Wednesday, December 23, 2015

Should the United States adopt a different system from the current Opt-In system for organ procurement?

One of the more acknowledged problems in healthcare that receives some attention yet little is actually done about is the lack of available organs for transplant. Based on recent data at least 114,000 people in the United States are waiting for an organ transplant that will significantly increase their remaining lifespan.1,2 Unfortunately most of those waiting will die before receiving that desired organ due to the dramatic gap between the available supply of organs for transplant and those waiting for one.

To understand and appreciate the extent of this gap according to the Scientific Registry of Transplant Recipients (SRTR) between 2000 and 2009 the annual number of deceased organ donors (the most viable for most types of transplants) in the U.S. increased from 5,985 to 8,022 whereas the number of individuals waiting for a transplant increased from 74,635 to 111,027.3 In the first half of 2010s there was not significant deviation from this trend. Note that this increase in the waiting list occurred despite an increase in organ transplants. In either absolute numbers or relative percent change, there is an increasing gap between available organs and those who need them. While various aspects of biological research are working to create an environment where new organs can be grown in a lab with low rejection probabilities, thus significantly mitigating this supply problem, such a reality still appears to be a long way off. Therefore, should changes be made to the current organ donation system to speed the closure of this gap and save lives?

While each state has their own laws on organ donation the general model has always followed the Uniform Anatomical Gift Act (UAGA), which was first passed in 1968 and amended in both 1987 and 2006. UAGAs are created by the National Conference of Commissioners on Uniform State Laws (NCCUSL) as a means to create uniformity among states on various laws where uniformity makes sense due to a lack of special circumstances; however in the end states have the option to adopt, decline, or simply use the act as a skeleton for their own laws. The original 1968 UAGA established the general goal of organ donation as a system based on altruism through voluntarism due to the opt-in nature of the program and created legislative guidelines for donation of fetal organs and tissues.4

In 1987 the UAGA experienced two significant changes among other smaller changes: first it was amended to forbid persons from “knowingly, for valuable consideration, purchase or sell a part for transplantation or therapy, if removal of the part is intended to occur after the death of the decedent.” Second, a narrow form of presumed consent was added whereby a medical examiner could remove any needed organs or tissue in the absence of any objection by the decedent or decedent’s next of kin.5 This presumed consent addition was not unique for numerous states already had similar types of regulations in their organ donation laws mostly concerning cornea removal.

In 2006 the UAGA was further revised to remove the presumed consent regulations largely due to a number of lawsuits filed against those measures.6,7 Almost all states followed the pattern of the UAGA by either officially enacting its recommendations or making changes to their own state laws to flow in close proximity with its recommendations including the removal their own presumed consent regulations as well, with only a few states retaining very restrictive guidelines concerning cornea removal.6

As noted above while the idea of characterizing organ donation as an altruistic gesture is certainly a nice idea in theory, especially when 90+% of people support organ donation and 70+% of polled individuals would consider being an organ donor; in reality when only about 42% of U.S. adults are registered organ donors when lives are on the line, clearly theory and reality are in conflict.1,2

The difference between those who claim to be interested in being a donor and those who actually are donors suggest some significant problems with the opt-in system. One of the major issues appears to be physicians adhering to the wishes of next of kin to not harvest organs even though the decedent was an organ donor; a decision that makes no sense. Also there can be problems with organ procurement agents obtaining referrals from donors.7 A lack of public campaigning to raise awareness regarding the organ shortfall and the benefits of organ donation has also played a role in the lower than expected donor rates. Finally another less fixable problem is the psychological reluctance of most individuals to contemplate death and plan appropriately for it. This “kicking the can” strategy concerning death typically creates numerous problems when handling end of life decisions, including issues involving organ donation. So, if these are the problems associated with the opt-in system, what are other options that could increase the number of individuals willing to donate?

One way to close the gap and improve donation rates is to provide an incentive for individuals to be “altruistic” (the irony of having to provide incentives for individuals to be altruistic is somewhat hilarious). However, with the sale of organs illegal, incentives must be creative in a sense, but also be of significant value. Israel and Singapore are two countries that utilize a low-cost incentive program that involves influencing organ allocation. In the U.S. a national waiting list is maintained where transplant candidates are ranked largely based their overall health (how long they have left to live without the organ) and when their name was placed on the list. However, in the determination of who receives an organ there is no “bonus” to those who are donors. The priority rule or preferred donation system used by Israel and Singapore provides some level of preference to future donors over those who do not plan to be future donors.

