#what does criminogenic mean

[zakir352818]

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[mostlysignssomeportents]

Pluralist, your daily link-dose: 22 Feb 2020

Today’s links

Tax Justice Network publishes a new global Financial Secrecy Index: US and UK, neck-and-neck

What Marc Davis lifted from the Addams Family while designing the Haunted Mansion: Amateurs plagiarize, artists steal

ICANN should demand to see the secret financial docs in the .ORG selloff: at least it’s an Ethos

Wells Fargo will pay $3b for 2 million acts of fraud: they shoulda got the corporate death penalty

This day in history: 2019, 2015, 2010

Colophon: Recent publications, current writing projects, upcoming appearances, current reading

Tax Justice Network publishes a new global Financial Secrecy Index (permalink)

The Tax Justice Network just published its latest Financial Secrecy Index, the leading empirical index of global financial secrecy policies. The US continues to make a dismal showing, as does the UK (factoring in overseas territories).

https://fsi.taxjustice.net/en/

Both Holland and Switzerland backslid this year.

Important to remember that “bad governance” scandals in poor countries (like the multibillion-dollar Angolaleaks scandal) involve rich financial secrecy havens as laundries for looted national treasure.

https://www.theguardian.com/world/2020/jan/19/isabel-dos-santos-revealed-africa-richest-woman-2bn-empire-luanda-leaks-angola

As Tax Justice breaks it down: “The secrecy world creates a criminogenic hothouse for multiple evils including fraud, tax cheating, escape from financial regulations, embezzlement, insider dealing, bribery, money laundering, and plenty more. It provides multiple ways for insiders to extract wealth at the expense of societies, creating political impunity and undermining the healthy ‘no taxation without representation’ bargain that has underpinned the growth of accountable modern nation states. Many poorer countries, deprived of tax and haemorrhaging capital into secrecy jurisdictions, rely on foreign aid handouts.”

Talk about getting you coming and going! First we make bank helping your corrupt leaders rob you blind, then we loan you money so you can keep the lights on and get fat on the interest (and force you to sell off your looted, ailing state industries as “economic reforms”).

The Taxcast, which is the Network’s podcast, has a great special edition in which the index’s key researchers explain their work. It’s always a good day when a new Taxcast drops.

https://www.taxjustice.net/2020/02/20/financial-secrecy-index-who-are-the-worlds-worst-offenders-the-tax-justice-network-podcast-special-february-2020/

What Marc Davis lifted from the Addams Family while designing the Haunted Mansion (permalink)

It’s always a good day — a GREAT day — when the Long Forgotten Haunted Mansion blog does a new post, but today’s post, on the influence of the Addams Family TV show on Mansion co-designer Mark Davis? ::Chef’s Kiss::

https://longforgottenhauntedmansion.blogspot.com/2020/02/the-addams-family-and-marc-davis.html

It’s clear that Davis was using Addams’s comics as reference, but, as Long Forgotten shows, the Davis sketches and concepts are straight up lifted from the TV show: “Amateurs plagiarize, artists steal.”

Some of these lifts are indisputable.

“Finally, it’s possible that Davis took a further cue from the insanely long sweater Morticia is knitting in ‘Fester’s Punctured Romance’ (Oct 2, 1964), but in this case I wouldn’t insist upon it.”

Likewise, from the TV show, “Bruno” the white bear rug that periodically bites people was obviously the inspiration for this Davis sketch for the Mansion. Long Forgotten is less certain about “Ophelia,” but I think it’s pretty clear where Davis was getting his ideas from here.

Davis was an unabashed plunderer and we are all better for it! “We’ve seen many other examples of Marc Davis taking ideas from here, there, and anywhere he could find them, but not many other examples of multiple inspiration from a single source.”

ICANN should demand to see the secret financial docs in the .ORG selloff (permalink)

ISOC — the nonprofit set up to oversee the .ORG registry — decided to sell off this asset (which they were given for free, along with $5M to cover setup expenses) to a mysterious private equity fund called Ethos Capital.

Some of Ethos’s backers are known (Republican billionaire families like the Romneys and the Perots) but much of its financing remains in the shadows. We do know that ICANN employees who help tee up the sale now work for Ethos, in a corrupt bit of self-dealing.

The deal was quietly announced and looked like a lock, but then public interest groups rose up to demand an explanation. Not only could Ethos expose nonprofits to unlimited rate-hikes (thanks to ICANN’s changes to its rules), they could do much, much worse.

If a .ORG registrant dropped its domain, Ethos could sell access to misdirected emails and domain lookups – so if you watchdog private equity funds and get destroyed by vexation litigation, Ethos could sell your bouncing email to the billionaires who crushed you.

More simply, Ethos could sell the kind of censorship-as-a-service it currently sells through its other registry, Donuts, which charges “processing fees” to corrupt governments and bullying corporations who want to censor the web by claiming libel or copyright infringement.

Ethos offered ISOC $1.135b for the sale, but $360m of that will come from a loan that .ORG will have to pay back, a millstone around its neck, dragging it down. Debt-loading healthy business as a means of bleeding them dry is a tried-and-true PE tactic – it’s what did in Toys R Us, Sears, and many other firms. The PE barons get a fortune, everyone else gets screwed.

The interest on .ORG’s loan will suck up $24m/year — TWO THIRDS of the free money that .ORG generates. .ORG is a crazily profitable nonprofit – it charges dollars to provide a service that costs fractional pennies, after all. In response to getting slapped around by some Members of Congress, the Pennsylvania AG, and millions of netizens, Ethos has made a promise to limit prices increases…for a while. And they say that they’ll be kept honest by the nonbinding recommendations of an “advisory council” whose members Ethos will appoint and who will serve at Ethos’s pleasure.

In a letter to ICANN, EFF and Americans for Financial Reform have called for transparency on the financing behind the sale: “hidden costs, loan servicing fees, and inducements to insiders.”

https://www.eff.org/press/releases/eff-seeks-disclosure-secret-financing-details-behind-11-billion-org-sale-asks-ftc

Wells Fargo will pay $3b for 2 million acts of fraud (permalink)

Wells Fargo stole from at least two million of its customers, pressuring its low-level employees to open fake accounts in their names, firing employees who refused (refuseniks were also added to industry-wide blacklists created to track crooked bankers). These fake accounts ran up fees for bank customers, including penalties, etc. In some cases, the damage to the victims’ credit ratings was so severe that they were turned down for jobs, unable to get house loans or leases, etc.

The execs who oversaw these frauds had plenty of red flags, including their own board members asking why the fuck their spouses had been sent mysterious Wells Fargo credit cards they’d never signed up for. Though these execs paid fines, they got to keep MILLIONS from this fraud (which was only one of dozens of grifts Wells Fargo engaged in this century, including stealing from small businesses, homeowners, military personnel, car borrowers, etc). Some of them may never work in banking again, but they’re all millionaires for life.

Now, Wells Fargo has settled with the DoJ for $3b, admitting wrongdoing and submitting to several years of oversight. That’s a good start, but it’s a bad finish.

https://www.bbc.com/news/business-51594117

The largest bank in America was, for DECADES, a criminal enterprise, preying on Americans of every description. It should no longer exist. It should be broken into constituent pieces, under new management. There would be enormous collateral damage from this (just as the family of a murderer suffers when he is made to face the consequences of his crimes). But what about the collateral damage to everyone who is savaged by a similarly criminal bank in the future, emboldened by Wells Fargo’s impunity?

Wells Fargo is paying a fine, but will have NO criminal charges filed against it.

https://newsroom.wf.com/press-release/corporate-and-financial/wells-fargo-reaches-settlements-resolve-outstanding-doj-and

If you or I stole from TWO MILLION people, we would not be permitted to pay a fine and walk away.

“I’ll believe corporations are people when the government gives one the death penalty.”

This day in history (permalink)

#15yrsago: Kottke goes full-time https://kottke.org/05/02/kottke-micropatron

#15yrsago: New Zealand’s regulator publishes occupational safety guide for sex workers: https://web.archive.org/web/20050909001954/http://www.osh.dol.govt.nz/order/catalogue/pdf/sexindustry.pdf

#10yrsago: Principal who spied on child through webcam mistook a Mike n Ike candy for drugs: https://reason.com/2010/02/20/lower-pervian-school-district/

#10yrsago: School where principal spied on students through their webcams had mandatory laptop policies, treated jailbreaking as an expellable offense https://web.archive.org/web/20100726204521/https://strydehax.blogspot.com/2010/02/spy-at-harrington-high.html

#10yrsago: Parents file lawsuit against principal who spied on students through webcams: https://abcnews.go.com/GMA/Parenting/pennsylvania-school-webcam-students-spying/story?id=9905488

#1yrago: Cybermercenary firm with ties to the UAE want the capability to break Firefox encryption https://www.eff.org/deeplinks/2019/02/cyber-mercenary-groups-shouldnt-be-trusted-your-browser-or-anywhere-else

#1yrago: Fraudulent anti-Net Neutrality comments to the FCC traced back to elite DC lobbying firm https://gizmodo.com/how-an-investigation-of-fake-fcc-comments-snared-a-prom-1832788658

Colophon (permalink)

Today’s top sources: Naked Capitalism (https://nakedcapitalism.com/).

Hugo nominators! My story “Unauthorized Bread” is eligible in the Novella category and you can read it free on Ars Technica: https://arstechnica.com/gaming/2020/01/unauthorized-bread-a-near-future-tale-of-refugees-and-sinister-iot-appliances/

Upcoming appearances:

The Future of the Future: The Ethics and Implications of AI, UC Irvine, Feb 22: https://www.humanities.uci.edu/SOH/calendar/event_details.php?eid=8263

Canada Reads Kelowna: March 5, 6PM, Kelowna Library, 1380 Ellis Street, with CBC’s Sarah Penton https://www.eventbrite.ca/e/cbc-radio-presents-in-conversation-with-cory-doctorow-tickets-96154415445

Currently writing: I just finished a short story, “The Canadian Miracle,” for MIT Tech Review. It’s a story set in the world of my next novel, “The Lost Cause,” a post-GND novel about truth and reconciliation. I’m getting geared up to start work on the novel now, though the timing is going to depend on another pending commission (I’ve been solicited by an NGO) to write a short story set in the world’s prehistory.

Currently reading: I finished Andrea Bernstein’s “American Oligarchs” this week; it’s a magnificent history of the Kushner and Trump families, showing how they cheated, stole and lied their way into power. I’m getting really into Anna Weiner’s memoir about tech, “Uncanny Valley.” I just loaded Matt Stoller’s “Goliath” onto my underwater MP3 player and I’m listening to it as I swim laps.

Latest podcast: Persuasion, Adaptation, and the Arms Race for Your Attention: https://craphound.com/podcast/2020/02/10/persuasion-adaptation-and-the-arms-race-for-your-attention/

Upcoming books: “Poesy the Monster Slayer” (Jul 2020), a picture book about monsters, bedtime, gender, and kicking ass. Pre-order here: https://us.macmillan.com/books/9781626723627?utm_source=socialmedia&utm_medium=socialpost&utm_term=na-poesycorypreorder&utm_content=na-preorder-buynow&utm_campaign=9781626723627

(we’re having a launch for it in Burbank on July 11 at Dark Delicacies and you can get me AND Poesy to sign it and Dark Del will ship it to the monster kids in your life in time for the release date).

“Attack Surface”: The third Little Brother book, Oct 20, 2020.

“Little Brother/Homeland”: A reissue omnibus edition with a very special, s00per s33kr1t intro.

[agata-parsons]

The type of criminologist I think I’m becoming (Reflective practice)

When i reflect back on the theories i have learned in criminology, I think I am becoming a left-wing criminologist who believes in the right wing crime reduction tactics. I believe Capitalism as an economic system is criminogenic as Marxist Criminologist Gordon argued because I think it is clear that the nature of capitalism does promote crime because we are all exposed to the same material wants and desires and the truth is some people cannot afford material possessions but still want them so might try and get them illegally. And I do agree with Left realists that Poverty and marginalisation does lead people into criminal activity, especially younger people, poorer people and ethnic minorities who are more likely to be poor. Therefore, the government (I now know you call them The State) Should do more to offer marginalised groups greater opportunities to earn money legitimately through education and training opportunities. Which means I do believe governments have a duty to address the social and structural problems that lead people into criminality. However, I also believe that being tough on crime, as Right Realists suggests is important in society because it makes people feel safe and gives people a sense of justice when someone is punished for committing crime. Zero tolerance does work because it has been shown to reduce crime significantly. I also believe in visible policing. Seeing the police in communities will make people feel safe. I have also learned that generally in British society there is not much respect for the police. So visible policing in communities and crime reduction would make people feel more confident in the ability of the police to keep them safe.  It’s clear that as a criminologist I believe the government (the State) should use resources to remove the social causes of crime but at the same time put resources into reducing crime, even if it requires a tougher approach to policing communities. I would never have thought this deeply about crime without having to reflect upon what the theories argue and how i feel about their arguments.

[adofom1]

Rejecting and Ejecting the Poor: The Victimization and Criminalization of Poor Black People in the Most "Radical" City on the Planet

Project Eject is More Than What Meets the Ear

On a cold, gray and dreary day in Jackson, Mike Hurst, the man appointed U.S. Attorney for the Southern District of Mississippi by the Trump administration, stood in front of the United States courthouse flanked by various law enforcement agencies, politicians and community "leaders" to announce a new crime prevention initiative called Project Eject.

In his remarks to the media, Hurst claimed to "...want to empower Jackson and its citizens, expel crime from our communities, and work together to make our Capital City safe for everyone."  We should all be aware that the implications of Project Eject are  much deeper and more sinister and can and should be counted as part of a  long line of legalized  victimization of poor Black people in Mississippi.

A Critical Analysis of Project Eject and The Impact It will Have on Poor Black People

Project Eject is a racially bigoted and elitist program that gives expression to Donald Trump's and U.S. Attorney General Jefferson Sessions' national tough on crime agenda.  It is harsh, punitive and extremely short sighted. It is designed to criminalize poor Black people and other social forces in Jackson that the Trump administration has deemed a threat to its hegemony.  Project Eject will begin the process of ethnically cleansing Jackson of poor Black people so that capital and capitalists can operate more comfortably in Mississippi’s  Capital City.

