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October 5, 2009

Today in the New York Times
Posted by Patrick at 08:44 PM * 69 comments

—a pretty good piece summarizing University of California public-policy professor (and blogger) Mark Kleiman’s proposals to overhaul our law-enforcement priorities. Interesting stuff, and worth thinking about, but actually I’m just citing it in order to point to a juxtaposition that made me laugh out loud, because I too am a blogger and obliged to indulge in my quota of juvenile humor.

From the article, on the left:

[…M]ost criminals are not the dispassionate rational actors who populate standard economic models. They are more like impulsive children, blinded by the temptation of immediate reward and largely untroubled by the possibility of delayed or uncertain punishment.
From the adjacent sidebar, on the right:
Comments on Today in the New York Times--:
#1 ::: Joel Polowin ::: (view all by) ::: October 05, 2009, 09:08 PM:

Most criminals are not rational actors. Some are irrational directors.

#2 ::: Evan Goer ::: (view all by) ::: October 05, 2009, 09:29 PM:

"Experimenters have found, for example, that even long-term supporters of Roman Polanski become much less likely to say anything embarrassing when they are required to receive a mild electric shock before blogging."

#3 ::: Henry Troup ::: (view all by) ::: October 05, 2009, 09:37 PM:

When you consider high-speed (or even low-speed) chases, it's very clear that most criminals are impulsive, etc. Besides, rational people know that there's more money in honest work. (I read once that the average bank robbery nets $250 - not worth the effort.)

The juxtaposition is truly great.

#4 ::: Linkmeister ::: (view all by) ::: October 05, 2009, 09:45 PM:

According to Wikipedia (yes, yes), Willie Sutton got away with roughly $2M during his career robbing banks.

OTOH, he also spent nearly half his adult life in prison.

#5 ::: xebecs ::: (view all by) ::: October 05, 2009, 10:20 PM:

Regarding the Times article:

Isn't the conventional wisdom about gang activity that if one gang is shut down another one just takes over its turf? Is this a case of the CW being wrong? If not, I don't see how his gang strategy works -- focus on the Reds, and the other gangs just get stronger.

#6 ::: B. Durbin ::: (view all by) ::: October 05, 2009, 11:59 PM:

Josephine Tey had a quote something along the lines of "criminals are people who are unable to reason from B to C." Basically, they get the first part— I rob a bank, I get money— but are unable to get the second part— Robbing banks is risky and robbers are usually caught.

#7 ::: Paula Helm Murray ::: (view all by) ::: October 06, 2009, 12:38 AM:

B. Durbin, one of my guilty vices while unemployed is watching true crime video. Criminals are pretty much just stoopid. Except for the ones buggering our banks and other financial institutions. They're criminal in a venial way, accepting excessive pay for doing a little bit of work

#8 ::: will shetterly ::: (view all by) ::: October 06, 2009, 12:54 AM:

Polanski's rape seemed less "impulsive" to me after reading how he kept his victim's girlfriend from coming along that day. That moves it to premeditated.

#9 ::: Peter Darby ::: (view all by) ::: October 06, 2009, 07:20 AM:

Paula: I've been waiting a long time for the True Crime video that shows unsuccesful investigations, trivial harassment, and casual incompetence.

Either the police are superhumanly efficient, or they're schlubs like the rest of us but won't play if the TV companies let on.

#10 ::: Andy Wilton ::: (view all by) ::: October 06, 2009, 07:59 AM:

Linkmeister @ 4: Willie Sutton got away with roughly $2M during his career robbing banks.

It sounds like he did better than most. Even if you average over his entire adult life, that still comes out at better than $30K per year, presumably a decent living in the 1970s and a very good one in the 30s. By contrast John McVicar, one of Britain's more famous armed robbers, calculated that including time spent in prison, he'd have made more money as a manual labourer, digging ditches. (Incidentally, McVicar's autobiography looks excellent: be sure to read the "Look Inside" pages on Amazon for contrasting Bulgarian views of the Roger Daltrey film.)

#11 ::: Fragano Ledgister ::: (view all by) ::: October 06, 2009, 08:24 AM:

Joel Polowin #1: You win the internet.

#12 ::: albatross ::: (view all by) ::: October 06, 2009, 08:54 AM:

Yeah, I gather that criminals in the US tend to have quite a bit lower IQ scores than the general population, as well as rather different scores on personality tests. This is consistent with not-quite-complete reasoning, though there is obviously a lot of tangled causality going on there. (Being raised in the kind of environment that encourages a life of crime also discourages reading and schoolwork, both of which affect IQ scores IIRC.)

#13 ::: Janet Croft ::: (view all by) ::: October 06, 2009, 09:12 AM:

B. Durbin @6 -- That bears out what the authors of the controversial Bell Curve said about criminals -- that they lack the capacity for projecting the consequences of their actions into the future. But Tey says it more elegantly.

#14 ::: John Stanning ::: (view all by) ::: October 06, 2009, 09:15 AM:

Thing is, every big bank robbery gets front-page headlines, but the story two years later about the perpetrators going down for 30 years is only a few inches on page 15.  It’s easy to think, hey, those guys got away with $10 million, I can make it to the big time too!  Or maybe bank-robbing is like playing the lottery – the odds against success are astronomical, but people do win, so why not give it a try?

#15 ::: Lila ::: (view all by) ::: October 06, 2009, 09:53 AM:

Anyone who hasn't read Tony Hillerman's short piece, "The Great Taos Bank Robbery", contained in the anthology of the same name--go find it and read it.

