertain effect; but it’s also self-defeating, because long sentences give rise to a crisis of legitimacy that can lead to more crime, not less.

A crisis of legitimacy may sound like a huge, perhaps intractable problem, but the tantalizing promise of the new deterrence thinking is that the crisis can actually be solved, practical step by practical step.  The relative simplicity of the solutions, it turns out, is at the core of their radical potential.

January 10, 2010 at 11:31 AM | Permalink


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Parole as a Deterrent: Over the weekend, Doug Berman posted a link to "Prisoners of Parole" on his website, Sentencing Law and Policy. According to Berman the New York Magazine piece, by Jeffrey Rosen, provides an "[e]ffective discussion of new... [Read More]

Tracked on Jan 11, 2010 5:43:11 PM


Judge Alm was practicing a form of the drug or reentry court paradigm which is widely used throughout the country. I am a proponent of swift and sure sanctions-not because they increase legitimacy in the eyes of offenders because I think "legitamacy" is a red herring issue- but because they are more effective.

However, drug/reentry courts are labor and time intensive and the outcomes I have reviewed are disappointing--a decrease in the recidivism rate of approximately 10%.

Posted by: mjs | Jan 10, 2010 1:32:35 PM

You have the police cruiser. It catches and fines 10% of speeders.

You have a radar guided camera. It records and sends tickets to 90% of speeders.

Estimate the average speed of that road under those two conditions. Estimate the protests from motorists under those two conditions. To avoid those protests, the speed limit should reflect the engineering of that road, not the plan to raise revenue without a tax increase, unrealistically low gotcha speed limits, now you are going to be put on a chain gang picking cotton, for going 1 mile/hour over the limit.

Sexting is like that. A pretext for lawyers to go after kids, to generate income, to look at nude pics of kids as part of their job duty.

Posted by: Supremacy Claus | Jan 10, 2010 2:17:12 PM

A society that makes criminals' assessment of the "legitimacy" of their punishment the touchstone of "reform" forfeits the underlying, basic source of legitimacy at all: The notion that those who obey the rules, not those who break them, are the ones with standing to decide what the punishment shall be.

This would be true in any case, but it's truth is particularly obvious when one pauses to consider that caught criminals have a self-interested stake in the definintion of "legitimate." Few of them say or ever will say, "I knocked over the liquor store because I wanted quick money for my next fix." What they say (if they say anything) is, "I came from a broken home and a lousy school, so what I did isn't my fault. It's YOUR fault."

It's just foolish to accept the view's of the person to be punished as authoritative on the "legitimacy" of the coming punishment. His veiws are ALWAYS going to be: Little if any, and certainly less punishment than the present law suggests.

The other premise of the article is also implausible. The extent to which a parolee abides by the terms of parole depends principally on his view of how serious and vigilant the authorities will be in monitoring him, not on his approval of the rules he has to obey.

The article reflects the same kind of thinking that lies behind the "Why do they hate us?" response to al Qaeda's terrorism. That thinking produces the notion that our response should be to change our behavior to make al Qaeda less displeased with us. But the correct response is not to bend to the demands of terrorists (assuming those demands could be met in any event, which, being nihilistic, they cannot). The correct response is to renew faith in the right of the United States and its people to live in peace and safety, and destroy through force those who would deny us that right.

Posted by: Bill Otis | Jan 10, 2010 7:05:55 PM

A justice system which loses its legitimacy in a substantial portion of the citizenry will not last long. Though those whose bread is or was buttered by locking up others people probably can't fathom the concept, the zeal with which the United States has demonstrated in locking up its citizens has directly lead to the concurrent development of a growing percentage of its populace being locked up or having a loved one locked up--and therefore don't consider themselves stakeholders in the justice system.
No justice system can survive on the threat of punishment alone. Rather, voluntary compliance with a fairly-administrated system of laws that are considered "just" is required. Moreover, law enforcement can rarely be effective without the assistance and cooperation of the citizenry. I think everyone who works in the criminal justice system is aware that a growing and substantial portion of the population of the United States does not believe that the criminal law is administered in a manner of legitimate "justice."
Though soundbites from our elected about being "tuff" on crime can and do affect the sheeple, the continuous stream of new laws and enhanced sentences serve to create more criminals, and ultimately less safety--as a country with such a voracious incarceration appetite that it must lock up nearly two percent of its adult population will ultimately centrifuge apart.