If capital is allowed to further entrench itself in  Jackson, poor and working class Black people will be herded out of Jackson through a number of economic and political maneuvers that have been employed in cities like Detroit, MI, Washington, D.C. and Oakland, CA to name a few.  Hurst promised that those prosecuted under Project Eject will be sent out of state to serve federal sentences without parole.  Should more capital-friendly policies like this one go unchallenged, the likelihood of people incarcerated under Project Eject being able to come home to Jackson will drop precipitously, as the communities they left will have been destroyed; priced out and pushed out to make room for those deemed more desirable by capital and capitalists.  .

The Lumumba administration has already set the stage for the implementation of this brand of policies by declaring Jackson “open for business” and “business friendly”. .  Mayor Lumumba's has stated repeatedly n that he wants people (read: corporations because the law views corporations as people)  to come to Jackson to make a lot of money and become rich. These overtures to capital and capitalist development will make the  ethnic cleansing of poor Black people from Jackson inevitable.  Despite the Mayor’s stipulation that these corporations must invest back into the people of Jackson to do business here, capital cannot and will not respect this request. That is simply not how capitalism works.  Capitalist corporations exploit people. They do not invest in them. It must be understood that whatever "investment" that might be interpreted as going into residents is really an investment into their bottom line.

Project Eject will sever those convicted from the  support systems that are proven to increase the likelihood of successful rehabilitation and reentry. Furthermore, the forced relocation of those incarcerated will place a tremendous  economic, psychological and emotional burden on poor and working class black families, many of whom will undoubtedly want to make attempts to visit and support their loved ones who are being housed in prisons that are hundreds of miles away from Mississippi.

The supporters of Project Eject are sending a message of disdain for poor and working class Black people in the city of Jackson while disguising it with a disingenuous desire to help the city of Jackson with what they view as the problem of crime and violence. They are, in effect, saying that poor Black people  in Jackson are irredeemable and  should be discarded from the city like yesterday's trash. This line of thinking negates  the humanity of people charged and convicted of crimes and looks to brand them as  sub-human and worthy of inhumane treatment.

An Emphasis on Effects While Ignoring Causes

The narrative around Project Eject is that crime and violence in Jackson is out of control and that criminals must be brought to heel by whatever legal or extralegal means possible. Tough on crime proponents love  to point out effects, but if we are serious about ending crime and violence in the city of Jackson and in Mississippi, we must also investigate the causes of the anti-social behaviors that we see and the systems and individuals that are at the root of them.

State Violence and Criminality Begets Community Violence and Criminality

Poor Black people who engage in antisocial and criminal behavior are the victims of unjust and evil social, political and economic orders. Every time we see a homeless person, families living in abject poverty, human beings being caged like animals, or a mentally ill person walking down Capitol Street eating out of trash cans, we should be reminded of the type of violence that is being heaped upon poor people and Black people everyday in this city. We should be mindful of how this descending violence coming down on the people from the highest echelons of this society fuels the lateral violence we see in our communities.

The government on the federal, state or local level do not want to deal with this reality. Because to talk about the reality of how the violence that is perpetuated against poor and Black people begets the violence that we see in our communities would call into question the way the economic, political and social systems are failing people. More people would be forced to interrogate and ultimately see the high levels of exploitation seen in this capitalist economic system as incompatible with a just and humane society.

Deny, Cover Up, and Eject

It is easy to condemn individuals and throw them away by labeling them  as deviant, violent aberrations. It is easy for the State to deny the central role it plays and has always played in fomenting and maintaining a certain homeostasis of crime, violence and dysfunction. Upholding this false narrative ensures that poor and working class Black people can not sustain long term resistance to our oppression. If we allow those in power to do this, we lend legitimacy to this story  and we allow the State to cover up the vast amount crimes it has and continues to perpetuate against poor and working class Black people. To allow law enforcement to eject poor Black people from Jackson is allowing them to bury the evidence of this state's civil and human rights abuses against Black people.

The Current System Produces Violence and Criminality

The truth of the matter is that  this society produces, then profits from violence and criminality. As evidence, the United States has over 2 million people, more than any other country in the world, who are currently  locked in cages. Most of these people are locked away for crimes of violence. We have to come to grips with the reality that violence and criminality is what this society produces because this is what this country was founded upon.

The perpetuation of violence and crime does not develop in a social vacuum and contrary to what many may want to believe, there is no such thing as a criminal or violence gene that predisposes certain people to being more violent and criminal than others. Criminality and violence develops within a larger context.

The larger social and cultural context of America is violent. American culture celebrates dominance, violence, and the total annihilation of adversaries in popular culture, sports and the propaganda of the U.S. Military industrial complex.

Black people have been subjected to untold amounts of physical violence, surveillance and economic reprisals because we have always been viewed as a threat to the established hegemonic order of the United States. Violence  is how this country maintains its stature and power in the world. Violence is how it exacts control over its subjects. This country is criminogenic and cannot and would not exist without violence. Therefore, it is hypocritical for the State to act surprised that the people who they have violently oppressed in perpetuity would commit acts of violence among themselves and others.

Instead of talking about how the various forms of violence perpetrated against poor and Black people in this country and specifically in Mississippi begets the violence we see on an interpersonal level in our communities, we have federal, county and city officials who want to lay the blame at the feet of people who have suffered under the extreme oppression and violence of the social, economic and political order they have been forced to exist under.

Black people have been rendered disposable by a perpetually inadequately funded and failed education system, an economy that has no use for us outside of slave labor in public and private prisons, and systematic and unrelenting racial oppression. It is not surprising that many poor Black people engage in violence and other antisocial behaviors. In fact, it is surprising that in light of the trauma that Black people have been subjected to, that more Black people don't engage in these types of behavior.

Project Eject Continues Ethnic Cleansing in Mississippi

From the nineteen teens until the early 1970s millions of Black people left the south for northern urban cities. The dominant historical narrative is that Black people left their homes, familiarity and families to find greater economic opportunities in the factories and steel and textiles mills of the north. To some degree this is true, but not all Black people left the only homes they had ever known of their own volition. In many instances, Black people were forcibly removed from southern cities and towns in Mississippi. Project Eject plans to continue this type of forcible removal.

Historically, Black people have also been run out of Mississippi through outright violence, terroristic threats, land theft and economic exploitation. This was not voluntary migration. This was forced migration and ethnic cleansing carried out in the southern United States.

One of the reasons that some Black people were run out of places like Mississippi is because white people created a narrative that they were lazy, criminal vagrants who did not want to work. The reality was that poor Black people who had seen their parents and great grandparents economically exploited and subjected to slavery by another name did not want to continue to allow their labor to be exploited by the racist white families that had previously owned their fore parents. That is why it was quite disturbing to hear U.S. Attorney Hurst refer to some people as nothing more than criminals that he does not want to be in the city. Criminal is a code word for poor Black people who do not fit into the plans that the ruling class has for the Capital city.Since Black people can no longer  be outright killed or run out of town without some outcry, Project Eject is a legal way of ethnically cleansing this undesirable class of people from the population of Jackson to make way for people who they deem more valuable to the future of Jackson.

Both individuals like Hurst and many from the Black political class  in Jackson are unwilling to attempt to solve the problems that produce poverty, crime and violence so shipping them off is an easy fix. By the time they spend a decade or more in prison, they will not be able to come back to Jackson because the likelihood that there families will be priced out of their homes and moved to the outside of Jackson are great.

Black Collaborators

The saddest, but not surprising part of the Project Eject press conference was the sea of Black faces surrounding Hurst as he made the announcement that he planned to eject Black people from the city. As a human defense lawyer, I see the people who Hurst's message was directed toward on a daily basis. Most of them are young Black men who have been either miseducated or not educated at all. These young men could be the children or grandchildren of the Black elected officials  and community "leaders" who stood with Hurst as he laid out his plan to Eject them from the city.

The sad reality is that in addition to being failed by the dominant society, the Black political class and the Black community at large has failed them too. As it stands, there are no viable options or opportunities for poor Black youth in the city of Jackson. On the one hand, this vacuum exists because we have not invested enough in our own children in terms of building the necessary independent economic, political or social institutions necessary to speak to the unique needs of Black children and young adults and prepare them for a racist and hostile society. On the other hand, this vacuum exists because Black elected officials year after year have merely talked about what Black youth need instead of using to the city's resources to meet those needs.

Real Solutions 

For the misguided, Project Eject represents the opportunity for a respite from crime and violence. However, the problem of crime and violence cannot be solved through over policing and tough on crime policies.

Crime in Jackson must be treated as a public health crisis. People must be provided mental health services, substance abuse treatment and economic democracy through control of the means of production. Ultimately, if we are serious about bringing crime and violence to a minimum in Jackson, we must prepare ourselves to dismantle the current political, economic and social order. It is this order that keeps poor people generally and poor Black people specifically going through a cycle of crime and violence as both perpetrators and victims. This cyclical process benefits the ruling elite's agenda to have poor Black people trapped inside of the prison industrial complex and locked outside of the city.

[douglasacogan]

Seeking fresh perspectives on reentry and recidivism challenges

Brent Orrell, a fellow at the American Enterprise Institute, has this notable new Hill commentary under the headline "Rethinking pathways to reentry." I recommend the piece in full, and here are excerpts:

[A] declining prison population necessarily means that thousands of individuals are taking the arduous road back from prison to their communities.  For many, this road ends up looking more like a roundabout than a highway, with more than 80 percent being arrested again less than a decade after release. Much has been tried to reduce recidivism but little has been shown to have significant positive effects.  Over the past year, the American Enterprise Institute convened a group of scholars to delve into this problem, bringing together more than two dozen program evaluators, criminologists, and researchers to discuss what works and what does not in helping formerly incarcerated individuals successfully leave prison and reintegrate back into their communities.

Our research report sought to distill some insights into the state of research and practice in reentry with the goal of identifying fresh perspectives for policymakers, researchers, and practitioners working in the field. Many of these ideas will be more fully developed as part of a volume to be published in early 2020.  While the working group did not seek to develop a consensus, it did identify several critical areas of focus for advancing the work of the corrections and reentry fields.

First, it is crucial that programs operating within correctional systems and at the community level become more rigorous in their program designs. Correctional systems and reentry programs at the community level need clearly defined theories of change that lay out a strategic conceptual framework, detailed steps for reaching the desired outcomes, and metrics for determining success.  In criminal justice and reentry, causality is hard to establish and measure, and such theories would help.

Second, researchers need to focus more time and energy on program implementation. Many correctional institutions and local criminal justice systems are either unequipped or uninformed or both about how to put a particular program model into practice. The result is a mashup of partially implemented programs that bear little resemblance to the models they are based on....

The report also highlights the importance of accurately gauging the needs of incarcerated individuals and their criminogenic risk factors.  The best research shows that tailored services produce better outcomes than “one size fits all” programs that run the risk of providing individuals either too little or too much help.  To effectively align services with individual needs, correctional staff must understand criminogenic risk factors and align services to mitigate them.  These assessments might be expensive and time consuming, but the benefits outweigh the costs.

Finally, new research indicates that people may stop committing crimes suddenly rather than desist on a slow age related curve, a model that has governed our criminal justice expectations for decades. There is evidence that even those who seem most likely to recidivate make choices to become crime free, quickly reducing or eliminating the likelihood of rearrest.  While there is uncertainty about how to produce this shift, the research suggests that reentry programs should be oriented to support those who have made or are close to making the transition.

All levels of government, along with many private and philanthropic organizations, have invested billions of dollars in trying to solve the recidivism puzzle.  To date, the effect has been disappointing.  This report and the volume that will be published next year are an effort to plot multiple pathways toward possible solutions.  Some of these pathways focus on making existing approaches more effective while others seek to innovate entirely new solutions.  The bottom line is that the status quo is neither sufficient nor sustainable. For the sake of the thousands of men and women who return home from prison each week and the families and communities who receive them, we can and must do better.

The full American Enterprise Institute report discussed in this commentary is available at this link under the title "Rethinking reentry: An AEI working group summary."

from RSSMix.com Mix ID 8247011 https://sentencing.typepad.com/sentencing_law_and_policy/2019/10/seeking-fresh-perspectives-on-reentry-and-recidivism-challenges.html via http://www.rssmix.com/

[lodelss]

Hope Reese | Longreads | May 2019 | 16 minutes (4,345 words)

In our current criminal justice system, there is one person who has the power to determine someone’s fate: the American prosecutor. While other players are important — police officers, judges, jury — the most essential link in the system is the prosecutor, who is critical in determining charges, setting bail, and negotiating plea bargains. And whose influence often falls under the radar.

Journalist Emily Bazelon’s new book, Charged, The New Movement to Transform American Prosecution and End Mass Incarceration, brings to light some of the invisible consequences of our current judicial system — one in which in which prosecutors have “breathtaking power” that she argues is out of balance.

In Charged, a deeply-reported work of narrative nonfiction, Bazelon tells the parallel stories of Kevin, charged with possession of a weapon in Brooklyn, New York, and Noura, who was charged with killing her mother in Memphis, Tennessee, to illustrate the immense authority that prosecutors currently hold, how deeply consequential their decisions are for defendants, and how different approaches to prosecution yield different outcomes. Between these stories, she weaves in the recent push for prosecutorial reform, which gained momentum in the 2018 local midterm elections, and the movement away from mass incarceration.

I spoke to Bazelon — currently a staff writer for The New York Times Magazine and cohost of the Slate Political Gabfest — on the phone, discussing problems with mandatory sentencing and what the public should know in order to make informed decisions when voting for their local D.A., among other subjects. This interview has been edited for length and clarity.

*

Hope Reese: In the 80s and 90s, prosecutors began to hold much greater power in the judicial system than they previously had. You write that in the 30 years between then and now, Americans “first embraced punishment levels lower than Sweden’s, then built a justice system more punitive than Russia’s.” How did such a drastic increase in power occur?

Emily Bazelon: In the late ’70s, crime starts to go up. Even before that you have a turn by politicians — starting with Barry Goldwater, then Richard Nixon, and then later Ronald Reagan — toward a very law-and-order fear-mongering platform, arguing that people who commit crimes need to be locked up for a long time. It’s pretty racialized rhetoric. The combination of fear actually rising and then the politicians capitalizing on it leads to much stricter sentencing laws. Part of this is just increasing the penalties, but part of it is mandatory minimum sentences.

The idea of this mandatory minimum sentence is that you’re going to take discretion out of the system by tying the hands of judges, right? Like if they have to give a certain sentence, then you won’t have to worry about a “softie” judge. The problem is, you can’t really take discretion out of the criminal justice system. It has to continue to live somewhere, and mandatory minimum sentences, even though no one really described it this way while it was happening, give discretion to prosecutors — because suddenly the charge determines the punishment.