For example in Israel potential organ recipients are rated on a multiple point scale and whether or not they are planning to be a donor is also part of that criteria.8 Additional consideration can be gained if a direct family member of a potential recipient has signed a donor card or has already donated in the past be it as a live non-designated donor or a deceased donor.8 In Israel this program largely arose from the perceived repugnant behavior that a number of individuals were willing to accept an organ transplant, but would never be willing to donate an organ even after death. For Israel this program, as well as other supplemental small incentive programs, dramatically increased the rate of organ donations, especially in its early years of its adoption 2011 and 2012.9

While the initial logic associated with the priority rule program appears sound, for it makes sense that future organ donors should receive some level of priority over those who do not plan to donate, there are some important issues. The first problem is the system in Israel is not legally binding in that an individual can agree to become a donor, but back out later. This type of system creates problems on both fronts because instituting a rule that once a person has agreed to be a donor then that individual can never withdraw from being a donor would see an immediate court challenge that would probably result in the elimination of such a condition. However, if the system remains as such one can simply declare donor intentions when it is advantageous and withdraw when it is no longer advantageous making a mockery of the system. One way to address this issue may be instituting a time limit where no benefits are acquired until an individual has declared donor intentions for at least x number of years, thus at least eliminating individuals who join solely for selfish short-term reasons.

The second problem is such a system raises potential moral questions when non-medical elements outside of time are introduced into the organ selection process. While on its face such a system appears to have a “tit-for-tat” characteristic, it would not be hard for one to produce a potential slippery slope argument. A common argument would be that the individual who agrees to become a donor is receiving some form of preferential treatment because he/she is offering something of value to the organ bank, replacing the used organ as well as offering others. Some could argue that in this environment how is it justified for an alcoholic poor person to receive a liver over a philanthropic millionaire? The millionaire provides dramatically more benefit to society if he/she survives over the alcoholic. While this argument should be irrelevant because the priority rule system only addresses organ donation specifically… sometimes certain parties just need a small window of opportunity to change a system significantly and the United States does not have a quality track record for societal fairness.

The third problem is such a system could be unconstitutional on the grounds that it would violate equal protection in that government could provide an organ to one individual over another based on non-medical factors. For a violation of equal protection it must be determined that the groups being compared are similarly situated otherwise government or another agency can apply different standards as long as those standards are not discriminatory.10 It is unknown how a court would rule in this case because providing a benefit only based on the notion that the receiver made a non-binding declaration of donation would require the court to determine the intent of the parties and whether that intent makes other groups distinguishable, which could potentially open a nasty can of legal worms.7 Any “perks” for donor kin would be an instant no-go because granting a benefit to someone simply on the basis of relation is inherently discriminatory.

The fourth and final major issue is would religious objections to organ donations cause problems for such a system in a discriminatory fashion? Initially it appears that religious objections should not cause a significant problem because discriminatory intent requires that the principal purpose of creating a law in the eyes of its creators be to produce discrimination; if the law is neutral and indirect discrimination is simply derived from its enforcement then no legal discrimination exists. This general legal structure was noted in Personnel Administrator of Massachusetts v. Feeney.11 However, while religious objections should not be a problem, religion can make these types of things more complicated.

Overall these potential issues do raise the question of the true value of changing the existing opt-in system to a priority rule donation system. So if a priority rule system is not preferred what other options remain? Another possible system for donor expansion removes the passivity from the opt-in system while maintaining its spirit, the mandated choice system.

Execution of the mandated choice system is rather straight-forward; when individuals over the age of 18 acquire or renew their driver’s license they are asked whether or not they wish to be an organ donor. This system attempts to maintain the altruistic characteristic of organ donation while eliminating the obligation of the potential donor to initiate the process to become a donor. Such a system has been utilized in both Texas and Virginia before other systems replaced them and is currently operating in Illinois, Colorado and California.12 Of course there are certain conditions that must be followed outside of simply asking “Do you want to be an organ donor.”

For example the American Medical Association has noted that in the mandated choice system the asked individual must be properly informed regarding the elements that are involved in organ donation to ensure that the individual understands the procedure and can be regarded as meeting the principles of informed consent.13 Also some might argue that a mandated choice system is not constitutional on First Amendment grounds in that an individual has the right not to speak and asking the question of organ donation without providing a means to simply not answer without consequence would be unlawful.

Realistically the First Amendment argument more than likely fails if the question embodying the mandated choice system is asked in a neutral manner with no legitimate attempt to favor a particular decision. With this condition in mind the question medium would more than likely have to be paper for one could interpret certain pressures upon an individual when asked verbally whether or not they want to be an organ donor. Such pressures are commonly associated with “being put on the spot”, which can favor a yes response over a no response, especially with a moral issue like organ donation and being asked by a government official (DMV employee). The question itself should simply ask “Would you like to make your organs available for transplant into other parties after your death?” or something similar, just a neutral question with no positive or negative overtones.

The success level of mandated choice programs have varied over time for both Texas and Virginia eventually overturned their programs because of strong negative reaction from the public including an increase in donation rejection in Texas up to 80%.14 Whereas in Illinois organ donation participants have increased to 60%.7 It is difficult to reconcile these two results. The best potential explanation may simply be political in the context of how individuals view government involvement in society. Both Texas and Virginia lean more conservatively and some may simply be offended that government even asks in the first place while the more liberal leaning Illinois is not offended by such behavior. Overall if this is the case then it is difficult to see how a mandate choice program would make significant in-roads towards increasing organ donation rates as potential increases in some places may be offset by other potential decreases in others.