#16 ::: Charlie Stross ::: (view all by) ::: October 06, 2009, 12:02 PM:

Speaking of criminals ... (attention conservation notice: a look inside the UK's probation service).

#17 ::: David Harmon ::: (view all by) ::: October 06, 2009, 12:03 PM:

Joel Polowin #1 Oh, snap!

Paula Helm Murray #7: Criminals are pretty much just stoopid. Except for the ones buggering our banks and other financial institutions.

Actually, I'd say that shows the difference between motive and ability. Given someone who's greedy and/or antisocial, the next question is how smart they are, including their range for "delayed gratification". If they're stupid, they go out and just take the money from banks, stores, passersby (mugging), and so forth, until they run afoul of either the cops or the competition.

The smart ones, on the other hand, will look for a position where they can rake in the dough while being protected by the law. And if they don't have "natural" access to the halls of power... well, their lack of ethical restraint can be quite useful to a similarly-minded employer.

#18 ::: Dan R. ::: (view all by) ::: October 06, 2009, 12:30 PM:

There is a large element of confirmation bias in the assumption that criminals are stupid. The ones that are caught are stupid (or unlucky). The ones that get away are not part of the sample.

#19 ::: albatross ::: (view all by) ::: October 06, 2009, 12:44 PM:

Dan R: I suspect there's some aspect of that, but I believe there's also evidence from surveys given to people--folks with lower IQs tended to self-report involvement in crime. (This may reflect that smarter people are too smart to confess to crimes on questionaires, though. It is inherently hard to make strong statements about criminals who never get caught.)

It's important not to read too much into this, I think. Criminals have a noticeably lower average IQ than non-criminals, but the overwhelming majority of people with low IQs are not criminals. (This is the same way it works with race and poverty; both are associated with higher crime rates, but most poor people and most minorities aren't criminals, and untangling the causality in all this stuff looks pretty hard, at least to my amateur eye.)

#20 ::: Raphael ::: (view all by) ::: October 06, 2009, 12:45 PM:

Frankly, I find it rather offensive to describe adults as being "like impulsive children". And "Most criminals are not the dispassionate rational actors who populate standard economic models"- is there any reason to believe that any people (aside from a handful of outliers) are "the dispassionate rational actors who populate standard economic models"?

Besides, how much of a point is there in more targeted police actions in places where the police are to some extent part of the problem? And, can police crackdowns targeted at individual gangs work (in the sense of making these gangs quieter) if each of these gangs is more under threats from under gangs than the police, and getting more peaceful might increase these threats for them?

And, in countries with official equal rights guarantees, aren't there constitutional issues with going mainly after one gang's crimes? Especially as long as in many places that have gangs, what gang you belong to is determined by ethnicity?

#21 ::: albatross ::: (view all by) ::: October 06, 2009, 12:53 PM:

One idea that maybe ties in with the article: ISTM that it's pretty common for a potential criminal to escalate through a whole series of bad stuff, getting more and more serious, with relatively small consequences. (Especially if they're handled in the juvenile justice system.) At some point, they're adults, or they cross some critical line like killing the guy instead of merely beating the hell out of him, or getting the third felony in a three-strikes state, and they get a huge increase in punishment. This seems like the worst case for people who are bad at evaluating possible consequences of their actions far in the future--the rewards and punishments support escalation until they're far along the path of being criminals.

I wonder if there would be some advantage to making those first steps more painful. I wonder if we'd get more advantage at this point increasing the penalties for the smaller crimes that often lead into the bigger ones, rather than increasing the penalties for the big crimes.

And I wonder how many seemingly unrelated things--screwed up schools, the disastrous way child support interacts with low-income multiple fathers, the @#$% war on drugs--end up driving serious crime, long term. At present, we lock up a bigger fraction of our population than any other country, and a fraction that is much higher than it was even 15 years ago. This suggests to me that locking 'em up is something we've done to the point of diminishing returns. And yet, once someone starts raping or killing people, there's nothing we honestly know how to do to protect everyone else, except to lock the rapist/murderer up for a long time.

#22 ::: Dan R. ::: (view all by) ::: October 06, 2009, 01:00 PM:

Albatross @19: I agree for the most part. Nothing is simple. I would take the word "large" out of my first sentence if I were editing.

Also, I should have said "survivor bias" rather than confirmation bias. I've just been reading Taleb Nassim's Fooled by Randomness, and got the two terms mixed.

#23 ::: ajay ::: (view all by) ::: October 06, 2009, 01:07 PM:

There is a large element of confirmation bias in the assumption that criminals are stupid. The ones that are caught are stupid (or unlucky). The ones that get away are not part of the sample.

ObSayers: "Read the divorce court lists. Wouldn't they give you the idea that marriage is a failure? Isn't the sillier sort of journalism packed with articles to the same effect? And yet, looking around among the marriages you know of personally, aren't the majority of them a success in a humdrum, undemonstrative kind of way? Only you don't hear of them. People don't bother to come into court and explain that they dodder along quite comfortably on the whole. Similarly, if you read all the books on this shelf, you'd come to the conclusion that murder was a failure. But bless you, it's always the failures that make the noise. Successful murderers don't write to the papers about it. They don't even join in imbecile symposia to tell an inquisitive world 'What murder means to me' or 'how I became a successful poisoner'. Happy murderers, like happy wives, keep quiet tongues."