And so the charging shifts power to prosecutors, and in addition plea bargaining, in a couple of ways. One way is that once you have mandatory sentences, it’s easier for prosecutors to force plea bargains, because they have so much more leverage. And another thing that happened basically simultaneously is that the criminal codes expand, so there are just more things to get charged with, and more choices of charges, so prosecutors can stack charges. And that also increases the penalty and increases leverage and basically makes the trial disappear in American law. You end up with what we have now, which is like a 2 percent trial rate in a lot of state court systems.

Do mandatory sentences lead to crime reduction?

Yeah, a little bit. I mean, there’s a lot of debate over what leads violent crime to fall in the United States, really more in the late ’90s through the 2000s. The comprehensive big literature review by the National Academy of Sciences finds that increased sentences have what they call a best to modest effect on reducing crime. So in other words, you take people off the streets. You lock those people up. Those particular people are not going to be committing crimes outside of prison, and there’ll be some other people who are deterred, but I think the question that criminologists and really lots of people increasingly ask is: Is that modest impact worth the human cost?

Especially because there’s new studies showing that jail and prison are what’s called criminogenic. That’s like carcinogenic. Like, they actually cause crime in the medium to longer term. The idea is yeah, you lock people up in the shorter term, but almost everyone gets out — and when they get out, they tend to be more desperate, have a harder time getting a job, finding housing, and those things all correlate with being more likely to commit crimes afterward. I think at this point, most of these people would agree that American sentences are way out of proportion to what we need for deterrence, and in fact, are having a negative effect.

I could only find two instances in which two different prosecutors went to jail for a few days each, like in the whole history of prosecutorial misconduct.

You write about how prosecutor culture, which values confidence and speed over caution and delay, can be a problem for giving people fair chance under the law. How we could start to change that?

Yeah. So this has to do with the culture of prosecutors’ offices, how we train prosecutors, and what we tell them we value. On paper they have a dual responsibility. They’re supposed to win convictions and also be ministers of justice, but in practice a lot of prosecutors’ offices reward prosecutors for winning big trials and getting long sentences. As long as you have that kind of reward system in place, you’re valuing stricter punishment over second chances.

To change that you have to start recognizing people who are declining to charge someone, or for dropping the charges if the case is weak. Or for putting more people into alternatives to our incarceration program. It’s really changed how we define the job and how we define success of the job.

You describe the first steps of being charged, and how it’s often tricky with circumstantial evidence, illegal evidence-gathering, or police who aren’t issuing Miranda rights. You call this part of the “rotten foundation” that cases are often built on. How is this happening?

Well I think that there are a few things going on. One is just the problem of how much evidence prosecutors actually have to put forward. If you never have a trial, then your case isn’t going to be truly tested, and so you’re going to be able to assert a lot of things that may or may not be true without really being accountable for those facts. This is something that, to some degree, varies state-by-state, because some states have enacted better laws for sharing evidence early in a case with the defense, long before a trial. But it’s still an ongoing issue, and I think what you’re really seeing here is how the decline of the trial intersects with the lack of accountability for prosecutors.

Then I think the other kind of related issue I was writing about with Noura’s case is this problem of what people call tunnel vision or confirmation bias. Once the police have arrested someone, there’s an incentive to think that that’s the person who did it. It’s sort of normal human psychology to emphasize facts that confirm your pre-existing beliefs as opposed to challenging them.

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How much is decided at the whim or discretion of prosecutors when it comes to determining the charge for a crime?

Well, I mean, prosecutors work closely with the police, so it’s not like they’re doing this themselves. But prosecutors are the people who bring charges. That’s their job.

So they bring charges — but they are also guaranteed immunity from repercussions, which is not the case with police. How did that happen, and what does absolute immunity actually mean in practice?

Absolute immunity comes from a Supreme Court decision called Imbler vs. Pachtman. Absolute immunity is unusual for government officials. The cops, for example, have qualified immunity. Absolute immunity means that if you can argue something you did, however bad, was in the course of doing your job, you cannot personally be sued for it. It’s like a very blanket protection, and so it has meant that it’s virtually impossible to sue prosecutors personally.

And then there’s sort of some problems compounding that rule. The Supreme Court in a later case called Connick vs. Thompson made it very difficult to sue a district attorney’s office, so then you have the whole office being shielded, absent a pattern or practice of misconduct, and then they made it really hard to prove the pattern of misconduct. And when the Supreme Court decided Imbler, they kind of reassuringly said, “Oh, don’t worry. A prosecutor who commits misconduct will be prosecuted him or herself.” But that doesn’t really happen. I mean, I could only find two instances in which two different prosecutors went to jail for a few days each, like in the whole history of prosecutorial misconduct.

And then the last piece of this is that the Supreme Court also said, “Oh don’t worry, because the bar, the legal profession, will discipline prosecutors.” But that is also very unusual, and I tell the story of a kind of failed disciplinary effort in Tennessee that I think shows the challenges for accountability from the bar.

We hear about racial profiling from police, but in your reporting, have you come across profiling when it comes to sentencing or being charged with crimes?

Well, there’s definitely racial disparity built into charging and plea bargaining offenses, and studies have shown that at every step along the way, African American defendants get worse deals for similar conduct. So yes.

Right. But, is it something we’re not quite as aware of?

Yeah. I think in general, the police, we all see the police in the streets. They wear uniforms. Judges also wear a kind of uniform. Right? They wear a robe. They’re very visible icons of justice, but prosecutors are just lawyers wearing suits and I think the things they do tend to be more hidden and more veiled in the kind of density and abstract nature of law. It’s complicated to understand all the legal interpreting of what they’re up to. So, I think that they’ve gone relatively unnoticed in the picture of how American justice has changed.

You write about how important bail can be, that it can shape the outcome of a criminal case. But we currently have a private bail industry that you argue is in need of reform. Can you explain what’s wrong?

The United States and the Philippines are the only two countries in the world that allow for-profit cash bail — so we’re outliers. But our whole system of what happens to you after you’re charged, but before you’re convicted, depends on paying bail in most states in the country. So, you get charged with a crime, you go before a judge. The judge can let you out, called getting released on your own recognizance, or they can set bail in some amount. For many crimes in many places, judges set bail.

If you can’t pay, then you’re being detained because you don’t have enough money. To me, when I think about it that way, it starts to seem very strange. That it’s really money rather than public safety or the risk of failing to appear in court that’s driving the system. Even if you set high bail because of public safety or a failure to appear, it is still true that people who are wealthy are more likely to get out than people who don’t have money.

Right. But some states, like Kentucky, have outlawed cash bail. And there’s actually evidence that people will generally return to court even if they haven’t paid the bail. Right?

Exactly. Kentucky and Washington, D.C., especially have had systems for decades where there’s a small fraction of people who are held in jail because they’re deemed to be a public safety threat, and then everybody else gets out and almost all of those people come back to court without putting any money down — which really shows us that our for-profit cash bail system is not necessary.

Study after study shows that people who are being held in jail, pre-trial, because they can’t afford bail, are more likely to plead guilty.

How is bail part of a kind of domino effect that can start to impact the way a whole case might go?

Study after study shows that people who are being held in jail, pre-trial, because they can’t afford bail, are more likely to plead guilty. And when you think about it, it’s pretty logical. If you want to go home, you have an incentive to just sign the paper. Okay, it’s a lower offense. I’m getting a deal from the prosecutor. Maybe I did it. Maybe I didn’t. I just want to go home.

It really zaps people’s willingness or desire or endurance to fight charges. If you think of, in a more simple sense, the purpose of bail and holding people pre-trial, it’s really to keep the wheels of the system turning, because plea bargains — and especially quick plea bargains — save everybody a lot of time and work. Meaning the lawyers and the judges.

And the bail companies also sometimes do monitoring and surveillance as well, right?

Yeah. We’re putting ankle bracelets on people when they’re out pre-trial to make sure they come back. In some states, they’re monitored by the court system, but it is true. There are privatized companies that are also providing pre-trial services. Then you have a way in which we’re turning another aspect of the system into a for-profit enterprise.

You write about the impetus to “keep guns off the street,” which I think many people would get on board with, in order to reduce crime and mass shootings. But do you see an unintended consequence of this goal?

Yeah. I do. I think that when liberals support gun control, we usually think of the importance of like tightening the loopholes for who can buy a gun and requiring permits. There are lots of reasons to support gun permitting, and evidence that it can reduce gun violence. But I don’t think we think enough about the other side of the coin — which is when someone doesn’t have a permit, then what happens?

In most states, or in many states, we fine those people. But, there are a few states like New York that have these very harsh prison sentences for possessing a gun even if you don’t have a criminal record. Even if you didn’t threaten anyone with that gun. First of all, you can see all the racial disparity it leads to. These are laws that are enforced in poor black neighborhoods. Predominantly black communities definitely want public safety and they want good policing and they don’t want guns, but they also want things like social services that we’ve shown prevent crime.

But, instead, we put people in prison. There’s this useful framework that comes from my friend James Foreman, who’s a Yale Law Professor who talks about these predominantly black neighborhoods getting the worst of both worlds. Both having the threat from the guns and then also having the solution be prison, as opposed to something that changes the circumstances of people’s lives and gives them a reason to not have guns that is different from being incarcerated.

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And jail before trial is associated with more future risk of crime. Not less. Right?

Exactly. So, again, in New York, you send young black men to prison for two or three years for owning a gun. They’re all gonna come back after that time and they’re gonna be less employable. They’re gonna have problems getting back into public housing if that’s where they live. It’s just, in my view, a destructive way of dealing with the issue. It’s a real issue, but what’s the response that really makes sense?

So, you talked earlier about how few cases actually make it to trial — but isn’t there a lot of bias in trials as well? In witness testimony and unreliability of memory? Do you think there would be better outcomes if there were more trials instead of plea bargains?

Well, I think there’s two different things going on there. You’re right about eyewitness testimony and the reasons we have to doubt that sometimes and to really make sure that we have these procedures in place that don’t lead people to make mistakes in identification. Making sure that lineups are really blind and that the police don’t take their hand when they show someone a bunch of photoshoots about who they think the suspect is. It is totally true we should regard against all that. At the same time, I think it would be better if we had more trials because that’s when the government really gets tested. If you never have any trials, then the cops and the prosecutors can get away with sloppiness or even breaking the law. Violating people’s constitutional rights — and they never get called on it.

For example, I’m working on a podcast right now that’s related to my book. One of the people in the podcast was arrested and there was a stop and frisk on video. So, I can see the cops stop him and the police report says that Turari’s gun was visible in his waistband. But when you look at the videos, Turari was wearing this baggy hoodie. There’s no way the police saw the gun. You can’t see the gun. So, maybe they had another reason to stop him. It’s possible someone tipped them off and told that he had a gun, but you’d want to get that tested at trial. The problem is, Turari was facing such a long prison sentence that rolling the dice on going to trial just becomes too scary. So, you take the plea deal.

Let’s switch gears and talk about the reform movement. You outlined two different approaches to reform in your book. Gonzales, who’s the consensus-builder and Krasner, the “barn burner.” Can you talk about how you see these approaches?

I don’t really think one is better than the other, because we just don’t know enough. They’ve neither of them been in office very long and in some cities, the barn burner model is gonna be necessary. You’re gonna come into and office where prosecutors who work there are hostile to the reformer who comes in and it’s hostile to the reformer who comes in, like a new CEO. Come into a company, you don’t have to keep everybody there. They’re not entitled to a lifetime sinecure, and if they’re not down with what you want to do, it makes sense to fire people. On the other hand, if you don’t need to do that, you have people who are supporting your vision, then that can work.

In Philadelphia, Larry Krasner came into a pretty hostile office, and in Brooklyn Eric Gonzales came into an office where, first of all, he was a career prosecutor so he knew everyone. And there was much more of a tradition of discretion with plea bargaining and trying to work with defense counsel, much more than in Philadelphia. Gonzales needed a survey and most of his lawyers said yeah, we support your vision, and so he has been able to make fewer changes and still start to get done what he wants to get done.

In a few years, when we look at these prosecutors’ records and use new yardsticks like reducing incarceration, and reducing racial disparity, and increasing diversion, or just having fewer cases, then we’ll be able to start drawing some conclusions about what’s more effective.

When people see the law as legitimate, they’re much more likely to abide by it and to help do things like solve crimes and be witness to these cases.

D.A.s have traditionally run unopposed, and incumbents have often won in the past. What’s changed in the last couple of years?

There were a few things. One is that there’s bipartisan support for a new kind of prosecutor, and this is partly just because this is something that becomes so costly, and this blew so far beyond necessary bounds, and I think a lot of fiscal conservatives are fed up with it.

And then, importantly, you have the Black Lives Matter movement, which starts out obviously with a main priority being police shootings of unarmed people, but then intersects with the civil rights groups, and starts to think okay, what can we really do to change the places we live in, and change the power structure? And electing the local district attorney in a city turns out to be a tangible thing that this movement can deliver to its constituents. These are local elections, you don’t need to have that many voters to change the person in the D.A.’s office. If you organize, this is a win. So you start to see that awareness leads to a lot of real grass roots, local surges.

Then the third element is the donor class. Some donors, like George Soros, have come in and really powered these local organizers by giving them money.

You write that there should be more of a balance of power between prosecution, defense, and judiciary. What would an even shift look like to you?

Well, I think there are two things. One is that state legislators could eliminate mandatory minimum sentences, and that would have a big impact in the defense, prosecutor, judge shift that we’re talking about.

And I also think prosecutors have to give up some of their own power, which is not something that people usually want to do. For example, prosecutors that share all the evidence as quickly as possible with the defense — that’s a way of trying to even the scales. A state can pass a law requiring that, and Texas has done that in the last few years. But prosecutors can also do that themselves, in their own offices.

For people who don’t know a lot about their local prosecutors, what are the important things to learn when they’re making a decision about voting?

That’s a great question. I think you want to ask which kinds of crimes does your prosecutor think area priority? Are they interested in, for example, increasing the rate of conviction for murders, which is of late 60%. Across the country we only solve 60% of the homicides. Or are they talking about being tough on people who possess marijuana, or jump the turnstile, or have a traffic violation, right? So where’s the priority in the office?

Do they think that mass incarceration is a problem? What are they interested in doing to address it? And how do they think race plays into this itself, and do they have concrete steps they want to take to try to prevent racial disparity and racism from affecting the work of their office? How do they talk about treating teenagers who have committed crimes or minor offenses, like do they believe in treating kids like kids or do they want to prosecute teenagers as adults? And another thing to ask is how they think that they can try to protect immigrants from detention or deportation by reducing charges in some cases?