Posted by: Mark # 1 | Jan 10, 2010 8:53:59 PM

"I think everyone who works in the criminal justice system is aware that a growing and substantial portion of the population of the United States does not believe that the criminal law is administered in a manner of legitimate 'justice.'"

Somehow I have to believe you have no idea what "everyone" in the criminal justice system thinks -- or one-tenth of one percent of them for that matter. What you're actually saying is the the law is not administered in a way YOU view as legitimate. And you're entitled to your view. You're just not entitled to assume "everyone" else shares it.

But even if your view were universal, you'd have to take it up with Eric Holder. He's your guy, not mine.

"Though soundbites from our elected about being 'tuff' on crime can and do affect the sheeple, the continuous stream of new laws and enhanced sentences serve to create more criminals, and ultimately less safety--as a country with such a voracious incarceration appetite that it must lock up nearly two percent of its adult population will ultimately centrifuge apart."

1. As a number of articles posted by Doug recently illustrate, the supposed "continuous stream of new laws and enhanced sentences" have coincided with a marked DECREASE in the crime rate.

2. In fact there is no such increase in enhanced sentences, certainly not at the federal level. Sentencing Commission statistics show that, since Booker, the number of departures has increased, and almost all departures (more than 95%) are downward.

3. But even if there were an increase in enhanced sentences, the blame for that does not lie with the "system" (which now and at least since 2006 had had majority control by the Democratic Party).

There is a really easy way to avoid becoming a part of "incarceration nation": Obey the law. It's not that hard. Having been an AUSA for a long time, I can tell you that you have to work to get into federal prison.

Posted by: Bill Otis | Jan 10, 2010 10:28:43 PM

A more careful reading would reveal that I said that "everyone" is aware that there is a subset of our population does not believe that the criminal law is administered fairly--to paraphrase what I wrote. I didn't manifest any type of belief about what others who work in the criminal justice system think, nor did I specify what my personal opinion is regarding same. To return to the issue of the post; you are free to believe otherwise regarding the legitimacy of the criminal justice system, but denying the fact that a substantial portion of the United States citizenry is not invested in what we call the "justice" system is nothing more than wishful thinking.

Posted by: Mark # 1 | Jan 11, 2010 1:00:20 AM

"When researchers tabulated and analyzed the results, they found a peculiar pattern. As we'd expect, in evaluating the fairness of their trial, respondents places a lot of weight on the outcome. Someone who got off with a light sentence naturally thought the trial was more fair than a guy who got the maximum sentence.

"But it turns out that regardless of the crime they committed or the punishment they received, respondents placed nearly as much wight on the process as they did on the outcome.

"One of the factors weighed most heavily by respondents was how much time their lawyer spent with them. The more time he or she spent with them, the more satisfied the respondents were with the ultimate outcome. Now, you'd think that the results would have been the opposite: a convicted felon who got stuck with a long sentence, especially after spending time with his attorney, would be angry. But it turns out that the behavior of his lawyer made a huge difference. In other words, although the outcome might be exactly the same, when we don't get to voice our concerns, we perceive the overall fairness of the experience quite differently." (Sway: The irresistible Pull of Irrational Behavior, pp 120-121. Citing Casper, J.D., Tyler, T.R., and Fisher, B. (1988). "Procedural justice in felony cases." Law and Society Review, 22, 483-507.)

Respect for the law matters.

Posted by: George | Jan 11, 2010 1:56:45 AM

Just as there are few if any "guilty" inmates in prison, there are few inmates who, after they are caught, view the laws they violate as legitimate. This is a simple "after the fact rationalization" that left-leaning types have adopted as the current "apologist" mantra.