#24 ::: albatross ::: (view all by) ::: October 06, 2009, 01:25 PM:


And yet, observation of friends and family also has problems, along the lines of "Nixon can't have won--nobody I know voted for him!" Judging from my friends and family, the average American couldn't stand Bush, thought the Iraq invasion was batshit nuts, wishes the war on drugs would go away...and also has a graduate degree, and a house packed with books. But I'm not sure this reflects the nation as a whole....

#25 ::: Claude Muncey ::: (view all by) ::: October 06, 2009, 01:33 PM:

A generalization from an instructor or mine some years ago that fits my experience since. He said there were three groups of prisoners.

The first are the innocent. This is more common in jails where there are lots of pre-trial detainees that have been denied or can't afford bail. You do get them in prisons though. In most prisons it's a very small group -- the great majority of inmates are there because they did something. One problem working inside is that the innocent tend to get lost in the larger group of those claiming to be innocent.

The second are the serially stupid, the group that Tey was talking about. Her description is apt enough, but you do need to note how affective agression plays a role as well. This is the great majority of prisoners, at least male prisoners. (Women inmates, especially long term inmates, are a different group entirely.) When you work inside, the first two groups make up most of your routine.

The third group are the predators. Whether as a learned set of behaviors and perspectives, or as a result of any of a list of psychoses (the current favorites tend to be APD and NPD with some preferring the more traditional psycopathy or sociopathy), members of this group seem to see other people as either competitors or prey. Inside prison this will include the staff, other inmates, and you. Predators are not always habitually violent, but sometimes are unbelievably persuasive. Make your own generalizations about corporate management and political officeholders.

I add a fourth group based on experience: the mentally ill. Some develop problems once inside due to stress or isolation. But there is a growing body of inmates who have had substantiall mental problems for some time before incarceration, and got in trouble largely because of their illness. A couple of years ago Harpers Index cited that we instituionalize about the same percentage of the population due to mental illness as we did 50 years ago. The difference is that the majority were in mental institutions of various kind back then, but are sent to prison now. In California, almost all the newer prisons (built mid-80's or later) were built with no provision for mental health diagnosis or treatment. One of the two big lawsuits that may result in a Federal population limit for these facilities concerns mental health treatment and the inability of the California prison system to adequately treat mentally ill inmates after nearly 20 years of trying under court supervision.

#26 ::: Tazistan Jen ::: (view all by) ::: October 06, 2009, 01:47 PM:

albatross @ 24 - I kind of want to live in that country . . .

#27 ::: David Dyer-Bennet ::: (view all by) ::: October 06, 2009, 01:50 PM:

Albatross@21: I think for murderers it depends a lot. I've seen statistics claiming that they're the BEST risks for parole, they very rarely re-offend. This ties in rather well with the idea that the "serial killer" is a very special and rare beast indeed. (That leaves a few cases like gang warriors and professional hitmen who actually are likely to reoffend.) Most murders are crimes of passion in extreme circumstances, and the perpetrators aren't that likely to encounter the same situation again.

This is annoying, since I still consider murder to be fairly serious on the overall scale of things, and prefer the concept of keeping them locked up for a long, long time.

#28 ::: David Dyer-Bennet ::: (view all by) ::: October 06, 2009, 01:54 PM:

I'm surprised that "three strikes" laws are so unpopular. I can see some of the bad examples cited in opposition to them as having weight, certainly, but overall it seems to me that it takes considerable dedication to manage to be convicted of *three* felonies arising from separate events. LOTS of statistics show things like 30,000 crimes a year being committed by the 300 worst actors in a medium-size city, and nearly all of them have more than three felony convictions already. It really seems to make sense to get them out of the wild.

One thing that's a bit of an issue here is "felony creep"; felonies aren't mostly serious crimes any more. Maybe if we fixed that first?

And got rid of the drug laws, of course.

#29 ::: David Harmon ::: (view all by) ::: October 06, 2009, 02:06 PM:

DDB #28: Well that's the thing -- a "three strikes" idea presumes honest umpiring, but that just isn't there. Instead, it's just another layer in an assortment of "gotchas", such as elevating petty offenses to felonies based on "repeat offense", "parole violation", "Eeevil drugs", etc..

#30 ::: Charlie Stross ::: (view all by) ::: October 06, 2009, 02:38 PM:

If I remember correctly, the poster child for why three-strikes laws are a Bad Idea was the first guy to pull one in California. His third strike offense was ... stealing a $1.99 slice of pizza. It turned out to be a felony because (a) he was a previously convicted felon, and (b) he barged past someone on his way out the shop, making physical contact in the process, which met the legal definition of assault. Add grandstanding prosecutor wanting to be the first to trigger the new law ("I'm number one!") and you end up with a $1.99 misdemeanour that is going to cost the state of California $50,000 per year for the next 30 years.

The real moral here is that mandatory sentencing sucks, piling secondary offenses on top of the initial cause of arrest sucks, and grandstanding prosecutors suck.

#31 ::: Charlie Stross ::: (view all by) ::: October 06, 2009, 02:45 PM:

Let me give a concrete example of why it's better to prosecute the lesser crime:

Here in the UK, we got rid of the death penalty for murder in the 60s, but it lingered on the books until 1999 or thereabouts for some exotic and archaic crimes -- high treason, piracy on the high seas, setting fires in naval shipyards (in the time of sail, a major tool of sabotage), playing hide-the-trouser-snake with the heir to the throne's wife, and so on.