Your voice comes through as an advocate for reform. Where do you stand with this balance between your journalism and advocacy?

That’s a great question. I don’t see myself as an advocate. What I mean by that is, it’s not my job to push for a particular outcome. It’s my job to report what I’m seeing, and help people make informed decisions about the kind of criminal justice system that is pragmatic and makes sense. I’m a pragmatist at heart, so my reporting always drives me, as opposed to trying to bend the facts to support some predetermined outcome.

I did end my book with 21 principles for new prosecutors because I think a lot of times books like this, it’s all about the problem and the stories are upsetting because they show the problem, and then you get to the end and you have this sense of despair. I didn’t want people to have that, especially at a moment when I actually think there’s a lot of optimism and a lot of very interesting thinking about how to change things.

So I wanted to put all of that out there to give readers a sense of exactly the question you asked. Okay, if you’re voting for a local D.A., how do you know that this person has a different, a new vision of the criminal justice system? I wanted to give people a way to answer that question. But I always see myself as a journalist and not an advocate.

How can we rethink our justice system to make it more fair?

I think that we’ve had this “tough on crime” set of assumptions for a long, long time. To counter it we need to rethink safety. Safety is always the goal, right? That everyone deserves to be safe, and communities want to be safe. The challenge is to argue and really show people that when people, and there’s evidence for this, when people see the law as legitimate, they’re much more likely to abide by it and to help do things like solve crimes and be witness to these cases.

I would argue that because our system has become so punitive, it’s lost the trust and legitimacy in the eyes of a lot of the people who are impacted by it. And if you could get it back, we would actually be safer. So showing people that safety and fairness are integral to each other, that is a really important role that these new prosecutors can play.

* * *

Hope Reese is a journalist based in Louisville, KY. Her work has been featured in The Atlantic, the Los Angeles Review of Books, the Village Voice, Vox, and other publications.

Editor: Dana Snitzky

[benrleeusa]

Questioning the use of actuarial risk assessment tools at sentencing

Erin Collins has this notable new commentary at The Crime Report under the headline "The Perils of 'Off-Label Sentencing'." I recommend the piece in full, and here are excerpts:

Current criminal justice reform efforts are risk-obsessed.  Actuarial risk assessment tools, which claim to predict the risk that an individual will commit, or be arrested for, criminal activity, dominate discussions about how to reform policing, bail, and corrections decisions.  And recently, risk-based reforms have entered a new arena: sentencing....  Actuarial sentencing has gained the support of many practitioners, academics, and prominent organizations, including the National Center for State Courts and the American Law Institute. [see Model Penal Code: Sentencing § 6B.09]

This enthusiasm is, at first blush, understandable: actuarial sentencing seems to have only promise and no peril. It allows judges to identify those who pose a low risk of recidivism and divert them from prison.  Society thus avoids the financial cost of unnecessarily incarcerating low-risk individuals.

And yet, this enthusiasm for actuarial sentencing ignores a seemingly crucial point: actuarial risk assessment tools were not developed for sentencing purposes.  In fact, the social scientists who developed the most popular risk assessment tools specified that they were not designed to determine the severity of a sentence, including whether or not to incarcerate someone.  Actuarial sentencing is, in short, an “off-label” application of actuarial risk assessment information.

As we know from the medical context, the fact that a use is “off-label” does not necessarily mean it is ill-advised or ineffective. And, indeed, many contend that actuarial sentencing is a simple matter of using data gleaned in one area of criminal justice and applying it to another.  If we know how to predict recidivism, why not use that information broadly? Isn’t this a prime example of an approach that is smart — rather than tough — on crime?

As I contend in my article, Punishing Risk, which is forthcoming in the Georgetown Law Journal this fall, the practice of actuarial sentencing is not that simple, nor is it wise. In fact, using actuarial information in this “off-label” way can cause an equally unintended consequence: it can justify more, not less, incarceration — and for reasons that undermine the fairness and integrity of our criminal justice system.

The actuarial risk assessment tools that are being integrated into sentencing decisions, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool, and the Level of Services Inventory-Revised (LSI-R), were designed to assist corrections officers with a specific task: how to administer punishment in a way that advances rehabilitation.  They are intended to be used after a judge has announced the sentence.  They are based on the Risk-Need-Responsivity principle, according to which recidivism risk is identified so that it can be reduced through programming, treatment and security classifications that are responsive to the individual’s “criminogenic needs” (recidivism risk factors that can be changed).

Sentencing judges, in contrast, do not administer punishment but rather determine how much punishment is due.  In doing so, they may use actuarial risk predictions to advance whatever punishment purpose they deem appropriate.  While they may decide to divert a low-risk individual from prison in order to increase their rehabilitative possibilities, they may also decide to sentence a high-risk individual more harshly — not because doing so will increase her prospects of rehabilitation, but because it will increase public safety....

The tools measure risk based on a range of characteristics that are anathema to a principled sentencing inquiry, such as gender, education and employment history, and family criminality. Perhaps consideration of these factors makes sense if the predictive output is used to administer punishment in a way that is culturally competent and individualized.

But in the sentencing context, it allows the judge to punish someone more harshly based on a compilation of characteristics that are inherently personal and wholly non-culpable, and often replicate racial biases that pervade other areas of the criminal justice system.  In other words, actuarial sentencing allows judges to defy the well-established tenet that we punish someone for what they did, not who they are....

Incorporating these tools into sentencing conflates recidivism risk, broadly defined, with risk to public safety. If we want to reduce our reliance on public safety, we must refine—rather than expand — the risk that counts for sentencing purposes.

Some of many prior related posts with links to articles and commentary on risk assessment tools:

"Punishing Risk"

"Principles of Risk Assessment: Sentencing and Policing" 

"Assessing Risk Assessment in Action"

"Moneyball Sentencing"

 "Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law"

"The Use of Risk Assessment at Sentencing: Implications for Research and Policy"

"In Defense of Risk-Assessment Tools" 

"Risk and Needs Assessment: Constitutional and Ethical Challenges"

"Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"

[zipgrowth]

How Teaching Using Mindfulness or Growth Mindset Can Backfire

Art Markman is an expert on what makes people tick. The psychology professor at UT Austin has also become a popular voice working to translate research from the lab into advice for a general audience. He’s co-authored popular books, including Brain Briefs Answers to the Most and Least Pressing Questions About Your Mind. He also writes a blog for Psychology Today magazine, and co-hosts a podcast through Austin’s NPR station called Two Guys on Your Head.

In his writings and podcasting, he’s tackled questions big and small, from commenting on the recent wave of mass shootings—to weighing in on why people like cat videos so much. And he’s full of surprising findings.

Take a recent blog post he wrote about mindfulness, for instance. Markman is not against meditation, and he agrees that taking steps to slow down and reflect without snap self-judgment can have benefits. But he also points out that such practices are not always universally positive. In a recent study done with prisoners, for instance, “the aspect of mindfulness associated with reserving judgment about the self actually increased criminogenic thinking significantly.” And even in a classroom setting, such practices are not helping creativity, according to research.

Markman recently talked with EdSurge about how his insights can help educators. He might just change the way you think about things like growth mindset, comprehensive testing, and encouraging students to make mistakes. The conversation has been edited and condensed for clarity. You can listen to a complete version below, or on your favorite podcast app (like iTunes or Stitcher).

EdSurge: Why do we humans seem to have so much trouble understanding ourselves? With all the advances in science, you'd think we'd have the human mind figured out a bit more.

Markman: First there’s the scientific question, shouldn't psychology be done by now? And the answer to that question is no. For one thing, psychology is a lot harder than almost any other science. I've often called cognitive science the place where Nobel laureates come to die. Somebody wins their Nobel prize in physics or chemistry and then says, "I'm gonna go fix cognitive science," and then they vanish without a trace. Because the brain is a complicated organ; it's embedded in social systems, in cultural systems, and it's constantly learning. So all of those factors make the mind and brain an extraordinarily difficult topic.

On top of that, as a science, we can't do all of the experiments we'd like to do because certain things are just unethical. You can't break people. You can split an atom; you can't split a person. You can't raise somebody in a closet so that they don't learn a language, right? So that also complicates the science.

Then there's a second half of the question, which is why is it that more people don't know more about psychology in ways that might help them to live their lives? It has to do with the fact that, when we systematized education about 120 years ago. We had to lay down a science curriculum, and the three mature sciences were biology, chemistry, and physics, so they made the cut. A lot of other sciences didn't, including psychology, which in the early 1900s barely wrested itself free of philosophy. And so we don't teach a lot of psychology.

On top of that, the structure of the brain makes it very hard for people to understand themselves well. Our motivational centers that drive a lot of our action are buried deep in the brain. They are brain structures that humans share with rats, mice and deer. All the complex reasoning and storytelling abilities that we have involve brain structures that are literally built on top of that other structure, and they don't have great access to what's going on in the motivational system. When people introspect, when they look inwards to try and understand their own behavior, they are actually telling stories about their own behavior that isn’t necessarily perfectly related to what actually drove that behavior, which is why people need to go into therapy. Because that introspection doesn't necessarily solve all your problems; sometimes you need a trained professional to help you to do it.

And so all of these factors combine to keep the brain a mystery, both to scientists and to everybody else.

One topic that you tackled recently on your blog that struck me is mindfulness. Even some colleges are trying it out as a way to help students. But you point out that research suggests mindfulness is not always positive. Could you talk a little bit about that?

As you say, mindfulness is a big trend these days, and there are a lot of great effects of mindfulness. And in particular, one of the things that mindfulness training can do is to make you more aware of some of your own thought processes and some of the emotional reactions you have to things in the world. And that is associated with better emotion regulation and greater likelihood of sticking with your long term goals. So I always like to preface this by saying I'm not making the argument that mindfulness is this a horrible thing that's being foisted on us. But I think we have to understand what it does and doesn't do. And so if you look at the research, there are a few areas where mindfulness is not helpful.

On the not helpful side is creativity. So you could ask the question, if you do a lot of mindfulness training, will you become a more creative individual? And the answer seems to be not so much; it doesn't seem to hurt, but it doesn't seem to help. What really helps you to become more creative is learning a bunch of stuff and having a wide, broad base of knowledge that you can draw from, and mindfulness isn't going to help you to get there.

You’ve written quite a bit about the concept of growth mindset. What is your take on that?

I've followed this work for a long time. Carol Dweck, who developed a lot of these ideas, she and I were colleagues together at Columbia University for a while before she went to Stanford and I came here to the University of Texas. I think there's a lot of wonderful stuff about this mindset work.

The concept is that you can think about almost any skill that you engage in as either being mostly talent-based or mostly skill-based; talent-based meaning, ‘I'm born with it,’ or skill-based meaning, ‘if I work hard enough at it, I'll get it.’ And what her work suggests is that if you adopt a growth mindset, which suggests that most things are skills, that you will often work harder in the face of adversity because you will recognize that your hard work will allow you to overcome difficulties. Whereas if you believe something is purely talent-based, then when things get difficult, you think, "Well, I guess I've reached the limits of my talent. I'm gonna give up."

And that can have important consequences with student retention?

I wrote about a study not long ago that was really interesting in which they looked at students in a low socioeconomic status school in India, and looked at providing information that would help students to adopt a growth mindset there. There were two findings there that I think should cause all of us who like this kind of work to take a step back and think about it more. And to be fair, Carol Dweck has acknowledged that this is part of her research program, so I'm not criticizing her particularly. But there were two findings of interest here: The first was that the students who were most helped by the growth mindset training were the best students already.

The second thing, though, was that for some of those students, particularly those students who the teachers acknowledged were the most conscientious students, this growth mindset training actually decreased their motivation to come to school. Giving them a growth mindset training actually increased their absentees. And the speculation in this paper was that, for some kids who grow up in poor neighborhoods, they come to school because they're good at it, and so they think there's something special about them that makes them good at this, and this is a place they can go to feel special. And when you give them growth mindset training, inadvertently what you do is to say, ‘Well, it's not really that you're special; it's that you've worked hard.’ And they're not as motivated by that as to be in a place where they were actually the special one, and so it actually undermined some of their motivation to continue to come to school.

And so what this means is that we need to really think carefully about how to take the controlled laboratory studies that we do in order to demonstrate that there's something worth continuing with, and then work hard to figure out what factors affect whether this is going to have an impact on students in ways that will help us to then launch this in a way that helps students, helps the students most in need, and doesn't undermine those students who might be succeeding on other grounds. This is no different than having laboratory studies that suggest a particular treatment might cure cancer, only to find out that it doesn't work as well when you try to use that in patients. So it's the hard work of applying research.

From all of your research and careful reading of the literature, what is your biggest piece of advice for teachers—something that might surprise them about how students learn?

What I would say is that we have a conflicting set of goals when we look at the educational system. On the one hand, we want to train independent, innovative thinkers, and then we want to do that by making sure that all of them get the same answer on the state test. And I think that one of the things we need to do is to really think about how the reward structure that is part of school influences the long-term thinking of students.

A lot of what we want to do is to give students more opportunities to do things that may not be correlated with grades, right? To give students opportunities to make mistakes and to recover from those mistakes—to give students opportunities to answer questions that nobody in the room knows the answer to, give students the opportunity to read stuff that has no bearing on whatever the lesson plan is at the moment. Because those skills in the long run are the ones that are correlated with success after school, and that to me is a real tension.

In the most recent book that you co-authored, Brain Briefs: Answers to the Most (and Least) Pressing Questions about Your Mind, one of the chapters is titled "Do Schools Teach the Way Students Learn?" What is your answer to that one?

I would say is sometimes, but often not.

One of the things that schools do is that they test on material at the end of units and then not again. And one of the things that we know about short term testing is that studying in the moment for a test that's coming up will allow you to learn the material for the test, but then your brain is basically gonna decide you don't need this information anymore if you don't encounter it again. Your brain wants to keep using information when you're forced to keep pulling it out over and over again. And so, even though students hate cumulative exams, those are the ones that actually force them to keep encountering the material repeatedly over the course of a year in order to make sure that it gets in there. So actually forcing them to keep going back to things that learned before in an explicit way is really important.

I think another part of what schools do, and this gets back to something I was saying a little bit earlier, is that schools teach mistake minimization, right? So to get good grades, you have to get the answers on each test correct, which means that the kids with the best grades, generally speaking, make the fewest mistakes. And what that teaches us is really good learning is about never making mistakes. But actually, learning is failure driven; it's when surprising things happen that you're forced to learn new things. And so it's actually the recovery from mistakes that helps people to learn best.