The final major option to increase organ donation rates would be to simply return to the presumed consent days (i.e. Opt-Out over Opt-In), yet expand the program to include all organs not simply corneas or John/Jane Does. Clearly to ensure significant positive changes this presumed consent program would have to be hard/strong (after death if the individual did not opt-out then next of kin have no say in the issue of organ donation) versus soft/weak (next of kin can still reject organ donation for the deceased). Not surprisingly such a change could produce strong objections from some individuals for presumed consent/opt-out would in essence redefine the rule of who owns a deceased’s organs from next of kin to the government. Others would argue that such a policy poses a direct attack on individual liberty, autonomy and privacy by restricting freedom of choice, the very factors that some believe grant acceptability to an opt-in system.

The notion that an individual loses liberty, autonomy and privacy in an opt-out system is basically ridiculous. In short there is no threat to these elements in such a system because the individual has sufficient opportunity to declare their intentions to not be an organ donor while still alive. Once an individual dies the rights associated with liberty, autonomy, privacy, etc. are heavily handicapped, thus eliminating any meaningful violations in this circumstance.

Any minor opposition on the grounds that legislating altruism is not a responsibility of the government is a non-starter because the issue of establishing an opt-out system over the current opt-in system is a matter of public health due to the significant gap between available organs and individual need, not altruism and again there is no violation of personal autonomy because the individual is dead, thus the individual no longer possesses the capacity for autonomy.

Also some could argue that soft/weak presumed consent provide respect for the decedent’s relatives who are more than likely grieving the loss by allowing them to preserve the state of the loved one. However, there is a notion of hypocrisy in this idea for individuals in a presumed consent system can opt-out, thus why is it alright that the wishes of the next of kin supercede the wishes of the decedent if the decedent never opted out? Any “psychological” detriment born by the next of kin due to a hard/strong presumed consent system is the fault of their own selfishness and/or arrogance, not the system.

A more relevant issue is the question of next of kin property rights. Although it may sound grizzly, when an individual dies the body and its contents (in a sense) basically become property of the next of kin, especially with relation to burial rights. Some next of kin could challenge a presumed consent system on the grounds that it interferes with property rights or even religious services. However, in case of previous presumed consent laws, courts almost always side against such claims. For example in Tillman v. Detroit Receiving Hosp, a Michigan court ruled that the state’s presumed consent law for cornea extraction did not violate the privacy right of the decedent or her next of kin and the cornea removal did not constitute sufficient mutilation to void such action.15

However, one could argue that this case only involved cornea extraction not the extraction of numerous and various other organs, which would occur in a more thorough presumed consent system. While there certainly would be more incisions made in the individual, the individual would receive the appropriate remediation treatment through stitches and if properly dressed should have no significant mutilation or ascetical issues apart from an individual who simply had corneas removed.

Moreover pertaining to the issue of next of kin property, government should be able to utilize eminent domain to support the acquisition of the decedent’s organs. Eminent domain is the power of government to take private property for public use and while it commonly refers to land, it should also be applicable in a presumed consent environment when the individual did not choose to opt-out as a donor. Clearly in the case of a presumed consent environment the government would exert authority for the organs, but not the body, unless legally required.

How could the government manage the Takings Clause of the Fifth Amendment in such a scenario? Overall one could simply validate the acquisition of the organs under the “public use” requirement, for the organs are certainly going to be used for a “public purpose” through the increase of deceased organ donation rates resulting in more lives saved. From a standpoint of organ value, if one wanted to, realistically no monetary compensation could be expected. For the next of kin, who would own the organs, have a product with ephemeral functionality and due to the fact that one cannot legally sell an organ, a monetary value of zero dollars.

The ephemeral nature of organ functionality is important because it cannot be argued that the organs may have monetary value later due to a change in the law, thus compensation would be required to satisfy this potential future value. Therefore just compensation or “fair market value” is simply zero dollars. This reality is helpful because it avoid questions regarding organ value in the context of the various associated parties like the government, the next of kin or a potential recipient. However, while it can be argued that technically the government would not have to pay any monetary sum to the next of kin for the acquisition of the organs, it stands to reason that the government could make a small good-faith gesture tied to addressing funeral costs (i.e. 200-500 dollars).

A final initial question regarding a presumed consent system would be whether or not it actually increases the number of available organs. Official literature can be somewhat murky on this issue for some studies find that when controlling outside factors presumed consent does increase organ donations rates significantly,16,17 but others suggest that the casual link is not appropriate due to the level of heterogeneity that exists in transplantation systems throughout the world.19

The chief problem with analyzing existing systems is the lack of strong data regarding hard/strong presumed consent. Of the more studied presumed consent systems in Europe (Austria, Belgium, France, Italy, Norway, Spain and Sweden), only Austria typically sees genuine practice as a hard/strong presumed consent system whereas the others are either soft/weak or physicians almost default to a soft/weak system for various reasons.12 Unfortunately most soft/weak systems have few differences from an opt-in system, thus identifying any significant differences becomes quite difficult limiting the value of the analysis.