In 1991 or thereabouts, a gaggle of students were on their way home from the pub one night in Portsmouth. One of them, having smoked a cigarette down to the filter, chucked the fag-end over a stone wall as he proceeded on his way. Naughty, you may think: and indeed, the cigarette butt landed on a pile of oily rags and started a small fire and the police took an interest. They caught up with the students and hauled them off to cells, and while they were sleeping it off the cops had a look in the rule book and found something unusual to charge the litterlout with.

When it came up in Magistrate's court the next morning, the magistrate took one look at the charge sheet, went ballistic, gave the smoker an absolute discharge (he'd spent a night in cells: sufficient for littering, one might think), then threatened the desk sergeant with physical bodily harm if he ever, ever pulled that stunt again.

If it had happened in California, given the way things work there I bet that student would have ended up on death row for arson in the royal dockyard ...

#32 ::: Michael Bennett Cohn ::: (view all by) ::: October 06, 2009, 02:52 PM:

Claude Muncey: I find it interesting that none of those four categories include a group of which there are many members: sane, smart people who made a conscious decision to violate the law, and got caught.

One friend of mine in particular comes to mind. He spent a few years in prison for selling LSD. He was not innocent, his intelligence is far above average (true, he didn't outwit the police, but smart people make mistakes), he's not mentally unbalanced, and he's certainly not a "predator." In his post-prison life, he's become a respected professional artist and educator. And it's not because he was "rehabilitated." He's just not in prison anymore.

My friend did what a lot of intelligent non-law-abiding people do. He made a personal assessment of risk vs. reward, taking into account his own priorities in life and his own morals and values, as well as his own relationship to society and the powers that be within it. And he decided to break the law, and he got caught.

It's easy (too easy) to say that he's "stupid," without knowing anything about his background, or the other opportunities available to him at the time, or his talents, priorities, and ambitions.

Were people arrested for running speakeasies during prohibition "stupid"? What about slave liberators, or soldiers court-martialed for refusing to fight. Or, let's talk about criminals who are less sympathetic to the general public, but nonetheless defy these categories: Accountants who embezzle. Officials who take bribes. Murderers who decide to take justice into their own hands, because they have decided that the system isn't working, and who commit their crimes knowing they'll end up in prison.

I think that the reasoning in the linked article is naive. For some people, there is honor being at the top of the law enforcement priority list. Assuming that people who don't share your core values are "impulsive children" may be comforting, but it's not likely to be productive.

#33 ::: Lexica ::: (view all by) ::: October 06, 2009, 03:30 PM:

Charlie Stross @ 31: If it had happened in California, given the way things work there I bet that student would have ended up on death row for arson in the royal dockyard ...

It sounds as though you think it's unreasonable to have strict penalties for carelessly discarding a burning cigarette butt. Is that accurate?

Because as a Californian looking at the latest wildfire (alight for more than a month; 160,000 acres/250+ square miles burned; more than 90 homes destroyed; 2 firefighters killed; firefighting costs estimated at US$70 million), I strongly, strongly disagree.

How on earth does an anecdote about drunken students starting a small garden fire and being charged appropriately generalize to "California's penalties for starting fires are too strict"?

#34 ::: Lee ::: (view all by) ::: October 06, 2009, 03:40 PM:

David, #27: This is one of the reasons why I would like to see our justice system focus more on people who have a recurring history of violent crime, whether or not it includes killing anyone. Getting those people locked up with no chance of parole would do much more for our quality of life than focusing on murderers.

And if push came to shove, I'd like to see the same done to professional fraudsters as well.

Michael, #32: Good point.

#35 ::: pericat ::: (view all by) ::: October 06, 2009, 03:53 PM:

Lexica @ 33

You've seriously misread Charlie's comment, which had to do with gaming the system, and how a prosecutor in California did so in working a two dollar theft into a 3rd-strike felony, and was rewarded for it. Conversely, in the UK, police who attempted a similar gaming were slapped down hard by the magistrate hearing the charge.

Nothing about California's fire-starting laws. Not a smidgeon. Honest.

#36 ::: Lexica ::: (view all by) ::: October 06, 2009, 04:51 PM:

pericat # 35 — thanks, that makes it clearer.

I think that just as jokes about rope are likely to be received badly by relatives of the hanged, analogies about fires in California may well be misinterpreted (badly) by Californians when there's a wildfire currently burning.

Apologies for misinterpreting the intention of your comment, Charlie.

#37 ::: Charlie Stross ::: (view all by) ::: October 06, 2009, 05:21 PM:

No problems, Lexica. The UK is ... not noted for forest fires. Tends to be a little too moist, climate-wise. (On the other hand? Charging someone who carelessly litters with a mandatory-death-penalty offense -- the 18th century equivalent of a terrorist attack on a naval base with weapons of mass destruction -- is a little over the top by any standards.)

#38 ::: Bruce Cohen (SpeakerToManagers) ::: (view all by) ::: October 06, 2009, 05:25 PM:

As I understand it, most of the increase in prison population in the US is the result of drug-related arrests and similar, not necessarily even involving any violence. According to all the statistics I've seen in the last decade, the violent crime rates in the US have all been going down on average over the last couple of decades, despite the popular perception of the reverse.

And there is something seriously wrong when prison populations are so badly skewed in racial proportions from that of the general population. On top of which, the prison system is being steadily converted to a for-profit industry, which provides motive (and lobbying money) to increase the number of prisoners no matter what their danger or lack thereof to the community.