And so what we need to be teaching is yeah, make a mistake, but then you're responsible for fixing it and for understanding the thing you didn't understand. Getting a C is just the first step in a process of actually learning something, not the demonstration that you hadn't learned it.

We focus on technology in education, and these days there’s a lot of talk about trends like adaptive learning and flipped classrooms. How helpful do you think these types of tech innovations will be, or can a low-tech solution be more helpful?

I think technology's just a tool, and so technology alone isn't going to solve problems. For example, I think some of the schools that have experimented a little the inverted [or flipped] classroom, where you have students engage with the lecture outside of the class time and then have more guided activities inside the classroom. There's a place where I think technology can have a real benefit, because why should the teacher deliver a lecture that could just have easily have been engaged with in a more interesting way outside of the classroom, and then save the teacher's expertise for helping to debug misconceptions in students. So I think some of those things can be very valuable.

In general, I think technology hasn't been used that well in classrooms, certainly at the college level where I teach. MOOCs were all the rage, these massively online courses, which have really not engaged people very much because after you watch a video screen by yourself for about five minutes, you start looking at your cellphone. There's actually something valuable to being in a classroom with other people. You're much more likely to pay attention if there are 25 other students in the room also paying attention than if there's nobody around and you can do whatever you want. I mean, when I go home, every once in awhile I will sit and watch television by myself and after five minutes, I'm on my phone, and I'm trying to be entertained.

We have to really think about how technology can fit with the way people learn rather than assuming that just putting it online, or just using a computer to present the information, is going to fix all of the problems.

How Teaching Using Mindfulness or Growth Mindset Can Backfire published first on http://ift.tt/2x05DG9

[sociopplwatcher]

Copycat Crimes: Its relation to sociology, biology and psychology

 Research in all fields is very important in helping us to understand how the world works around us. Data can be examined and presented in many different forms. As a researcher or observer, you still need to look at things objectively at times. Unfortunately, sometimes data is lacking and often data needs retheorized and tested again since it can change over periods of time. Sociology is one of those where culture and our media influences come into play a lot and some patterns only have truly only begun to be established. Crime, media, and technology have been continuing to influence patterns of behavior over centuries but as of the twentieth century, we are only now really beginning to understand more of these patterns, which also leaves the need for more research to be conducted.

I choose to present a hypothesized peer-reviewed article on copycat crimes. Currently as of this article’s publishing in December 2016 they are waiting for the studies to be validated or rejected. In this case, the researchers are using empirical observations from previous related research. They utilized crime concepts across several biology, sociology and psychology theories to develop their own theory on why copycat crimes need to be evaluated differently and how these established patterns they noticed were affected based on what is presented by the media. They began using 23 previously established theoretical concepts rooted in these fields of study. They are doing qualitative research that can’t easily be answered by numbers. It requires an understanding of an individual level as well as large scale due to the all dependent variables.

Until recently copycat crimes weren’t looked at as separate entity from criminology itself or looked at much from a sociological perspective, despite being considered a social phenomenon. So, the research is a bit understated currently and is a prelude to studies in progress. This article examines ways to ask questions going into the future while utilizing the connections that were established so far from hypothesis and reviewing concepts stemming from related theories. While I’m not going to discuss all concepts of those fields of study in detail or all 44 hypothesized questions presented on how to proceed with further research, I will highlight important points that stood out to me in this article will state that the 3 facets to keep in mind are: criminogenic media, the copycat offenders themselves and the settings of the copycat.

      Highlights of this article and Key points

What is a copycat crime? In terms of this article, it’s important to see a copycat crime as a crime committed that was imitated initially by someone else. Even if the person established a new crime by changing details in pattern or behavior, it is a form of imitation and “role play”. The actions of the criminal must have incorporated a large part of crime they’ve seen presented within the media into their own offense.

Note: Items such as riots, school shootings, and terroristic acts also were included in these behavioral patterns.

Crime could be real or a fictionally presented crime presented in the media. Audio, visual, print and newer media forms make up the media presence considered.

Questions to consider: It is believed that criminal behavior is a learned social behavior. If so how does the media affect a person’s willingness to commit a copycat crime?

Imitation: This stems across the studies of biology, sociology, and psychology and is a necessary element of copycat crimes meaning we copy the beliefs, attitudes, and behavioral patterns of others.

Theory of mind- The understanding that imitation is a part of the normal socialization process. It also allows for an understanding of failed attempts at a crime and an idea of how to correct them.

Self-efficacy- Most important factor in learned social model theory. Does the copycat think they can get away with it and how they perceive their own ability? Will they be rewarded even if short-term by (money, status, or gang entry) and how do they perceive a punishment if negative.

Note- Copycats tend to underestimate what their punishment would be based on the media presentation. There simply is what the media presents, what the criminal observes and what the real punishment is. Observations will vary based on media, exposure length and can coincide with methods meant also to deter crime, which can also be counterintuitive.   

Hypothesis highlights

Unsuccessful crimes should produce the least amount of copycat crimes

Crimes producing strong emotions even if portrayals of them will produce more copycat crimes

The media’s representation of similarities in criminals and relatability of consumer will produce more crime from those groups. (How similar are their age, race, and gender.) I’m especially interested to see how this turns out in future sociological based studies on crime and race.

Crimes portrayed as “heroic” or made to look appealing with high status or a reward or some sort will produce more copycats.

Pre-established offenders will adopt new methods of behavior due to “risk of arrest” and look for methods and techniques to reduce risk in the future.

Several characteristics of copycat offenders

High intelligence= Learning the steps of criminal process or act

Lower Intelligence= The ones who agree the crime is a good idea

Lower social status, low social mobility, less education, and being less empathetic are more likely to become a copycat. Many have lower self-esteem, low self-control, and often seek rewards or have high dependency needed for an easier task.

 Location factors to consider

Family and neighborhood settings affect crime level more than cultural setting due to establishing the criminals reward vs punishment notion. Exposure early on to law abiding models helps diffuse some copycat behavior Societies with crimes seen as “rewarded” or sporadically inconsistent and have punishment/rewards that vary greatly will have a higher rate of copycat offenders.

I encourage anyone interested to go look at the full article if this is of interest you. It was a bit long but an interesting read. It will indeed be interesting to see how new media and increased immersion in all forms of it alters criminal behavior and copycat crimes especially combined with new social scripts presented.

Sources:

Surette, R. (2016). Copycat Crime and Copycat Criminals: Concepts and Research Questions. Journal of Criminal Justice and Popular Culture, 18(1), 49-78. Retrieved November 30, 2017, from http://www.albany.edu/scj/jcjpc/vol18is1/4%20Raymond%20Surette.pdf

ISSN 1070-8286

Book Citation: Conley, D. (2017). You may ask yourself: an introduction to thinking like a sociologist. New York: W.W. Norton.

[kylieclarke-bct]

Week 2/3 of Studio - Research Stage:

I haven’t done a blog post for last week, simply because my team’s research stages were over two weeks. All four of us went into week 3 Monday studio class with a tiny bit of information, but no where near enough to start analysing it and combining everyones facts together to gage where we want to go with our concept yet, so this week, is just a continuation of digging into our respective research topics.

Topics as follows:

Amanda = Child Poverty

Kat = Sustainability 

Sophie = Child Psychology

Kylie = Prisoner Rehab and Integration

My section of the research topics is certainly a hard one. We had the idea that a huge part of our business would be revolved around humanising prisoners and allowing them to work while incarcerated. This means they could be actually making the dolls for us giving them work, connections and something to do + humanising them to be successfully entered into society and making sure they do no re offend. Department of Corrections states, “...well-designed and delivered programmes can have a real effect on re-offending.” 

To get out everything that I have found that could be useful, I have bullet pointed facts below. This will make it easier for myself and my team to sift through next Monday during our studio session. 

Challenges Confronting Offenders when Released: 

Confronted by a range of social, economic and personal challenges that tend to become obstacles to a crime free lifestyle. These issues are more directly associated with the consequences of being incarcerated. 

Offenders may have a history of social isolation, physical or emotional abuse, poor employment or unemployment and early childhood crime. 

Many offenders come out of prison with poor inter-personal skills, low levels of formal education, illiteracy and innumeracy, poor cognitive or emotional functioning, and/or lack of planning and financial management skills.

The period of transition from custody to community can be very stressful. The period of incarceration may itself have had several “collateral effects”. 

They may have lost their livelihood, personal belongings, ability to maintain housing for themselves and family, and lost important relationships and social networks. 

This can result to homelessness/lack of motivation to change. 

Since 1990, an average of 590,400 inmates have been released annually from state and federal prisons. The Department of Justice’s (DOJ’s) Bureau of Justice Statistics (BJS) has estimated that nearly three quarters of all released prisoners will be rearrested within five years of their release and about 6 in 10 will be re-convicted.

Reintegration/Rehabilitation Programs:

Offenders who complete treatment programs have higher rates of success in terms of their successful reintegration. Factors that come from this are, more years of education, not having a history of sexual victimisation, fewer previous incarcerations, and lower levels of offending behaviour. 

Addressing offending in programmes is the start of success. Making them understand what they did is ‘wrong’. 

Department of Corrections focuses on motivation to change, cognitive-behavioural interventions and general skills to help a prisoner return to community. Includes parenting and practical life skills. 

Salvation Army have housing programs, to help offenders gain accommodation under supervision. 

Before going into rehab: Offenders were assessed before and after sentencing. Assessment tools were then used to identify the offender’s risk of reoffending, their criminogenic (offencerelated) needs, and their responsivity (motivation to change).

Program Development:

Reentry programs are often based on a case-management approach and based on a range of interventions. This means the offenders are interviewed to test to which program is most suitable. 

These program have some form of supervision.

There are three types of offender reintegration programs, 1, Institution-based programs. 2, Surveillance-based transition programs. 3, Assistance based transition programs. 

Institutional programs - designed to prepare offenders to reenter society can include education, mental health care, substance abuse treatment, job training, counselling, and mentoring.

Surveillance-based programs - centered on supervision of offenders in the community following release from confinement. On their own, with advice. (Parole) 

Assistance based programs - Offenders afflicted by mental illness encounter particular problems upon release into the community. These offenders may experience extreme social isolation and at risk for a co-occurring substance abuse disorder. As well, these offenders may encounter particularly difficulties in finding suitable accommodation and securing employment. And, it is likely that most of these offenders will require further medical and therapeutic services and assistance with money management. These factors, in combination with noncompliance of treatment orders, may make these individuals a risk not only to themselves, but to others as well. These offenders are focussed more on stabilizing and rehab. 

The conventional wisdom is that post-release employment is one of the most important elements for an ex-offender to successfully transition back into the community. Released prisoners frequently identify employment as one of the most important factors in their efforts to stay crimefree after incarceration. 

The Clearinghouse included five studies that examined the effects of programs that provided job training and/or post-release employment services for prisoners. Of these five studies, only two found that the program helped reduce recidivism, though neither program had a significant effect on post-release employment. 

Reducing Reoffending:

Interestingly, reintegration and rehabilitation services are not classified under the objective to ‘Improve Public Safety’; rather, they are newly classified as ‘Reducing Reoffending’

The Council’s budget is supposedly covering rehab programs. It seeks to provide for ‘the timely assessment of the rehabilitative and reintegrative needs of offenders and those remanded in custody and ensures identified offender needs are addressed through rehabilitation, education, employment and reintegration activities’

Reducing Reoffending 2016/17 Budget: 47% Rehabilitation 13% Reintegration 3% Training and education 25% Offender employment 12% Case management.

By only identifying the crimogenic needs of the individual, it does not necessarily identify how these ‘needs’ will be met or how they will be influenced in the transition beyond the prison gate in the community. 

The obsession with risk reduction can contribute to fear of offenders and an unwillingness on the part of the public to accept them readily into communities.

An objectification of an offender as a ‘problem’ that needs to be ‘fixed’ or managed can also have implications for how they are viewed when they are released into society—once a human is objectified, society may treat them as being ‘less human’, and less deserving of other human rights

Barriers to Reintegration:

Reducing reoffending and creating a safer society is impacted by how successfully each individual integrates or reintegrates into society post-prison. 

Countries with high imprisonment rates, like the United States and New Zealand, are discovering the links between the lack of opportunities and resources for released prisoners and their risks for reoffending, and are seeking to confront the enormous challenges created by the aftermath of imprisonment

The challenges posed simply by lack of acceptable ID for out going offenders. In an American longitudinal study, it was found that holding some form of identification, either at the moment of release or acquiring one soon after that was not affiliated to the Department of Corrections, was an overlooked factor of importance and related to better job outcomes for released prisoners.

Corrections results of Out of Gate (Out of Gate is only available to offenders serving sentences of two years or less or who have been on remand for more than 60 days.) have seen 67% of prisoners who complete their programme and received the service remain out of prison for six months and 53% for 12 months, which is a small-scale reduction against a sample of comparable offenders who did not engage in the service.

Stability is also relevant. Emergency housing or a boarding house can meet a particular need, especially in the days immediately following release from prison, but research has also identified the importance of stable housing in reducing reoffending. This is a huge problem in New Zealand.

Ex-prisoners do not commonly meet the current criteria for state housing, and current housing stock is ‘not well-configured for this group (largely single males who need smaller units)’. This means ex-prisoners commonly have to rely on private rentals or community-owned housing stock.

Certain demographics of ex-prisoners also may face bigger hurdles to housing, such as 17-year-olds, given that the majority of housing providers surveyed in Auckland-based research only provided specific support for ex-prisoners aged 18 and over

The challenge faced by ex-offenders to obtaining and retaining meaningful employment is not necessarily met by a simple fix or programme, given that the contributing barriers can come from different directions. 

Traditionally, Corrections has focused on the individual ‘needs’ of the offender through its IOM system, with rehabilitation programmes assigned to a prisoner’s personal sentence plan seeking to get offenders ‘work ready’ through skills-based courses dealing with literacy, formal qualifications and life skills.

In 2014, the National-led Government announced an election promise of turning every New Zealand prison into a ‘working prison’, with every eligible prisoner working a structured 40-hour-a-week timetable that included work experience, skills training and education. Minister Anne Tolley announced the strategy as an opportunity for prisoners ‘to learn good habits and take responsibility for their lives’ that would translate into their post-release habits and employment.

In more recent times there has been improvement in seeking to combat some ‘demand’ challenges by partnering with employers and industries to transition some prisoners into work, and increased cooperation between Corrections and Work and Income.

In October 2016, a three-year $15 million pilot scheme was announced by Government where Work and Income case managers will work with a group of prisoners, beginning 10 weeks before release and for 12 months after release to develop individual plans to get them into employment and help them access training and support services.