Interestingly enough the studies focus so much on potential confusion associated with multiple factors in the donation environment that they discard simple logic in that under a strong presumed consent system everyone who does not opt-out will become a donor upon death, thus it stands to reason that donation rates would significantly increase on two counts of logic. First, no one who has opted-in should opt-out, thus theoretically the worst a presumed consent system does is break-even. Second, studies have shown that most of the time people often choose the assigned default option, among various instances, possibly due to a lack of strong feelings or a lack of desire to spending the resources and time required to change the option.19-22

In the end among the three major donation methods, beyond opt-in, that could potentially increase the number of available organs for transplant, all three have their positives and negatives. Priority rule systems incentivize the donation process, but have numerous holes in how this incentive is effectively applied and could have a number of potential constitutional issues associated with their application. Mandated response systems are able to effectively transfer the initiation of the donation process from the individual to the government significantly eliminating situations of ignorance to the existence and operation of the donation system. However, there are questions to how effective such a system is in actually increasing the available number of organs for donation. Presumed consent systems increase the available number of organs as well as do not appear to have any obvious legal issues, but must address elements of methodological opposition largely brought on by government paranoia and contempt in some camps as witnessed by the failure to establish such a system in New York, Illinois, and Colorado.

Overall it appears that a presumed consent program is the best option for quickly increasing the total number of available organs for transplant, but pursuit of this strategy must involve a strong commitment to establishing such a system over the personal objections of a number of individuals despite the ability to opt-out.

Citations –

1. 2012 National Donor Designation Report Card by the Donate Life America:

2. 2013 National Donor Designation Report Card by the Donate Life America:

3. Scientific Registry of Transplant Recipients 2012:

4. Uniform Anatomical Gift Act (1968).

5.Revised Uniform Anatomical Gift Act (1987).

6. Revised Uniform Anatomical Gift Act (2006).

7. August, J. “Modern Models of Organ Donation: Challenging Increases of Federal Power to Save Lives.” 394 Hastings Constitutional Law Quarterly Vol. 40:2 393-422.

8. Lavee, J. “A New Law for Allocation of Donor Organs in Israel.” The Lancet. 2010. 375(9720):1131-1133.

9. Even, D. “Dramatic Increase in Organ Transplants Recorded in Israel in 2011.” Haaretz. Jan. 12, 2012.

10. Vacco v. Quill, 521 U.S. 793, 799. 1997.

11. Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256. 1979.

12. Rodriguez, S. “No Means No, But Silence Means Yes? The Policy and Constitutionality of the Recent State Proposals for Opt-Out Organ Donation Laws.” FIU Law Review. 7:149-186.

13. AMA Recommendation. Opinion 2.155 – Presumed Consent and Mandated Choice for Organs from Deceased Donors. American Medical Association.

14. Siminoff, L, and Mercer, M. “Public Policy, Public Opinion, and Consent for Organ Donation.” Camb Q Healthc Ethics. 2001. 10(4):377-86.

15. Tillman v. Detroit Receiving Hosp., 360 N.W.2d 275, 277. 1984.

16. Hawley, Z, Li, D, and Schnier, K. “Increasing Organ Donation via Changes in the Default Choice or Allocation Rule.” Journal of Health Economics. 2013. 32.6:1117-1129.

17. Abadie, A, and Gay, S. “The Impact of Presumed Consent Legislation on Cadaceric Organ Donation: A Cross-Country Study. Journal of Health Economics. 2006. 25.4:599-620.

18. Boyarsky, B, et Al. “Potential Limitations of Presumed Consent Legislation.” Transplantation. 2012. 93.2:136-140.

19. Samuelson, W, and Zeckhauser, R. “Status Quo Bias in Decision Making.” Journal of Risk and Uncertainty. 1988. 1(1):57-59.

20. Madrian, B, and Shea, D. “The Power of Suggestion: Inertia in 401(k) Participation and Savings Behavior.” Quarterly Journal of Economics. 116(4): 1149-1187.

21. Johnson E, and Goldstein, D. “Defaults and Donation Decisions.” Transplantation. 2004. 78(12): 1713-1716.

22. Gäbel, H. “Donor and Non-Donor Registries in Europe.” Stockholm, Sweden: on behalf of the committee of experts on the Organizational Aspects of Co-operation in Organ Transplantation of the Council of Europe. 2002.

Tuesday, November 24, 2015

What are Mars Analogue Missions Really Studying?