I believe that the law enforcement / justice / corrections system in the US is seriously broken, and that simply changing laws won't be sufficient to fix it. There are serious problems with police forces in general¹, the application of the laws in the courts², and the environments in prisons³ that also need to be solved. But the current political climate in the US won't allow those problems to be objectively discussed, let alone fixed.

1. Poor selection of officers, insufficient and/or bad training (particularly in how and when to use force on a suspect), incredibly bad interrogation techniques and detective work.
2. The "adversary" system that makes it the prosecution's job to get a conviction at any cost, and the defense's job to get an acquittal, ditto. The glut of court cases that results in strong pressure to cut deals, so that the defense can claim victory by cutting the defendant's prison time, rather than getting him or her off.
3. I can't find any useful polls just now, but my distinct impression is that there are a lot of Americans who believe that anything bad (rape, assault, murder, HIV infection) that happens to someone in prison is deserved, and that we shouldn't pay money to keep prisoners healthy. It's certainly the case that conditions in our prisons are not conducive to rehabilitating those offenders who could learn to change their behaviour.

#39 ::: Charlie Stross ::: (view all by) ::: October 06, 2009, 07:20 PM:

Bruce: note the tendency of schizophrenics to self-medicate with whatever comes to hand. For example, a recent study reported on in Scientific American noted that 85% of diagnosed schizophrenics smoke, compared to 10-20% of the general population: nicotine helps a little (at first) with the symptoms. I'd bet money that the correlation between cannabis consumption and schizophrenia is a causal link, but not in the direction drug warriors want it to be: rather, cannabis damps down the symptoms a little, so schizophrenics self-medicate.

Now note the proportion of the prison population (in the USA or the UK) with mental health problems. What explanatory hypothesis leaps to mind ...?

#41 ::: Alan Bostick ::: (view all by) ::: October 06, 2009, 07:54 PM:

The problem with Klieman's work is that it, like the prior understanding that it critiques, assumes that the purpose of the law enforcement and criminal justice systems is to contain and minimize crime.

Here in the USA, at least, the LE/CJ systems have another important, if covert, function: maintaining racial hierarchy and white privilege in post-Jim-Crow America.

The twin hysterias about law and order and the war on drugs emerged and grew at the same time as the Warren court and its successors dismantled the legal foundations of segregation. The war on drugs is fought largely in African-American communities, with devestating effect on those communities.

No attempt to reform the criminal justice system can result in genuine improvement unless it addresses the system's role in maintaining the contemporary American racial order.

#42 ::: HelenS ::: (view all by) ::: October 06, 2009, 08:00 PM:

I don't know if anyone's interested, but here's the clemency hearing for a guy who was convicted under a three-strikes law here.

His "third strike" involved attempting to steal a wallet (a crime that these days would no longer count for a third strike at all). The owner of the wallet was completely appalled at the sentence. See

#43 ::: Matthew Daly ::: (view all by) ::: October 07, 2009, 08:58 AM:

Six months ago, I sat on a jury that convicted a guy for CPW (which was discovered when he accidentally shot himself). After the trial, the judge revealed to us that it was his third strike and he was looking at 15-25. It's not my call as a juror, but as a citizen I'm choking a little.

It's all a matter of framing. If a judge and a DA say "We got a habitual offender sentenced to 25 years behind bars," I am relieved. If they says "We consigned the state to spend a million dollars holding a habitual offender," I'm going to ask just how dangerous the guy was because I can think of things I'd rather spend a million dollars if it isn't absolutely necessary. I'm sure that the cost-benefits analysis works out some of the time, but I'm just as sure that we really don't have a rational understanding of the value of incarcerating someone who committed a specific crime, and "three strikes" laws remove even what little rationality had been built into the system.

#44 ::: David Harmon ::: (view all by) ::: October 07, 2009, 10:41 AM:

Matthew Daly #43: Well, yes -- the whole point of mandatory-minimum laws is to tie the hands of any judges or juries who might otherwise add an an element of sanity, much less mercy. After all, the Legislature has decided that Those People Belong In Jail, and they don't want backtalk from some mere judge, much less from the unwashed rabble of the citizenry.

#45 ::: KayTei ::: (view all by) ::: October 07, 2009, 10:49 AM:

Alan Bostick @ 41

Sounds at least plausible, and I'm not tone-deaf to the strong racial bias within our justice system, but are you aware of any sources that go into depth on that particular timing juxtaposition v. the Warren Court, or is it your own observation... ? I'd be interested in seeing it drawn out in a bit more detail, somewhere where my sketchy grasp on political history & timelines won't bog down the conversation.

#46 ::: Lila ::: (view all by) ::: October 07, 2009, 11:17 AM:

Claude, re institutionalization of people with mental illnesses: don't forget nursing homes. A recent study found that more patients are admitted to nursing homes with a diagnosis of mental illness (depression, bipolar disorder, schizophrenia or anxiety disorder) than with a diagnosis of dementia. (My recent experience working in 2 nursing homes bears this out with regard to schizophrenia and depression.)

#47 ::: Fragano Ledgister ::: (view all by) ::: October 07, 2009, 11:53 AM:

Alan Bostick #41: Add "and Hispanic" after "African-American".