Women reported receiving slightly more treatment for mental health problems from health staff working in prison, especially from nursing staff, although fewer (one woman only as opposed to 2 percent of the men) had at some stage been transferred to a forensic psychiatry unit. Of the male samples, fewer in total had been seen for a mental health problem but not unexpectedly, more had been in special prison units and equivalent numbers of the sentenced men (20.8 percent) had been seen by a psychologist or psychiatrist. Approximately 2 percent had been transferred to a forensic psychiatric facility at some time in the past.

What Can be Changed? 

That the Department of Corrections makes it standard practice that: 

a. Every prisoner leaving prison has or is supported to apply for a form of ID accepted by most major banks and agencies. 

b. Every prisoner leaving prison has been able to set up their benefit (if required) prior to their release. 

c. Navigation services are extended and are available to all prisoners on their release.

That the Department of Corrections ensures all ex-prisoners are provided with six months of accommodation or the means for stable accommodation. 

Create post-prison public/private industry schemes that will employ prisoners for six months before release and 12 months post release if they have no other employment, dependent on not reoffending. 

That a New Zealand-based ‘Community Action for the Reintegration of Ex-Offenders’ (CARE) Network is developed.

That every person leaving prison should have a sponsor or mentor from a community reintegration service under the umbrella of CARE.

That the Department of Corrections makes reducing racial inequalities in reoffending an urgent strategic priority. 

References:

Department of Corrections. (n.d.). Corrections department nz - rehabilitation and intervention. Retrieved from http://www.corrections.govt.nz/working_with_offenders/community_sentences/employment_and_support_programmes/rehabilitation_and_treatment_programmes.html

Department of Corrections. (n.d.). Corrections department nz - rehabilitation programmes. Retrieved from http://www.corrections.govt.nz/working_with_offenders/prison_sentences/employment_and_support_programmes/rehabilitation_programmes.html

Essay about jails, prisons, and rehabilitation - 981 words | bartleby. (n.d.). Retrieved from https://www.bartleby.com/essay/Jails-Prisons-and-Rehabilitation-F3CVMGXZVC

Griffiths, C. T., Dandurand, Y., & Murdoch, D. (2007, April). The social reintegration of offenders and crime prevention. Retrieved from https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/scl-rntgrtn/index-en.aspx

In Weijers, I., & In Duff, A. (2002). Punishing juveniles: Principle and critique. Oxford: Hart.

James, N. (2015, January 12). Offender reentry: correctional statistics, reintegration into the community, and recidivism. Retrieved from https://fas.org/sgp/crs/misc/RL34287.pdf

Johnston, A. (2016, December). Beyond the prison gate. Retrieved from http://www.salvationarmy.org.nz/sites/default/files/uploads/20161207spputsa-prison-gate-2016_report.pdf

Maxwell, G. M., & Morris, A. (2001). Restorative Justice for Juveniles: Conferencing, Mediation and Circles. Hart Publishing Limited.

[jennifersnyderca90]

Dual-Use Software Criminal Case Not So Novel

“He built a piece of software. That tool was pirated and abused by hackers. Now the feds want him to pay for the computer crooks’ crimes.”

The above snippet is the subhead of a story published last month by the The Daily Beast titled, “FBI Arrests Hacker Who Hacked No One.” The subject of that piece — a 26-year-old American named Taylor Huddleston — faces felony hacking charges connected to two computer programs he authored and sold: An anti-piracy product called Net Seal, and a Remote Administration Tool (RAT) called NanoCore that he says was a benign program designed to help users remotely administer their computers.

Photo illustration by Lyne Lucien/The Daily Beast

The author of the Daily Beast story, former black hat hacker and Wired.com editor Kevin Poulsen, argues that Huddleston’s case raises a novel question: When is a programmer criminally responsible for the actions of his users?

“Some experts say [the case] could have far reaching implications for developers, particularly those working on new technologies that criminals might adopt in unforeseeable ways,” Poulsen wrote.

But a closer look at the government’s side of the story — as well as public postings left behind by the accused and his alleged accomplices — paints a more complex and nuanced picture that suggests this may not be the case to raise that specific legal question in any meaningful way.

Mark Rumold, senior staff attorney at the Electronic Frontier Foundation (EFF), said cases like these are not so cut-and-dry because they hinge on intent, and determining who knew what and when.

“I don’t read the government’s complaint as making the case that selling some type of RAT is illegal, and if that were the case I think we would be very interested in this,” Rumold said. “Whether or not [the government’s] claims are valid is going to be extraordinarily fact-specific, but unfortunately there is not a precise set of facts that would push this case from being about the valid reselling of a tool that no one questions can be done legally to crossing that threshold of engaging in a criminal conspiracy.”

Citing group chat logs and other evidence that hasn’t yet been made public, U.S. prosecutors say Huddleston intended NanoCore to function more like a Remote Access Trojan used to remotely control compromised PCs, and they’ve indicted Huddleston on criminal charges of conspiracy as well as aiding and abetting computer intrusions.

Poulsen depicts Huddleston as an ambitious — if extremely naive — programmer struggling to make an honest living selling what is essentially a dual-use software product. Using the nickname “Aeonhack,” Huddleston marketed his NanoCore RAT on Hackforums[dot]net, an English-language hacking forum that is overrun with young, impressionable but otherwise low-skilled hackers who are constantly looking for point-and-click tools and services that can help them demonstrate their supposed hacking prowess.

Yet we’re told that Huddleston was positively shocked to discover that many buyers on the forum were using his tools in a less-than-legal manner, and that in response he chastised and even penalized customers who did so. By way of example, Poulsen writes that Huddleston routinely used his Net Seal program to revoke the software licenses for customers who boasted online about using his NanoCore RAT illegally.

We later learn that — despite Net Seal’s copy protection abilities — denizens of Hackforums were able to pirate copies of NanoCore and spread it far and wide in malware and phishing campaigns. Eventually, Huddleston said he grew weary of all the drama and sold both programs to another Hackforums member, using the $60,000 or so in proceeds to move out of the rusty trailer he and his girlfriend shared and buy a house in a low-income corner of Hot Springs, Arkansas.

From the story:

“Now even Huddleston’s modest home is in jeopardy,” Poulsen writes. “As part of their case, prosecutors are seeking forfeiture of any property derived from the proceeds of NanoCore, as well as from Huddleston’s anti piracy system, which is also featured in the indictment. ‘Net Seal licensing software is licensing software for cybercriminals,’ the indictment declares.

“For this surprising charge—remember, Huddleston use the licenses to fight crooks and pirates—the government leans on the conviction of a Virginia college student named Zachary Shames, who pleaded guilty in January to selling hackers a keystroke logging program called Limitless. Unlike Huddleston, Shames embraced malicious use of his code. And he used Net Seal to protect and distribute it.

“Huddleston admits an acquaintanceship with Shames, who was known on HackForums as ‘Mephobia,’ but bristles at the accusation that Net Seal was built for crime. ‘Net Seal is literally the exact opposite of aiding and abetting’ criminals, he says. ‘It logs their IP addresses, it block their access to the software, it stops them from sharing it with other cyber criminals. I mean, every aspect of it fundamentally prevents cybercrime. For them to say that [crime] is its intention is just ridiculous.’”

Poulsen does note that Shames pleaded guilty in January to selling his Limitless keystroke logging program, which relied on Huddleston’s Net Seal program for distribution and copy protection.

Otherwise, The Daily Beast story seems to breeze over relationship between Huddleston and Shames as almost incidental. But according to the government it is at the crux of the case, and a review of the indictment against Huddleston suggests the two’s fortunes were intimately intertwined.

From the government’s indictment:

“During the course of the conspiracy, Huddleston received over 25,000 payments via PayPal from Net Seal customers. As part of the conspiracy, Huddleston provided Shames with access to his Net Seal licensing software in order to assist Shames in the distribution of his Limitless keylogger. In exchange, Shames made at least one thousand payments via PayPal to Huddleston.”

“As part of the conspiracy, Huddleston and Shames distributed the Limitless keylogger to over 3,000 people who used it to access over 16,000 computers without authorization with the goal and frequently with the result of stealing sensitive information from those computers. As part of the conspiracy, Huddleston provided Net Seal to several other co-conspirators to assist in the profitable distribution of the malicious software they developed, including prolific malware that has repeatedly been used to conduct unlawful and unauthorized computer intrusions.”

A screen shot of Zach “Mephobia” Shames on Hackforums discussing the relationship between his Limitless keylogger and Huddleston’s (Aeonhack) Net Seal anti-piracy and payment platform.

Allison Nixon, director of security research for New York City-based security firm Flashpoint, observed that in the context of Hackforums, payment processing through Paypal is a significant problem for forum members trying to sell dual-use software and services on the forum.

“Most of their potential customer base uses PayPal, but their vendor accounts keep getting suspended for being associated with crime, so people who can successfully get payments through are prized,” Nixon said. “Net Seal can revoke access to a program that uses it, but it is a payment processing and digital rights management (DRM) system. Huddleston can claim the DRM is to prevent cybercrime, but realistically speaking the DRM is part of the payment system — to prevent people from pirating the software or initiating a Paypal chargeback. Just because he says that he blocked someone’s license due to an admission of crime does not mean that was the original purpose of the software.”

Nixon, a researcher who has spent countless hours profiling hackers and activities on Hackforums, said selling the NanoCore RAT on Hackforums and simultaneously scolding people for using it to illegally spy on people “could at best be seen as the actions of the most naive software developer on the Earth.”

“In the greater context of his role as the money man for Limitless Keylogger, it does raise questions about how sincere his anti-cybercrime stance really is,” Nixon said. “Considering that he bought a house from this, he has a significant financial incentive to play ignorant while simultaneously operating a business that can’t make nearly as much money if it was operated on a forum that wasn’t infested with criminals.”

Huddleston makes the case in Poulsen’s story that there’s a corporate-friendly double standard at work in the government’s charges, noting that malicious hackers have used commercial remote administration tools like TeamViewer and VNC for years, but the FBI doesn’t show up at their corporate headquarters with guns drawn.

But Nixon notes that RATs sold on Hackforums are extremely dangerous for the average person to use on his personal computer because there are past cases when RAT authors divert infected machines to their own botnet.

Case in point: The author of the Blackshades Trojan — once a wildly popular RAT sold principally on Hackforums before its author and hundreds of its paying customers were arrested in a global law enforcement sweep — wasn’t content to simply rake in money from the sale of each Blackshades license: He also included a backdoor that let him secretly commandeer machines running the software.

A Hackforums user details how the Blackshades RAT included a backdoor that let the RAT’s original author secretly access systems infected with the RAT.

“If a person is using RAT software on their personal machine that they purchased from Hackforums, they are taking this risk,” Nixon said. “Programs like VNC and Teamviewer are much safer for legitimate use, because they are actual companies, not programs produced by teenagers in a criminogenic environment.”

All of this may be moot if the government can’t win its case against Huddleston. The EFF’s Rumold said while prosecutors may have leverage in Shames’s conviction, the government probably doesn’t want to take the case to trial.

“My guess is if they want a conviction, they’re going to have to go to trial or offer him some type of very favorable plea,” Rumold said. “Just the fact that Huddleston was able to tell his story in a way that makes him come off as a very sympathetic character sounds like the government may have a difficult time prosecuting him.”

A copy of the indictment against Huddleston is available here (PDF).

If you enjoyed this story, take a look at a related piece published here last year about a different RAT proprietor selling his product on Hackforums who similarly claimed the software was just a security tool designed for system administrators, despite features of the program and related services that strongly suggested otherwise.

from https://krebsonsecurity.com/2017/04/dual-use-software-criminal-case-not-so-novel/

[amberdscott2]

Dual-Use Software Criminal Case Not So Novel

“He built a piece of software. That tool was pirated and abused by hackers. Now the feds want him to pay for the computer crooks’ crimes.”

The above snippet is the subhead of a story published last month by the The Daily Beast titled, “FBI Arrests Hacker Who Hacked No One.” The subject of that piece — a 26-year-old American named Taylor Huddleston — faces felony hacking charges connected to two computer programs he authored and sold: An anti-piracy product called Net Seal, and a Remote Administration Tool (RAT) called NanoCore that he says was a benign program designed to help users remotely administer their computers.

Photo illustration by Lyne Lucien/The Daily Beast

The author of the Daily Beast story, former black hat hacker and Wired.com editor Kevin Poulsen, argues that Huddleston’s case raises a novel question: When is a programmer criminally responsible for the actions of his users?

“Some experts say [the case] could have far reaching implications for developers, particularly those working on new technologies that criminals might adopt in unforeseeable ways,” Poulsen wrote.

But a closer look at the government’s side of the story — as well as public postings left behind by the accused and his alleged accomplices — paints a more complex and nuanced picture that suggests this may not be the case to raise that specific legal question in any meaningful way.

Mark Rumold, senior staff attorney at the Electronic Frontier Foundation (EFF), said cases like these are not so cut-and-dry because they hinge on intent, and determining who knew what and when.

“I don’t read the government’s complaint as making the case that selling some type of RAT is illegal, and if that were the case I think we would be very interested in this,” Rumold said. “Whether or not [the government’s] claims are valid is going to be extraordinarily fact-specific, but unfortunately there is not a precise set of facts that would push this case from being about the valid reselling of a tool that no one questions can be done legally to crossing that threshold of engaging in a criminal conspiracy.”

Citing group chat logs and other evidence that hasn’t yet been made public, U.S. prosecutors say Huddleston intended NanoCore to function more like a Remote Access Trojan used to remotely control compromised PCs, and they’ve indicted Huddleston on criminal charges of conspiracy as well as aiding and abetting computer intrusions.

Poulsen depicts Huddleston as an ambitious — if extremely naive — programmer struggling to make an honest living selling what is essentially a dual-use software product. Using the nickname “Aeonhack,” Huddleston marketed his NanoCore RAT on Hackforums[dot]net, an English-language hacking forum that is overrun with young, impressionable but otherwise low-skilled hackers who are constantly looking for point-and-click tools and services that can help them demonstrate their supposed hacking prowess.

Yet we’re told that Huddleston was positively shocked to discover that many buyers on the forum were using his tools in a less-than-legal manner, and that in response he chastised and even penalized customers who did so. By way of example, Poulsen writes that Huddleston routinely used his Net Seal program to revoke the software licenses for customers who boasted online about using his NanoCore RAT illegally.