While various parties argue back and forth about whether humanity has progressed far enough technologically to colonize Mars, technology alone will not determine the success of such a venture. Interpersonal relationships and how the first colonists are able to work together to augment their strengths and mitigate their weaknesses will also be an incredibly important element in producing success. With this in mind NASA and other space-based organizations have undertaken occasional training experiments or analogue missions in an attempt to simulate a mission to Mars. These missions typically take place in specific locations in Hawaii or Antarctica, which are suitable for simulating Martian environment as far as Earth can simulate Mars; however, do these analogue missions have the appropriate goals and tasks for the participating individuals to properly simulate a Martian colonization party?

The major goal of these simulation experiments is to access how different individuals interact with each other over a fixed continuous time period in a confined space, simulating conditions in both travel to Mars and after landing, in effort to understand and predict potential positive and negative behavior among the colonizing party. However, the environment these individuals are commonly thrust into is not similar to that which will be faced by the initial colonists. While the inside habitat-outside habitat transition is properly simulated through the use of space suits, the activities of the participants within the habitat are more focused on specific scientific studies, not on building and developing the operational structure of the shelter. In short these experiments focus too much on simulating a developed Martian habitat versus a developing one.

For example one of the first major issues for a Martian colonization mission is that there is little to no food growth on site. The first colonists will bring a significant amount of food with them when first traveling to Mars, but almost every expert is in agreement that the development of some means to grow sufficient amounts of food on Mars will have to occur soon after arrival for it is too costly to continue to re-supply from Earth. Unfortunately these simulations experiments do not appear to be modeling this critical element for Mars colonization. This lack of planning is a missed opportunity because there are questions to what is the most effective way to grow food on Mars and various simulations starting from scratch could produce important information to determining which method would be the most successful in a real colonization mission. Every scientist and engineer knows that laboratory simulations/conclusions and in-field simulation/conclusions can differ radically.

One of the sub-questions on this issue is what type of food growth system would be optimal for Martian colonization both in the interim and for expansion. Various options, such as hydroponics, aquaponics, aeroponics, cultivating Martian soil, etc. exist and analogue missions would be an effective means to produce higher quality costs, effort and efficiency estimates of these system, both alone and in cooperation with each other, apart from ISS analysis and laboratory hypotheses. Aeroponics is NASA’s leader in the “clubhouse”, but would it work well as the initial on-site food provider for the first Martian colony?

Furthermore due to the significant reduction in gravity on Mars, colonists will have to engage in a rigorous exercise program to reduce the potency of negative physiological effects associated with the loss of this gravity. Simulating the necessary exercise in these analogue missions cannot help study how it influences health on Mars due to the lack of similar gravity, but it can help study how such levels of vigorous exercise would influence energy levels and food consumption along with interpersonal relationships. Unfortunately this potentially valuable information is not acquired in these simulations because the participants are not instructed to exercise in such a way.

Another important connective element that is lacking in these simulations, due in large part to the lack of these above elements, is the changes in stress that would accompany this behavior and these goals. While it is not ethical to emulate the life threatening conditions that failure would bring, general failure to complete necessary tasks would create tension and stress through challenges to the pride of the individuals involved, thus would better emulate real Martian colonization conditions. In these moments of stress, potential problems within the group dynamics can be identified that would not exist when stress levels were not increased leading to a better understanding of how to manage failures in the real colonizing party.

In the end analogue missions are important for various reasons and while human factor elements are certainly important to study and general simulation research strategies have their place, there needs to be more simulations that mimic what colonists will experience when first landing on Mars to better create a methodology regarding how to maximize success for the Martian colonization mission. Overall without expanding the scope of analogue missions to reflect the realities of Martian colonization, one wonders what the point of conducting these missions in the first place actually is, for they are certainly not preparing colonists for the most important part of the colonization, establishing the environment and behaviors to increase the probability of long-term survival.

Friday, November 13, 2015

Wanted: Reasonable and Intelligent Gun Policy

One thing that cannot be argued is that the number of gun deaths in the average year in the United States, including various mass shootings, has demonstrated that current gun policy does not work. The delusional idea harbored by some members of the National Rifle Association (NRA) that an effective means to address gun violence, which would involve weakening existing gun laws in effort to arm more “good guys” with firearms to combat the bad guys, demonstrates a genuine lack of intelligence and/or caring for the problem. While the specific intricacies of gun policy are better left to those with more experience, there are certain elements that appear to be “no-brainers” of sorts when producing effective and meaningful gun policy in effort to limit the number of violent gun-related deaths.

Clearly the lingering holes in the requirements for legally required background checks are unacceptable in any reasonable gun policy. Private sellers, i.e. individuals who “claim” they are not engaged in the business of selling guns, should be required just like all licensed federal dealers to perform background checks outside of legal gun transfers to other direct family members (i.e. father to son, sister to brother, etc.). The reason most arguments that private sellers should not be subjected to performing background checks fall flat is that a vast majority of these transfers occur at gun shows or online where it is much easier for individuals who know they would fail a background check to acquire a firearm. It is a matter of public safety first and foremost; also there is no “right” to sell a gun without any type of legal condition or restriction. Overall there is no rational argument against requiring a private dealer to conduct a background check.