#48 ::: will shetterly ::: (view all by) ::: October 07, 2009, 02:06 PM:

Fragano Ledgister @47: Add "and poor whites" after "and Hispanic." Because if you compare the racial proportions for poverty and incarceration, including the folks on death row, they're remarkably consistent. (The drug war, on the other hand, shows an astonishing racial bias that may have to do with urban poverty, which is heavily black, versus rural poverty, which is heavily white and Hispanic, but until I find a convincing source, I'm comfortable with the conclusion that the drug war is just fucking racist as hell.)

#49 ::: Cynthia Wood ::: (view all by) ::: October 07, 2009, 02:50 PM:

I had personal experience of someone who went down on a three-strikes law in Georgia. It seemed very odd to me. Dude was an opportunistic thief. He had no job skills worth squat and was not at all bright, so he was chronically broke and didn't have any compunctions about appropriating anything that wasn't nailed down. Some job skills training and a little assistance getting on his feet would have done everyone a lot more good than locking him up for life. Neither he nor his wife seemed to have any clue how to manage in the work world, and lurched into petty crime more from trying to survive and lack of clues than real criminal intent. I wouldn't be at all surprised if she were also locked up for life now for basically the same pattern.

#50 ::: Xopher ::: (view all by) ::: October 07, 2009, 03:37 PM:

Three Strikes laws are just another example of how the Republicans aren't actually against taxing and spending; they just want to tax different people and spend on different things. You tax middle class and poor people in their model, and give the money to rich people and corporations.

Three Strikes laws sound good to the masses, but all they are in reality is a way to keep shoveling money into the for-profit prison industry.

I think we need a Constitutional amendment banning for-profit prisons. In fact, I think it would be good if prisons were legally mandated to run at a loss. Watch the incarceration rate drop then!

#51 ::: David Dyer-Bennet ::: (view all by) ::: October 07, 2009, 04:48 PM:

Cynthia@49: The population is widely convinced that "life skills" training doesn't help. The studies I've seen on it generally agree with that; they show very minor short-term improvements, and when studied at longer periods, very little improvement.

When parents are failing in their duty to do this, I'm not totally opposed to the state stepping in. If it works it's certainly cheaper; prevention is cheaper than cleanup in general, especially if you include non-monetary costs. And turning some lives around is worth a fair amount of money to me anyway.

But we pushed rather far this direction in the 60s and 70s, and the results seemed to most people to be terrible.

I don't believe in "throwing people away". But I don't believe in taking people over and remaking them in my desired image, either. The dangers of this direction get greater as our psychological skills increase, of course. Freedom has to include the freedom to fail.

#52 ::: Charles Pergiel ::: (view all by) ::: October 07, 2009, 10:49 PM:

Drugs. Watchya gonna do? Suppose they were legalized. A lot of this illegal gang activity would go away, or would it? All those unemployed people looking to make a living would be looking for some other line of work. Robbery maybe, or dumping toxic waste. And drugs would be sold by soulless corporations and the prices would be low, low, low. But I'm sure other horrors would soon follow. Anyway, it's a moot point. Drugs are never going to be legalized. There's too much money in keeping them illegal.

#53 ::: hamletta ::: (view all by) ::: October 08, 2009, 01:47 AM:

Xopher, I'm with you. There are certain functions that shouldn't be run for profit, like schools, health care, and prisons. Just think of the corrupt juvenile court judge in PA who was getting kickbacks for sending kids up the river to his cronies' "facility."

As an aside, I used to work for a company that was probably a tax shelter for the guy who founded Corrections Corporation of America (long since booted from the board). He was a weird unit.

#54 ::: John Stanning ::: (view all by) ::: October 08, 2009, 05:07 AM:

Hamletta #53 : There are certain functions that shouldn't be run for profit, like schools, health care, and prisons.

I’m not sure that I’m with you on that.

In the UK, where I am, there’s a lot of discussion right now about the Swedish experience with for-profit schools, which is said to be good (there’s a recent article here from the Guardian, a left-wing British newspaper).  And the Swedes are generally what Europeans call ‘socialist’ which is, of course, far to the left of anything that any US administration would dare even to think of.  So if even Sweden can accept for-profit schools, why shouldn’t the rest of us?

Instinctively I agree that some public functions shouldn’t be run for profit, yet I find that I can’t make a clear argument to support my instinct.  What’s the principle that says that public services (or some public services) should be provided by government employees?  Greed and corruption aren’t exclusive to evil capitalists – they’re found in government-operated services, I would have thought, just as much as in private business.  And we don’t seem to have a problem with using tax-payers’ money to pay private companies – often big corporations – to produce drugs for public health care, or to clean hospitals, or to build highways and public buildings and weapons and airplanes for the armed services.  So – with proper regulation and oversight – why not let them run schools?

#55 ::: albatross ::: (view all by) ::: October 08, 2009, 10:39 AM:

I think the problem with private prisons is not the private part, but rather the ugly incentives for lobbying and PR campaigns. A company that runs prisons profits from harsher sentencing rules. In a similar way, correctional officers' unions profit. And I believe both groups have been involved in campaigning for three strikes laws and other mandatory minimum laws. An older system used prisoners as slave labor, and created the same kinds of nasty incentives, along with being a nice way of more-or-less re-enslaving troublesome black men in the South.

I hate the idea of taking human discretion out of sentencing decisions. And yet, there are cases where the sentences seem insanely light given the crimes, and where career criminals return to the streets to keep victimizing people again and again. I'd like a way to prevent that, too. (Here in Maryland, we seem to have a fair number of cases where the sentences appear, based on media descriptions of the crimes, to be insanely light. I especially liked the gang member who murdered his pregnant girlfriend to keep her from testifying, and got the minimum allowed sentence, rather than life without parole.