We later learn that — despite Net Seal’s copy protection abilities — denizens of Hackforums were able to pirate copies of NanoCore and spread it far and wide in malware and phishing campaigns. Eventually, Huddleston said he grew weary of all the drama and sold both programs to another Hackforums member, using the $60,000 or so in proceeds to move out of the rusty trailer he and his girlfriend shared and buy a house in a low-income corner of Hot Springs, Arkansas.

From the story:

“Now even Huddleston’s modest home is in jeopardy,” Poulsen writes. “As part of their case, prosecutors are seeking forfeiture of any property derived from the proceeds of NanoCore, as well as from Huddleston’s anti piracy system, which is also featured in the indictment. ‘Net Seal licensing software is licensing software for cybercriminals,’ the indictment declares.

“For this surprising charge—remember, Huddleston use the licenses to fight crooks and pirates—the government leans on the conviction of a Virginia college student named Zachary Shames, who pleaded guilty in January to selling hackers a keystroke logging program called Limitless. Unlike Huddleston, Shames embraced malicious use of his code. And he used Net Seal to protect and distribute it.

“Huddleston admits an acquaintanceship with Shames, who was known on HackForums as ‘Mephobia,’ but bristles at the accusation that Net Seal was built for crime. ‘Net Seal is literally the exact opposite of aiding and abetting’ criminals, he says. ‘It logs their IP addresses, it block their access to the software, it stops them from sharing it with other cyber criminals. I mean, every aspect of it fundamentally prevents cybercrime. For them to say that [crime] is its intention is just ridiculous.’”

Poulsen does note that Shames pleaded guilty in January to selling his Limitless keystroke logging program, which relied on Huddleston’s Net Seal program for distribution and copy protection.

Otherwise, The Daily Beast story seems to breeze over relationship between Huddleston and Shames as almost incidental. But according to the government it is at the crux of the case, and a review of the indictment against Huddleston suggests the two’s fortunes were intimately intertwined.

From the government’s indictment:

“During the course of the conspiracy, Huddleston received over 25,000 payments via PayPal from Net Seal customers. As part of the conspiracy, Huddleston provided Shames with access to his Net Seal licensing software in order to assist Shames in the distribution of his Limitless keylogger. In exchange, Shames made at least one thousand payments via PayPal to Huddleston.”

“As part of the conspiracy, Huddleston and Shames distributed the Limitless keylogger to over 3,000 people who used it to access over 16,000 computers without authorization with the goal and frequently with the result of stealing sensitive information from those computers. As part of the conspiracy, Huddleston provided Net Seal to several other co-conspirators to assist in the profitable distribution of the malicious software they developed, including prolific malware that has repeatedly been used to conduct unlawful and unauthorized computer intrusions.”

A screen shot of Zach “Mephobia” Shames on Hackforums discussing the relationship between his Limitless keylogger and Huddleston’s (Aeonhack) Net Seal anti-piracy and payment platform.

Allison Nixon, director of security research for New York City-based security firm Flashpoint, observed that in the context of Hackforums, payment processing through Paypal is a significant problem for forum members trying to sell dual-use software and services on the forum.

“Most of their potential customer base uses PayPal, but their vendor accounts keep getting suspended for being associated with crime, so people who can successfully get payments through are prized,” Nixon said. “Net Seal can revoke access to a program that uses it, but it is a payment processing and digital rights management (DRM) system. Huddleston can claim the DRM is to prevent cybercrime, but realistically speaking the DRM is part of the payment system — to prevent people from pirating the software or initiating a Paypal chargeback. Just because he says that he blocked someone’s license due to an admission of crime does not mean that was the original purpose of the software.”

Nixon, a researcher who has spent countless hours profiling hackers and activities on Hackforums, said selling the NanoCore RAT on Hackforums and simultaneously scolding people for using it to illegally spy on people “could at best be seen as the actions of the most naive software developer on the Earth.”

“In the greater context of his role as the money man for Limitless Keylogger, it does raise questions about how sincere his anti-cybercrime stance really is,” Nixon said. “Considering that he bought a house from this, he has a significant financial incentive to play ignorant while simultaneously operating a business that can’t make nearly as much money if it was operated on a forum that wasn’t infested with criminals.”

Huddleston makes the case in Poulsen’s story that there’s a corporate-friendly double standard at work in the government’s charges, noting that malicious hackers have used commercial remote administration tools like TeamViewer and VNC for years, but the FBI doesn’t show up at their corporate headquarters with guns drawn.

But Nixon notes that RATs sold on Hackforums are extremely dangerous for the average person to use on his personal computer because there are past cases when RAT authors divert infected machines to their own botnet.

Case in point: The author of the Blackshades Trojan — once a wildly popular RAT sold principally on Hackforums before its author and hundreds of its paying customers were arrested in a global law enforcement sweep — wasn’t content to simply rake in money from the sale of each Blackshades license: He also included a backdoor that let him secretly commandeer machines running the software.

A Hackforums user details how the Blackshades RAT included a backdoor that let the RAT’s original author secretly access systems infected with the RAT.

“If a person is using RAT software on their personal machine that they purchased from Hackforums, they are taking this risk,” Nixon said. “Programs like VNC and Teamviewer are much safer for legitimate use, because they are actual companies, not programs produced by teenagers in a criminogenic environment.”

All of this may be moot if the government can’t win its case against Huddleston. The EFF’s Rumold said while prosecutors may have leverage in Shames’s conviction, the government probably doesn’t want to take the case to trial.

“My guess is if they want a conviction, they’re going to have to go to trial or offer him some type of very favorable plea,” Rumold said. “Just the fact that Huddleston was able to tell his story in a way that makes him come off as a very sympathetic character sounds like the government may have a difficult time prosecuting him.”

A copy of the indictment against Huddleston is available here (PDF).

If you enjoyed this story, take a look at a related piece published here last year about a different RAT proprietor selling his product on Hackforums who similarly claimed the software was just a security tool designed for system administrators, despite features of the program and related services that strongly suggested otherwise.

from Amber Scott Technology News https://krebsonsecurity.com/2017/04/dual-use-software-criminal-case-not-so-novel/

[lodelss]

The Growing Power of Prosecutors

Hope Reese | Longreads | May 2019 | 16 minutes (4,345 words)

In our current criminal justice system, there is one person who has the power to determine someone’s fate: the American prosecutor. While other players are important — police officers, judges, jury — the most essential link in the system is the prosecutor, who is critical in determining charges, setting bail, and negotiating plea bargains. And whose influence often falls under the radar.

Journalist Emily Bazelon’s new book, Charged, The New Movement to Transform American Prosecution and End Mass Incarceration, brings to light some of the invisible consequences of our current judicial system — one in which in which prosecutors have “breathtaking power” that she argues is out of balance.

In Charged, a deeply-reported work of narrative nonfiction, Bazelon tells the parallel stories of Kevin, charged with possession of a weapon in Brooklyn, New York, and Noura, who was charged with killing her mother in Memphis, Tennessee, to illustrate the immense authority that prosecutors currently hold, how deeply consequential their decisions are for defendants, and how different approaches to prosecution yield different outcomes. Between these stories, she weaves in the recent push for prosecutorial reform, which gained momentum in the 2018 local midterm elections, and the movement away from mass incarceration.

I spoke to Bazelon — currently a staff writer for The New York Times Magazine and cohost of the Slate Political Gabfest — on the phone, discussing problems with mandatory sentencing and what the public should know in order to make informed decisions when voting for their local D.A., among other subjects. This interview has been edited for length and clarity.

*

Hope Reese: In the 80s and 90s, prosecutors began to hold much greater power in the judicial system than they previously had. You write that in the 30 years between then and now, Americans “first embraced punishment levels lower than Sweden’s, then built a justice system more punitive than Russia’s.” How did such a drastic increase in power occur?

Emily Bazelon: In the late ’70s, crime starts to go up. Even before that you have a turn by politicians — starting with Barry Goldwater, then Richard Nixon, and then later Ronald Reagan — toward a very law-and-order fear-mongering platform, arguing that people who commit crimes need to be locked up for a long time. It’s pretty racialized rhetoric. The combination of fear actually rising and then the politicians capitalizing on it leads to much stricter sentencing laws. Part of this is just increasing the penalties, but part of it is mandatory minimum sentences.

The idea of this mandatory minimum sentence is that you’re going to take discretion out of the system by tying the hands of judges, right? Like if they have to give a certain sentence, then you won’t have to worry about a “softie” judge. The problem is, you can’t really take discretion out of the criminal justice system. It has to continue to live somewhere, and mandatory minimum sentences, even though no one really described it this way while it was happening, give discretion to prosecutors — because suddenly the charge determines the punishment.

And so the charging shifts power to prosecutors, and in addition plea bargaining, in a couple of ways. One way is that once you have mandatory sentences, it’s easier for prosecutors to force plea bargains, because they have so much more leverage. And another thing that happened basically simultaneously is that the criminal codes expand, so there are just more things to get charged with, and more choices of charges, so prosecutors can stack charges. And that also increases the penalty and increases leverage and basically makes the trial disappear in American law. You end up with what we have now, which is like a 2 percent trial rate in a lot of state court systems.

Do mandatory sentences lead to crime reduction?

Yeah, a little bit. I mean, there’s a lot of debate over what leads violent crime to fall in the United States, really more in the late ’90s through the 2000s. The comprehensive big literature review by the National Academy of Sciences finds that increased sentences have what they call a best to modest effect on reducing crime. So in other words, you take people off the streets. You lock those people up. Those particular people are not going to be committing crimes outside of prison, and there’ll be some other people who are deterred, but I think the question that criminologists and really lots of people increasingly ask is: Is that modest impact worth the human cost?

Especially because there’s new studies showing that jail and prison are what’s called criminogenic. That’s like carcinogenic. Like, they actually cause crime in the medium to longer term. The idea is yeah, you lock people up in the shorter term, but almost everyone gets out — and when they get out, they tend to be more desperate, have a harder time getting a job, finding housing, and those things all correlate with being more likely to commit crimes afterward. I think at this point, most of these people would agree that American sentences are way out of proportion to what we need for deterrence, and in fact, are having a negative effect.

I could only find two instances in which two different prosecutors went to jail for a few days each, like in the whole history of prosecutorial misconduct.

You write about how prosecutor culture, which values confidence and speed over caution and delay, can be a problem for giving people fair chance under the law. How we could start to change that?

Yeah. So this has to do with the culture of prosecutors’ offices, how we train prosecutors, and what we tell them we value. On paper they have a dual responsibility. They’re supposed to win convictions and also be ministers of justice, but in practice a lot of prosecutors’ offices reward prosecutors for winning big trials and getting long sentences. As long as you have that kind of reward system in place, you’re valuing stricter punishment over second chances.

To change that you have to start recognizing people who are declining to charge someone, or for dropping the charges if the case is weak. Or for putting more people into alternatives to our incarceration program. It’s really changed how we define the job and how we define success of the job.

You describe the first steps of being charged, and how it’s often tricky with circumstantial evidence, illegal evidence-gathering, or police who aren’t issuing Miranda rights. You call this part of the “rotten foundation” that cases are often built on. How is this happening?

Well I think that there are a few things going on. One is just the problem of how much evidence prosecutors actually have to put forward. If you never have a trial, then your case isn’t going to be truly tested, and so you’re going to be able to assert a lot of things that may or may not be true without really being accountable for those facts. This is something that, to some degree, varies state-by-state, because some states have enacted better laws for sharing evidence early in a case with the defense, long before a trial. But it’s still an ongoing issue, and I think what you’re really seeing here is how the decline of the trial intersects with the lack of accountability for prosecutors.

Then I think the other kind of related issue I was writing about with Noura’s case is this problem of what people call tunnel vision or confirmation bias. Once the police have arrested someone, there’s an incentive to think that that’s the person who did it. It’s sort of normal human psychology to emphasize facts that confirm your pre-existing beliefs as opposed to challenging them.

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How much is decided at the whim or discretion of prosecutors when it comes to determining the charge for a crime?

Well, I mean, prosecutors work closely with the police, so it’s not like they’re doing this themselves. But prosecutors are the people who bring charges. That’s their job.

So they bring charges — but they are also guaranteed immunity from repercussions, which is not the case with police. How did that happen, and what does absolute immunity actually mean in practice?

Absolute immunity comes from a Supreme Court decision called Imbler vs. Pachtman. Absolute immunity is unusual for government officials. The cops, for example, have qualified immunity. Absolute immunity means that if you can argue something you did, however bad, was in the course of doing your job, you cannot personally be sued for it. It’s like a very blanket protection, and so it has meant that it’s virtually impossible to sue prosecutors personally.

And then there’s sort of some problems compounding that rule. The Supreme Court in a later case called Connick vs. Thompson made it very difficult to sue a district attorney’s office, so then you have the whole office being shielded, absent a pattern or practice of misconduct, and then they made it really hard to prove the pattern of misconduct. And when the Supreme Court decided Imbler, they kind of reassuringly said, “Oh, don’t worry. A prosecutor who commits misconduct will be prosecuted him or herself.” But that doesn’t really happen. I mean, I could only find two instances in which two different prosecutors went to jail for a few days each, like in the whole history of prosecutorial misconduct.

And then the last piece of this is that the Supreme Court also said, “Oh don’t worry, because the bar, the legal profession, will discipline prosecutors.” But that is also very unusual, and I tell the story of a kind of failed disciplinary effort in Tennessee that I think shows the challenges for accountability from the bar.

We hear about racial profiling from police, but in your reporting, have you come across profiling when it comes to sentencing or being charged with crimes?

Well, there’s definitely racial disparity built into charging and plea bargaining offenses, and studies have shown that at every step along the way, African American defendants get worse deals for similar conduct. So yes.

Right. But, is it something we’re not quite as aware of?

Yeah. I think in general, the police, we all see the police in the streets. They wear uniforms. Judges also wear a kind of uniform. Right? They wear a robe. They’re very visible icons of justice, but prosecutors are just lawyers wearing suits and I think the things they do tend to be more hidden and more veiled in the kind of density and abstract nature of law. It’s complicated to understand all the legal interpreting of what they’re up to. So, I think that they’ve gone relatively unnoticed in the picture of how American justice has changed.

You write about how important bail can be, that it can shape the outcome of a criminal case. But we currently have a private bail industry that you argue is in need of reform. Can you explain what’s wrong?

The United States and the Philippines are the only two countries in the world that allow for-profit cash bail — so we’re outliers. But our whole system of what happens to you after you’re charged, but before you’re convicted, depends on paying bail in most states in the country. So, you get charged with a crime, you go before a judge. The judge can let you out, called getting released on your own recognizance, or they can set bail in some amount. For many crimes in many places, judges set bail.