Another reasonable step in the right direction would be the repel of the Tiahrt Amendments, which make it much more difficult for authorities to access and use gun trafficking data to pursue criminals and prevent criminal activity, especially via a dealer that is knowingly and willingly violating the law. Eliminating the Tiahrt Amendments would allow authorities to require dealers to conduct inventory of their stock (more than likely annual accounts would be appropriate) to increase the probability that unaccounted for inventory is detected much sooner than currently occurs. Also federal agencies will be able to maintain completed gun background checks for longer than 24 hours increasing the probability that authorities discover, arrest and convict straw purchasers (i.e. individuals who commonly purchase guns for individuals that would not pass a background check).

Hmm, all of these changes seem completely reasonable, especially the last one for a background check is not like DNA, authorities will not be able to utilize an existing background check to “set-up” someone as a criminal when they are not one, to think otherwise is to simply give in to paranoia. Furthermore allowing the ATF to create an electronic database of gun records that is easily searchable will dramatically increase the ability of proper authorities to manage and address gun-related issues more efficiently especially criminal activity. As long as this database is not made public there should be no issue with its existence. Just as a point of note, most of these issues were addressed in both The Fix Gun Checks Act of 2011 and The Fix Gun Checks Act of 2013.

Another good policy choice is to expand to the federal level the procedures and policies contained within the Maryland Firearms Safety Act of 2013. While this policy has numerous positive and practical elements, one of the most important is requiring certification for firearms training before legally being allowed to purchase a handgun. Note that with this expansion the law would be akin to policy associated with the National Minimum Drinking Age Acts in that states would not have to abide by the law, but they would not receive certain levels of federal funding if failing to do so. Therefore, if state x did not want to legal mandate that residents had to have firearm certification training before purchasing a gun it would be allowed, but state x would also not receive some significant percentage of federal aid.

Arguments against the policy of this bill both in Maryland and to any federal expansion of it range from the paranoid to the ridiculous. For example one argument against requiring gun training for the purchase of a weapon has been to analogize it to requiring an individual to have training in public speaking in order to speak in public. It is rather self-explanatory to why such an analogy is foolish. However, for the sake of completeness why is this “point of argument” ridiculous? The chief difference between guns and speech is an issue of public safety. A significant portion of gun use results in negative public health consequences, including death, whether or not the acquisition of the gun was legal versus both the assumption and the reality that almost no portion of speech is expected to or produces negative public health consequences.

Also like the 2nd Amendment, the 1st Amendment is not universal in its protection, in that not all speech is protected. For instance one cannot falsely yell fire in a crowded theater or other venue nor can an individual use speech to incite a group of individuals to “string up” some Jews, Blacks or Christians, etc. Furthermore the use of speech occurs at a far greater level than that of gun use, thus making it far more inconvenient for both society and individual functionality to require public speech course requirements versus gun training requirements.

One widely used argument in favor of gun training licenses have been a comparison to automobiles in that if one has to have a license to operate an automobile it makes sense that one should have to have a license to purchase a gun. Opponents have countered this analogy by stating that one does not need a driver’s license to purchase a car, thus one should not need a license to purchase a gun. On its face this counterargument seems to have value, until looking deeper. It breaks down rather quickly in the realm of practicality for almost no one purchases a car without the intention of it being driven, either by the buyer or someone else, and the same logic is applied to a gun, who spends hundreds of dollars on a gun without the prospect of using it at some point in the future? The only common instance where the purchase of either a car or gun is made without the prospect of using it is for collector purposes, which entails older models. It would not be difficult to create a hard cap on a date of purchase; i.e. all guns older than 1970 or some other year decades ago, which would not require a license.

Others would stubbornly avoid the issue of public health and practicality and argue that gun purchase is a right, but car purchase is not, thus the above analogy is irrelevant because Maryland policy violates the Constitution. The problem with this counter-argument is that firearm purchase is not a guaranteed universal right, the courts, both of conservative and liberal leaning, have ruled numerous times that government in all its forms can place reasonable restrictions on arms purchase and possession. Requiring the acquisition of a training license for the purchase of a particular type of firearm in a clear and transparent way, with no additional requirements beyond existing current training methods, does not produce an unreasonable burden for the purchase of a weapon, which is exactly what the Maryland and federal courts have ruled regarding the Maryland law.

One point of interest is why pro-gun individuals are so knee-jerk against even reasonable and intelligent gun policy? The best possible explanation appears to be simply “slippery slope paranoia”. They believe that giving any type of power to the government to restrict access to weaponry for private citizens will eventually lead to an environment where government restricts access to all weaponry.

Of course such a belief is incredibly foolish on two separate grounds. On legal grounds this belief fails because the Supreme Court ruling in District of Columbia v. Heller basically created a floor regarding what the government can do with respects to limiting private access to weapons. On non-legal grounds if a tyrannical government ever arose in the U.S., the idea that private citizens would be able to effectively fight against it (and the U.S. armed forces) without vast levels of support from foreign nations is laughable and utterly delusional, thus any “restrictions” on private firearm access established by this new tyrannical government would be irrelevant. Overall all slippery slope paranoia is doing for pro-gun individuals is making them indirectly responsible for more people dying due to gun violence.