As someone pointed out above, a big problem here is that prosecutors game the system, in order to make deals[1]. If I can threaten you with your third strike and life in prison for this crime, then I can almost certainly get you to plead guilty to some lesser thing, or provide whatever evidence I would like to have on some other case. (ISTR that a fair number of people have been convicted of serious crimes partly on "jailhouse confessions" reported by other criminals, who themselves were facing harsh punishment if they didn't make themselves helpful to prosecutors. This seems obviously nuts to me.)

[1] I'm sure the sex offender registry is used this way, as well. Plead guilty to smaller crime X, and I'll drop charges on the one that would put you on the registry for the rest of your life.

#56 ::: David Dyer-Bennet ::: (view all by) ::: October 08, 2009, 10:47 AM:

John@54: Two things make comparisons across such different cultures problematic.

First, a corporation made up of Swedes operating in Sweden might very well behave differently than a corporation of Americans operating in America. And, not quite a separate point, it may be that with cultural resistance to some forms of bad behavior, it takes longer there for the perverse incentives to produce bad outcomes in this case.

Second, government does seem to be more transparent and accountable than corporations. It may be that some things are important enough, or prone to corruption badly enough, that that's important. I can do a lot more to get a guy I think does bad stuff off the Board of Education than I can to get a guy off the board of directors of the corporation running a school.

(Many libertarians, a group I somewhat associate myself with, seem to think they have more influence on corporations than on government. It IS true that in many cases you can take your business to a different corporation, and it is true that many of the things corporations do to limit that consist of exploiting the power of the government through regulatory capture. But a private corporation on contract to the government is, I think, a particularly perverse case that's rather hard to do anything about.)

#57 ::: John Stanning ::: (view all by) ::: October 08, 2009, 11:28 AM:

DDB #56 : you’re probably right that the cultures don’t read across.  For example, in the US judges and prosecutors (and police chiefs) are often elected, which seems weird to most Europeans.

government does seem to be more transparent and accountable than corporations
But over on the Boing Boing commenters party like it’s October 2001 thread there are lots of comments indicating lack of transparency, and inability to hold government and government agencies to account, especially police.

In the UK model, wherever services are privatised, or part-private-part-public, there’s an independent regulator whose job is to deal with people who do bad stuff, and to keep everyone up to standard.  For example, the education regulator OFSTED sends round inspectors to all schools, whether public or private.  There’s an independent Inspector of Prisons and an independent police regulator whose name I forget.  “Independent”, of course, means non-political and not subject to the whims of the governing party or of the media.  Whether the regulator does a good job (many say OFSTED doesn’t, especially schools who fail their inspections) is beside this point:  the important thing is that the regulator must exist, and must be independent, and be seen to be independent, and must have teeth to bite anyone who gets out of line, including anyone who games the system.  In the UK culture that can be more-or-less achieved;  perhaps in the US culture it’s more difficult.

#58 ::: Earl Cooley III ::: (view all by) ::: October 08, 2009, 01:40 PM:

In the US, the "regulator" is the lobbyist who gives and receives cargo container loads of cash, independent of influence by protests from inconsequential demographic targets, without being prejudiced by the existence of laws regulating the industry in question except to the extent that those laws have been written by those same lobbyists and rained down upon the legislatures as a blessing of received wisdom.

Thus, our regulators are wise, independent and free of prejudice.

#59 ::: David Dyer-Bennet ::: (view all by) ::: October 08, 2009, 03:39 PM:

John@57: I don't find noting examples of problems in government transparency to say much of anything about relative transparency, though. The only way there wouldn't be problems to report is if things were "perfect"; for which I at least am not inclined to hold my breath.

This concept of a piece of the government which is somehow "not political" does not compute in American culture. If somebody is chosen, appointed, and paid by the government, he's part of the government, and that's political. If he can be fired by the government, even more so.

Federal judges, including the Supreme Court, are appointed for life here, but nobody would tell you they were "non-political".

#60 ::: Alex Cohen ::: (view all by) ::: October 08, 2009, 03:50 PM:

DDB@59: "This concept of a piece of the government which is somehow "not political" does not compute in American culture. If somebody is chosen, appointed, and paid by the government, he's part of the government, and that's political. If he can be fired by the government, even more so."

This just isn't consistent with the standard understanding of the word "political."

Is the fire department political? Is the registrar of deeds political? Is the Government Printing Office political?

These things can be affected by politics, sure, but so can anything. You can create a special meaning of the word political that tautologically means having to do with government, but it's not the common meaning of that word in American English. I think that usage clouds the issue and doesn't help the discourse.

You say it doesn't compute in American culture, but I doubt that most Americans think of fire departments as political.

#61 ::: Xopher ::: (view all by) ::: October 08, 2009, 03:58 PM:

What doesn't compute is that there can be any part of the government that is not political. Fire departments are not considered political, but they're also not considered part of the government.

Also, note the 'and' in "If somebody is chosen, appointed, and paid by the government." Firemen aren't chosen by the government, except in the same sense that teachers are. Since fire departments aren't part of the government, having the fire department select its employees disqualifies those employees as political.