If you can’t pay, then you’re being detained because you don’t have enough money. To me, when I think about it that way, it starts to seem very strange. That it’s really money rather than public safety or the risk of failing to appear in court that’s driving the system. Even if you set high bail because of public safety or a failure to appear, it is still true that people who are wealthy are more likely to get out than people who don’t have money.

Right. But some states, like Kentucky, have outlawed cash bail. And there’s actually evidence that people will generally return to court even if they haven’t paid the bail. Right?

Exactly. Kentucky and Washington, D.C., especially have had systems for decades where there’s a small fraction of people who are held in jail because they’re deemed to be a public safety threat, and then everybody else gets out and almost all of those people come back to court without putting any money down — which really shows us that our for-profit cash bail system is not necessary.

Study after study shows that people who are being held in jail, pre-trial, because they can’t afford bail, are more likely to plead guilty.

How is bail part of a kind of domino effect that can start to impact the way a whole case might go?

Study after study shows that people who are being held in jail, pre-trial, because they can’t afford bail, are more likely to plead guilty. And when you think about it, it’s pretty logical. If you want to go home, you have an incentive to just sign the paper. Okay, it’s a lower offense. I’m getting a deal from the prosecutor. Maybe I did it. Maybe I didn’t. I just want to go home.

It really zaps people’s willingness or desire or endurance to fight charges. If you think of, in a more simple sense, the purpose of bail and holding people pre-trial, it’s really to keep the wheels of the system turning, because plea bargains — and especially quick plea bargains — save everybody a lot of time and work. Meaning the lawyers and the judges.

And the bail companies also sometimes do monitoring and surveillance as well, right?

Yeah. We’re putting ankle bracelets on people when they’re out pre-trial to make sure they come back. In some states, they’re monitored by the court system, but it is true. There are privatized companies that are also providing pre-trial services. Then you have a way in which we’re turning another aspect of the system into a for-profit enterprise.

You write about the impetus to “keep guns off the street,” which I think many people would get on board with, in order to reduce crime and mass shootings. But do you see an unintended consequence of this goal?

Yeah. I do. I think that when liberals support gun control, we usually think of the importance of like tightening the loopholes for who can buy a gun and requiring permits. There are lots of reasons to support gun permitting, and evidence that it can reduce gun violence. But I don’t think we think enough about the other side of the coin — which is when someone doesn’t have a permit, then what happens?

In most states, or in many states, we fine those people. But, there are a few states like New York that have these very harsh prison sentences for possessing a gun even if you don’t have a criminal record. Even if you didn’t threaten anyone with that gun. First of all, you can see all the racial disparity it leads to. These are laws that are enforced in poor black neighborhoods. Predominantly black communities definitely want public safety and they want good policing and they don’t want guns, but they also want things like social services that we’ve shown prevent crime.

But, instead, we put people in prison. There’s this useful framework that comes from my friend James Foreman, who’s a Yale Law Professor who talks about these predominantly black neighborhoods getting the worst of both worlds. Both having the threat from the guns and then also having the solution be prison, as opposed to something that changes the circumstances of people’s lives and gives them a reason to not have guns that is different from being incarcerated.

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And jail before trial is associated with more future risk of crime. Not less. Right?

Exactly. So, again, in New York, you send young black men to prison for two or three years for owning a gun. They’re all gonna come back after that time and they’re gonna be less employable. They’re gonna have problems getting back into public housing if that’s where they live. It’s just, in my view, a destructive way of dealing with the issue. It’s a real issue, but what’s the response that really makes sense?

So, you talked earlier about how few cases actually make it to trial — but isn’t there a lot of bias in trials as well? In witness testimony and unreliability of memory? Do you think there would be better outcomes if there were more trials instead of plea bargains?

Well, I think there’s two different things going on there. You’re right about eyewitness testimony and the reasons we have to doubt that sometimes and to really make sure that we have these procedures in place that don’t lead people to make mistakes in identification. Making sure that lineups are really blind and that the police don’t take their hand when they show someone a bunch of photoshoots about who they think the suspect is. It is totally true we should regard against all that. At the same time, I think it would be better if we had more trials because that’s when the government really gets tested. If you never have any trials, then the cops and the prosecutors can get away with sloppiness or even breaking the law. Violating people’s constitutional rights — and they never get called on it.

For example, I’m working on a podcast right now that’s related to my book. One of the people in the podcast was arrested and there was a stop and frisk on video. So, I can see the cops stop him and the police report says that Turari’s gun was visible in his waistband. But when you look at the videos, Turari was wearing this baggy hoodie. There’s no way the police saw the gun. You can’t see the gun. So, maybe they had another reason to stop him. It’s possible someone tipped them off and told that he had a gun, but you’d want to get that tested at trial. The problem is, Turari was facing such a long prison sentence that rolling the dice on going to trial just becomes too scary. So, you take the plea deal.

Let’s switch gears and talk about the reform movement. You outlined two different approaches to reform in your book. Gonzales, who’s the consensus-builder and Krasner, the “barn burner.” Can you talk about how you see these approaches?

I don’t really think one is better than the other, because we just don’t know enough. They’ve neither of them been in office very long and in some cities, the barn burner model is gonna be necessary. You’re gonna come into and office where prosecutors who work there are hostile to the reformer who comes in and it’s hostile to the reformer who comes in, like a new CEO. Come into a company, you don’t have to keep everybody there. They’re not entitled to a lifetime sinecure, and if they’re not down with what you want to do, it makes sense to fire people. On the other hand, if you don’t need to do that, you have people who are supporting your vision, then that can work.

In Philadelphia, Larry Krasner came into a pretty hostile office, and in Brooklyn Eric Gonzales came into an office where, first of all, he was a career prosecutor so he knew everyone. And there was much more of a tradition of discretion with plea bargaining and trying to work with defense counsel, much more than in Philadelphia. Gonzales needed a survey and most of his lawyers said yeah, we support your vision, and so he has been able to make fewer changes and still start to get done what he wants to get done.

In a few years, when we look at these prosecutors’ records and use new yardsticks like reducing incarceration, and reducing racial disparity, and increasing diversion, or just having fewer cases, then we’ll be able to start drawing some conclusions about what’s more effective.

When people see the law as legitimate, they’re much more likely to abide by it and to help do things like solve crimes and be witness to these cases.

D.A.s have traditionally run unopposed, and incumbents have often won in the past. What’s changed in the last couple of years?

There were a few things. One is that there’s bipartisan support for a new kind of prosecutor, and this is partly just because this is something that becomes so costly, and this blew so far beyond necessary bounds, and I think a lot of fiscal conservatives are fed up with it.

And then, importantly, you have the Black Lives Matter movement, which starts out obviously with a main priority being police shootings of unarmed people, but then intersects with the civil rights groups, and starts to think okay, what can we really do to change the places we live in, and change the power structure? And electing the local district attorney in a city turns out to be a tangible thing that this movement can deliver to its constituents. These are local elections, you don’t need to have that many voters to change the person in the D.A.’s office. If you organize, this is a win. So you start to see that awareness leads to a lot of real grass roots, local surges.

Then the third element is the donor class. Some donors, like George Soros, have come in and really powered these local organizers by giving them money.

You write that there should be more of a balance of power between prosecution, defense, and judiciary. What would an even shift look like to you?

Well, I think there are two things. One is that state legislators could eliminate mandatory minimum sentences, and that would have a big impact in the defense, prosecutor, judge shift that we’re talking about.

And I also think prosecutors have to give up some of their own power, which is not something that people usually want to do. For example, prosecutors that share all the evidence as quickly as possible with the defense — that’s a way of trying to even the scales. A state can pass a law requiring that, and Texas has done that in the last few years. But prosecutors can also do that themselves, in their own offices.

For people who don’t know a lot about their local prosecutors, what are the important things to learn when they’re making a decision about voting?

That’s a great question. I think you want to ask which kinds of crimes does your prosecutor think area priority? Are they interested in, for example, increasing the rate of conviction for murders, which is of late 60%. Across the country we only solve 60% of the homicides. Or are they talking about being tough on people who possess marijuana, or jump the turnstile, or have a traffic violation, right? So where’s the priority in the office?

Do they think that mass incarceration is a problem? What are they interested in doing to address it? And how do they think race plays into this itself, and do they have concrete steps they want to take to try to prevent racial disparity and racism from affecting the work of their office? How do they talk about treating teenagers who have committed crimes or minor offenses, like do they believe in treating kids like kids or do they want to prosecute teenagers as adults? And another thing to ask is how they think that they can try to protect immigrants from detention or deportation by reducing charges in some cases?

Your voice comes through as an advocate for reform. Where do you stand with this balance between your journalism and advocacy?

That’s a great question. I don’t see myself as an advocate. What I mean by that is, it’s not my job to push for a particular outcome. It’s my job to report what I’m seeing, and help people make informed decisions about the kind of criminal justice system that is pragmatic and makes sense. I’m a pragmatist at heart, so my reporting always drives me, as opposed to trying to bend the facts to support some predetermined outcome.

I did end my book with 21 principles for new prosecutors because I think a lot of times books like this, it’s all about the problem and the stories are upsetting because they show the problem, and then you get to the end and you have this sense of despair. I didn’t want people to have that, especially at a moment when I actually think there’s a lot of optimism and a lot of very interesting thinking about how to change things.

So I wanted to put all of that out there to give readers a sense of exactly the question you asked. Okay, if you’re voting for a local D.A., how do you know that this person has a different, a new vision of the criminal justice system? I wanted to give people a way to answer that question. But I always see myself as a journalist and not an advocate.

How can we rethink our justice system to make it more fair?

I think that we’ve had this “tough on crime” set of assumptions for a long, long time. To counter it we need to rethink safety. Safety is always the goal, right? That everyone deserves to be safe, and communities want to be safe. The challenge is to argue and really show people that when people, and there’s evidence for this, when people see the law as legitimate, they’re much more likely to abide by it and to help do things like solve crimes and be witness to these cases.

I would argue that because our system has become so punitive, it’s lost the trust and legitimacy in the eyes of a lot of the people who are impacted by it. And if you could get it back, we would actually be safer. So showing people that safety and fairness are integral to each other, that is a really important role that these new prosecutors can play.

* * *

Hope Reese is a journalist based in Louisville, KY. Her work has been featured in The Atlantic, the Los Angeles Review of Books, the Village Voice, Vox, and other publications.

Editor: Dana Snitzky

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[douglasacogan]

Questioning the use of actuarial risk assessment tools at sentencing

Erin Collins has this notable new commentary at The Crime Report under the headline "The Perils of 'Off-Label Sentencing'." I recommend the piece in full, and here are excerpts:

Current criminal justice reform efforts are risk-obsessed.  Actuarial risk assessment tools, which claim to predict the risk that an individual will commit, or be arrested for, criminal activity, dominate discussions about how to reform policing, bail, and corrections decisions.  And recently, risk-based reforms have entered a new arena: sentencing....  Actuarial sentencing has gained the support of many practitioners, academics, and prominent organizations, including the National Center for State Courts and the American Law Institute. [see Model Penal Code: Sentencing § 6B.09]

This enthusiasm is, at first blush, understandable: actuarial sentencing seems to have only promise and no peril. It allows judges to identify those who pose a low risk of recidivism and divert them from prison.  Society thus avoids the financial cost of unnecessarily incarcerating low-risk individuals.

And yet, this enthusiasm for actuarial sentencing ignores a seemingly crucial point: actuarial risk assessment tools were not developed for sentencing purposes.  In fact, the social scientists who developed the most popular risk assessment tools specified that they were not designed to determine the severity of a sentence, including whether or not to incarcerate someone.  Actuarial sentencing is, in short, an “off-label” application of actuarial risk assessment information.

As we know from the medical context, the fact that a use is “off-label” does not necessarily mean it is ill-advised or ineffective. And, indeed, many contend that actuarial sentencing is a simple matter of using data gleaned in one area of criminal justice and applying it to another.  If we know how to predict recidivism, why not use that information broadly? Isn’t this a prime example of an approach that is smart — rather than tough — on crime?

As I contend in my article, Punishing Risk, which is forthcoming in the Georgetown Law Journal this fall, the practice of actuarial sentencing is not that simple, nor is it wise. In fact, using actuarial information in this “off-label” way can cause an equally unintended consequence: it can justify more, not less, incarceration — and for reasons that undermine the fairness and integrity of our criminal justice system.

The actuarial risk assessment tools that are being integrated into sentencing decisions, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool, and the Level of Services Inventory-Revised (LSI-R), were designed to assist corrections officers with a specific task: how to administer punishment in a way that advances rehabilitation.  They are intended to be used after a judge has announced the sentence.  They are based on the Risk-Need-Responsivity principle, according to which recidivism risk is identified so that it can be reduced through programming, treatment and security classifications that are responsive to the individual’s “criminogenic needs” (recidivism risk factors that can be changed).

Sentencing judges, in contrast, do not administer punishment but rather determine how much punishment is due.  In doing so, they may use actuarial risk predictions to advance whatever punishment purpose they deem appropriate.  While they may decide to divert a low-risk individual from prison in order to increase their rehabilitative possibilities, they may also decide to sentence a high-risk individual more harshly — not because doing so will increase her prospects of rehabilitation, but because it will increase public safety....

The tools measure risk based on a range of characteristics that are anathema to a principled sentencing inquiry, such as gender, education and employment history, and family criminality. Perhaps consideration of these factors makes sense if the predictive output is used to administer punishment in a way that is culturally competent and individualized.

But in the sentencing context, it allows the judge to punish someone more harshly based on a compilation of characteristics that are inherently personal and wholly non-culpable, and often replicate racial biases that pervade other areas of the criminal justice system.  In other words, actuarial sentencing allows judges to defy the well-established tenet that we punish someone for what they did, not who they are....

Incorporating these tools into sentencing conflates recidivism risk, broadly defined, with risk to public safety. If we want to reduce our reliance on public safety, we must refine—rather than expand — the risk that counts for sentencing purposes.

Some of many prior related posts with links to articles and commentary on risk assessment tools:

"Punishing Risk"

"Principles of Risk Assessment: Sentencing and Policing" 

"Assessing Risk Assessment in Action"

"Moneyball Sentencing"

 "Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law"

"The Use of Risk Assessment at Sentencing: Implications for Research and Policy"

"In Defense of Risk-Assessment Tools" 

"Risk and Needs Assessment: Constitutional and Ethical Challenges"

"Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"

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