The issue of creating a training course is not a significant hurdle because numerous training courses of varying degrees already exist. The only additional requirement beyond the standard training course would be the necessity of live fire training. Basically to purchase a gun the training course would require individuals to fire that type of firearm, given if it has a different firing capacity. For example firing a Beretta is significantly different from firing a type of shotgun, but not significantly different from firing a Desert Eagle. Basically individuals should actually know how to use the weapon they intend to purchase versus simply just “thinking” they know how to use it. For most training courses this live fire requirement is already addressed.

The length of time that a purchase license would last is an interesting question because too long and the general acquired skills that comprise the purpose behind gaining the license diminish, but too short and individuals may be pressured into purchase out of fear that the license will expire. Overall the total time period would be up to the states, but it stands to reason that between 1 to 5 years for license length would seem most appropriate. The issue of renewal is of limited importance because most individuals do not purchase a large amount of guns period, let alone over a long period of time; therefore there is little concern for any “annoyance” factor that may involve having to renew a license for a fourth gun purchase x years from the first purchase.

In the end anyone who cares about reasonable and effective gun policy, which should be almost everyone because continued gun violence does not serve a positive purpose for any law-abiding citizen, must realize that both closing background loopholes and ensuring that gun purchasers have proper training are important elements to accomplishing this goal. Some may argue that background checks are too slow and training is an inconvenience to buyers; however, purchasing a gun should not be a spontaneous action. Whether the gun will be used for hunting or self-protection, either motive is not short-term critical, but long-term thus the inability to acquire the gun immediately from the buyer on the same day does not produce a burdensome disadvantage opposed to the benefits background checks and training provide to society as a whole. Overall a certain portion of the population has to realize that some measures to ensure appropriate and responsible distribution of firearms will NOT result in the loss of any appropriate firearm access. Continuing to oppose such rudimentary and reasonable policy does nothing but increase the probability for more death.

Monday, October 26, 2015

Are changes needed in probation and parole (community supervision) protocols?

When the topic of prison is brought up most of the time the conversation focuses around the events that lead to an individual’s incarceration: the arrest and the trial. A significant amount of words and ink have been spent talking about the inequities of the system both on economic (still very true) and racial (becoming less true) grounds. In fact a number of individuals continue to argue the point that because minorities make up a disproportional amount of inmates relative to their population demographics, the criminal justice system is bias.

Unfortunately while these individuals are very quick to point to drug related criminal offenses as a significant reason behind this bias, conveniently forgetting that almost all of these individuals who are convicted of these crimes are guilty, these same individuals fail to discuss another important and pertinent issue that afflicts most poorer former criminals, the nature of probation and parole and its role in influencing the prison population. Instead of arguing at worst false or at best hard to prove bias, perhaps these individuals should turn their attention to addressing an actual problem demanding reform in the criminal justice system: the role and influence of probation and parole.

For the purpose of this discussion it must be noted that parole is a sub-category under the more broad designation: community supervision. Community supervision is commonly defined as allowing convicted criminals to serve sentences in the community where if no jail time is involved the supervision is more specifically referred to as probation and if it involves the early release from jail the supervision is referred to as parole. This is an important note because there are times when individuals use the terms community supervision and parole interchangeably, which is not entirely accurate. However, both probation and parole are inherently intertwined on a meaningful level.

When probation and parole is actually discussed, one of the central arguments for increasing its utilization is associated with the general per inmate costs associated with incarceration. It is not uncommon to hear some prison reform activists state at rote that incarceration costs per inmate are absurdly high with a national average exceeding $30,000, one study in particular calculated a cost of $31,286 per inmate.1 While on its face this number seems remarkably high and irresponsible, the problem with this figure is that while technically accurate it does not accurately portray the actual costs associated with prison.

For example that same study found that while $31,286 per inmate was the national average, in Kentucky it only cost $14,603 per inmate versus in New York it costs a whopping $60,076 per inmate.1 Remember that these are ratios, not absolute numbers so this radical disparity cannot be explained by simply stating that there are more people incarcerated in New York than Kentucky. So the question is why does such a disparity exist?

The simple answer is that most prison related costs are associated with two major categories: 1) capital and direct operational costs; 2) employee related costs like salaries and pensions, etc.; Unfortunately for the “prisons cost too much, thus laws need to be changed/nullified” crowd both of these elements have low rates of elasticity. This is one of the principal reasons why an inmate costs almost $46,000 more to house in New York than Kentucky, for the average cost of living in New York is much higher than Kentucky, thus prison officials and other employees command higher salaries as well as higher build and maintenance costs for the prisons themselves. So what is the response, significantly reduce the salary and/or benefits of New York based prison employees?