Bill Otis is right to compare this line of thinking to those who wring their hands and wonder why Al Qaeda hates America.The current administration is discovering that a policy based on appeasement is foolhardy and unduly risks the security of our nation.

Posted by: mjs | Jan 11, 2010 9:52:40 AM

George --

You could not be more correct that respect for law matters. People could start respecting it by obeying it. When they don't, their "respect" AFTER THE FACT OF GETTING CAUGHT is a bit suspect, don't you think?

The whole enterprise of asking a bunch of swindlers, thieves and strongarms what they think of the "fairness" of the system is just bizarre. As I said (and you don't dispute) they necessarily have a self-interested and biased outlook. And by their prior behavior, they have already demonstrated their "standard" of "fairness," that being to take as much as they can from people who are weaker, slower or older.

Finally, they are more likely to develop respect for the fairness of the system if they see that the people who devised it respect it and have confidence in it, rather than run, tail-between-legs, to the inmate population to plead for expiation.

Posted by: Bill Otis | Jan 11, 2010 10:37:16 AM

People are not born with respect for the law the vast majority learn to respect the law because they known it is vital to an ordered society. However it only takes a small minority who have contempt for the law to saturate the criminal justice system.

Some of the problems that can reduce respect for the law are
1. Wrongful arrests.
2. Wrongful convictions.
3. Wrongful incarceration either because the punishment does not fit the crime or a wrongful revocation of parole/probation.
4. Wrongful executions.

In some jurisdictions they try to reduce the frequency of such problems and in other jurisdictions they deny that they are a problem. I don't think that denial works.

Posted by: John Neff | Jan 11, 2010 12:39:18 PM

Those who have contempt for the law are the anti-social,anti-authority, instant gratification-wanting individuals that the law is designed to protect us from. Most develop their criminal tendencies early-on from behavior they see at home or on the streets. It has nothing to do with perceived injustice but everything to do with "getting over" and not being seen as a "chump" who works a 9-5 job. Appeasement of this group only weakens the law.

Posted by: mjs | Jan 11, 2010 2:12:41 PM

Prof. Neff --

People don't commit crime because they disrespect the law. They commit crime mostly because they want to make a fast buck. It's easier, from their point of view, to steal $100 than earn $100. Disrespect for law might be a catalyst for crime, but it is not the cause of crime.

This is even more so in the case of violent crime like rape and murder.

And there will be more disrespect for law, not less, if our people see that those who make and administer the law are so full of guilt and self-doubt that they ask criminals, no less, to rate how they're doing.

Convicts -- the most self-interested and biased class you could possibly cobble together -- are hardly the ones to be judging the laws they were caught flouting.

Posted by: Bill Otis | Jan 11, 2010 2:26:08 PM

Mr. Bill: "When they don't, their "respect" AFTER THE FACT OF GETTING CAUGHT is a bit suspect, don't you think?"

If only they had qualified immunity against their "harmless errors" and many crimes are harmless errors, like possession of pot. Yes, a "harmless error" usually means the government broke the law in some respect, which means the government did not respect its own laws but got a win anyway because how the prosecutor broke the law was harmless. I'm reminded of all the prosecutors that fight the Innocence Project AFTER THE FACT OF GETTING CAUGHT.

If we extrapolate the Innocence Project data to all convictions, there are probably enough wrongful convictions to fill about 10 prisons. All harmless errors.

Is it really harmless? But all of this is really the logical conclusion of the number one purpose of government being public safety rather than first and foremost upholding the Constitution. It is fallacious to claim public safety can only come at the expense of the Constitution.

Posted by: George | Jan 11, 2010 2:43:01 PM

George --

"It is fallacious to claim public safety can only come at the expense of the Constitution."

Just so. That's why I never claimed it.

One thing I do claim is that the Constitution does not prevent us from taking the steps needed to protect ourselves from mass murder. Case in point: The Christmas day airline bomber. He had trained with others, apparently 20 of them, all loyal jihadists, as was he. The likelihood that he was the only one who embarked, or is going to embark, on such a mission is small if not infinitesimal. There could have been others in the air the moment he was caught, or on planes to take off within the hour, or that night.