#62 ::: Lexica ::: (view all by) ::: October 08, 2009, 04:15 PM:

Charles Pergiel @ 52: Drugs are never going to be legalized. There's too much money in keeping them illegal.

Over the years, I've come to be highly dubious about statements like "[x] will never happen." It's just too difficult to predict the future. When I was a teenager and becoming politically aware, if you had asked me, "Will the US elect a black president in your lifetime? What about a woman as president?" I would have said no, of course not, and what kind of starry-eyed idealist are you, anyhow?

I'm very pleased to have been wrong about the first point, and I hope to be wrong about the second.

And as for too much money to be made in keeping them illegal, there's a lot of money to be made in legalizing it. California has an estimated $10-15 billion of unregulated, untaxed cannabis sales every year. Cannabis users here have been voting to impose sales tax on cannabis sales already, so the state's already had that first taste...

#63 ::: Mark ::: (view all by) ::: October 08, 2009, 04:22 PM:

Xopher @ 61, the kind of civil service you're talking about is a thorny issue semantically and politico-logistically, if I may coin such an abomination.

The fire department hires its own, makes its own promotion decisions, disciplines and fires its own, up to a point - a literal point, the peak of the pyramid. Viz., the chief, hired by the mayor and/or city council. Within the organization? Presumably all personnel decisions are apolitical, based on competency at fighting fires and running the organization. There at the top, there is of course intense public scrutiny in selection of the chief, but if two equally capable candidates are up for the job, no one would be surprised if the candidate who devoted his free time to running the mayor's fund raisers last election gets the job rather than the one who didn't.

Does that mean the department is politicized? No and hell no. Fire marshals aren't going to ignore the fire code for politically important landlords and house fires will be fought just as hard regardless of the owner's voting registration. Firefighters regard their jobs, rightly, as just too damn important to let petty partisanship interfere (except during contract negotiations, but that's a whole 'nother post). However, the department does have to interface with the rest of city government, and that will unavoidably have political overtones, whether it's hiring the new chief or fighting over the budget.

#64 ::: C. Wingate ::: (view all by) ::: October 08, 2009, 04:55 PM:

re 56: One of the reasons I'm not a libertarian is that the decline and fall of a long list of late 20th century corporations shows that simply losing money is not much of a deterrent for bad/self-destructive behavior. I'm almost inclined to postulate that for-profit corporations are the least responsive organizational type to external pressures.

#65 ::: geekosaur ::: (view all by) ::: October 09, 2009, 10:18 PM:

Counterpoint: didn't the Bush Administration politicize a lot of departments usually considered to be more or less non-political?

#66 ::: Alex Cohen ::: (view all by) ::: October 09, 2009, 11:22 PM:

Geekosaur: Yes, that's precisely it. If you accept a definition of "political" that means anything with government, how do you describe what Rove did to the US Attorneys? I believe that what Rove did was wrong, and the only way to say it is that he politicized it, which implies that it wasn't political before.

And, you know, it wasn't.

#67 ::: albatross ::: (view all by) ::: October 09, 2009, 11:28 PM:

Mark #63:

I'm pretty sure a lot of those differences are cultural, and work differently in different fields. My not-too-informed impression is that the US has seen an unpleasant shift in the culture of police, toward greater militarization.

I suspect this is one of the things that confounds all kinds of simple descriptions and models of human behavior based on incentives or knowledge or checks and balances or whatever. The incentives might exist for some nasty behavior--for the judge to rule on purely partisan grounds, for the fire chief to let the house of the mayor's rival burn down, for the cops to hassle anyone who calls their behavior into question. But a strong culture of professionalism can resist those incentives, at least for awhile.

This suggests a pattern to look for, something that was horribly common in the Bush years, something we ought to also be watching for under Obama: When someone politicizes something that used to be non-political, or does some kind of power grab that's always been "simply not done" before, the justification is always that "hey, this has always been the perogative of the president or governor or whatever." That is, the justification is that they're not violating any formal rules, even if they're doing something that others had always refrained from. But often, they're expanding the realm of partisan offices, at the expense of reliably functioning, neutral government.

The extreme and depressing end of this is stuff like Bush v Gore, where the supreme court decided a political question on a party-line vote.

#68 ::: Leroy F. Berven ::: (view all by) ::: October 10, 2009, 02:14 AM:

Mark @ 63, albatross @ 67: In the US model, at least, there has long been a distinction between generic local politics at the (e.g.) fire department level, and higher-level partisan political activities.

In the former situation, you may have two (or more) competing models of what the (ferex) local FD should be doing, or what they should be doing first, in a particular type of emergency situation. This, generally, has no particular correlation to (again, ferex) liberal-vs-conservative conceptual policy issues, but CAN have a lot of local repercussions at the "why-did-you-decide-to-let-my-place burn" technical response level. ("The wind speed and direction ensured your place was toast, as soon as the first embers hit your roof from upwind." is likely to be accepted as a valid response, whereas "Your building was a symbol of oppression for the local proletariat, and thus we were inspired to let it burn." is rather less likely to be. Also, "You were a f***ing idiot for building your place with flammable roofing, rather than with one of the fireproof options." is pretty non-partisan in nature.)

OTOH, fire department response practices don't have much to do with either the higher-level specific politics of individuals, or of the ownership of any particular company, regardless of whoever's house (or business) happened to catch on fire tonight. Such higher-level politics tend to get played out at much more exalted levels, and generally don't involve the folks who actually do the nuts-and-bolts level work, except as occasional examples (for good or bad).

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