When we have captured someone who may know about those plans, it would be past insane, and a moral abomination, NOT to obtain that information from him. It is accordingly likewise past insane soothingly to assure him that he "has the right to remain silent." A decent respect for the lives of innocent people demands that we do what is necessary TO GET HIM TO TALK, not invite him to clam up.

Justice Robert H. Jackson once famously said that the "Constitution is not a suicide pact." He was right, and you are wrong.

Posted by: Bill Otis | Jan 11, 2010 5:23:31 PM

Mr. Bill, Jeralyn at TalkLeft answers your straw man argument better than I could, but your Jackson quote is worth an ironic chuckle.

I agree with Justice Jackson's dissent in Terminiello v. Chicago, (337 U.S. 1 (1949)) in the sense that the First Amendment right to trial by media and if it bleeds, it leads to profit is a suicide pact regarding the Bill of Rights.

Posted by: George | Jan 11, 2010 6:38:30 PM

Dr. George --

That thing at Talk Left is an answer? Not hardly. It's the same old, same old. Anyone who takes these airline bombers seriously is overcome by "hysteria." There is simply no such thing as a sensible, serious concern about these killers. It's all a Republican boogeyman. Etcetera, etcetera.

The problem with my supposed "strawman" is the actual man, Mr. Abdulmutallab, of whom you and TalkLeft make so light.

Talk Left is long on nose-in-the-air piety but short -- real short -- on specific answers about what we're going to do to get timely and essential intelligence. On 9/11, the plot involved three planes, all flying simultaneously. When Abdulmutallab was captured, there were plenty of planes in the air. How do you know that one or more of them was not also targeted for a suicide explosion within hours or minutes? How do you know that one or more of the planes scheduled for imminent take off had not been targeted? How do you know that one or more scheduled to fly tomorrow has not been tarteted? Or next week?

Answer: You don't.

Question: Do you think it might be important to find out?

To invite Abdulmutallab to clam up about the plans of his fellow al Qaeda trainees was, I repeat, beyond insane. TalkLeft is blase' at best about obtaining intelligence, and in fact is the first to condemn -- also as Constitutional violations -- the very alternative methods it sneeringly (and with undisguised mockery) now hypocritically recommends that we use.

I can only hope the Democratic Party runs on this thinly disguised To Hell Wiith America platform, since if they do, they'll be headed for an even bigger wipeout than the one they're headed for now.

Posted by: Bill Otis | Jan 11, 2010 8:25:21 PM

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: This great nation will never be intimidated.


BUSH: People are going about their daily lives, working and shopping and playing, worshiping at churches and synagogues and mosques, going to movies, and to baseball games.

Where did that come from?

Barack Obama Attacks President Bush's Post-9/11 Message to America

Bush was right. TalkLeft is right. You are wrong.

Posted by: George | Jan 11, 2010 10:56:56 PM

I guess our local Gestapo wannabee has carefully ignored the testimony of those who gather intelligence for a living who state that torture only produces whatever the torturer wishes to hear (assuming for the moment that whether torture is effective or not even matters). Of course, the henchmen of the buffoon's administration have a vested interest in blurring that fact, don't they? My, how the torture apologists love the ticking bomb scenario. . .I would have (slightly) more respect if they would just admit that using the overarching power of the government against a helpless person just--feels--good. . .

Posted by: Mark # 1 | Jan 12, 2010 1:56:08 AM

Mark # 1 --

Occasionally I will say here that there are those who, in their contempt for America and/or willful blindness to the danger facing us, cheerlead for the supposed "right" of al Qaeda operatives to maintain the secrecy of their grisly plans. This is a hard point to sell, since there are few such people; some have difficulty believing they exist at all. Thus I thank you for your post.

Posted by: Bill Otis | Jan 12, 2010 9:10:32 AM

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