One might counter that the goal should be to significantly lower the prison population, but such a result should only have a marginal influence on prison costs. Due to the costs associated with employee salaries and benefits along with the nature of prison operation, costs should not drop in any type of meaningful proportional relationship with the resultant decrease of the prison population. While it is true that there would be fewer inmates, which should result in overlap of some employee duties in the prison system leading to firings, the reason for this lack of proportional change is due to two major realities: 1) the structured and static prison environment and its operation does not produce large quantities of employee overlap; 2) a number of prisons are already short-staffed meaning that reducing the prison population will reduce the level of burden for certain employees, but not employee related costs.

Therefore, for early inmate release to actually play a significant role in reducing costs associated with prison, the number would have to be large (double digit percentages), which would raise questions regarding who was being released and why. It is also worth noting that drug related offenses is estimated to make up about 17-20% of the total prison population (depending on exact definitions) down from a peak at 22% in 1990, thus decriminalizing minor possession drug offenses will do little to change the size of the prison populations.2,3

The failure of the economic argument does not dismiss the idea for the necessity of prison reform, especially in the area of community supervision. However, instead of trying to stretch an argument on an economic ground that is just not accurate, the argument should be from the perspective of social justice and morality. So what is it about these elements of community supervision, especially parole over probation for parole carries a more damning societal element than probation, that need reform?

One could make the argument that community supervision programs have already been widely utilized regardless of whether or not the motivation was to limit the inmate population for the “participation” rate has increased from 800,000 in 1970 to more than 4.75 million in 2013.4-6 Unfortunately this increase has not translated into a dramatic decrease in incarceration for it is thought that at least 1/3 of all inmates are incarcerated for probation or parole violations.4,5 However, it is important to note that these statistics are broad statistics and do not narrowly define why these individuals in community supervision eventually end up in prison. It is certainly valid to presume that some are incarcerated for routine violations of protocol whereas others have committed new crimes that results in a parole violation in addition to the criminal charges for the new crime.

To the point of the protocol violators, this raises another question of how much protocol violation is suitable? For example if an individual continues to skip meetings with a parole officer such behavior is an indication that this individual does not respect the process or even the most simple rules, thus it makes sense to anticipate an increased probability for future criminal behavior, thus violating this individual’s parole would be appropriate.

The benefits of parole for both the state/prison and the inmates are rather obvious: 1) parole can be a means to foster reflection and behavior change lowering the probability for negative actions while in prison and future recidivism once released from prison; 2) parole can act as a controlled means to reduce the prison population without significantly increasing the risk to public safety through who is released. However, while there are benefits the operational concerns with parole fall into two categories: 1) the process of receiving parole; 2) the process of maintaining good standing while on parole.

Parole boards are utilized to determine whether or not an individual is suitable for parole largely due to their focus and specialization to judge risk factors associated with probability to re-offend. In fact parole boards and parole itself support the idea of a more evidence-based methodology in the criminal justice system, especially with regards to sentencing (i.e. the use of risk assessment and comparative relationships and examples to help make decisions about sentences both in their initial assignment and their suspension).7

However, one of the interesting questions regarding the methodology of a parole board is the large focus on risk assessment, but almost no focus on value assessment. Basically parole boards are only judging potential negative outcomes born from the release of an individual, thus individuals with negative scores that are not negative enough, above some pre-determined threshold established by the board, have the possibility of receiving parole. However, all “scores” will be negative because no positive potential is significantly judged. What would happen to the number of paroles if parole boards analyzed what positive things the individual in question could do for the community?

Some have argued that parole boards have no incentive for changing the way they operate because there are no interpreted costs associated with how they operate.7 Basically there is no retention cost assigned to a parole board for the social and economic costs of continuing to incarcerate an individual and there is no reward given to parole boards for releasing individuals that do good things in a community. This lack of retention cost is thought to establish a very high bar to grant parole in normal circumstances because again the only thing that is assessed is whether or not an individual will produce negative outcomes for society when released on parole.

Another interesting aspect that is not commonly addressed with regards to parole is the idea of “lack of failure”. There almost appears to be a motivation to ensure that no parolee commits another crime. This motivation is completely unrealistic unless one attempts to so heavily limit the idea of paroles that only a handful of individuals ever receive it. Some would argue that is exactly what has happened. The motivation for granting parole must be willing to accept the fact that some parolees will commit new crimes in order to ensure a valid parole system. Otherwise without a valid parole system the idea of prison as a rehabilitation tool loses credibility because individuals who change and/or mature during their sentence and have higher probabilities of being productive members of society will still have to absorb the full cost of their previous criminal behavior. Also society misses out on the benefits that a number of these individuals could provide.

It must be noted that while attempting to measure benefits as well as risk is important, parole boards must never be forced to release a certain target or quota of inmates. Such a quota system would defeat the purpose of the evaluation process for it would force the parole board to change the system from an absolute judgment to a relative judgment. Basically the board would have to evaluate whether or not prisoner A was “safer” than prisoner B, not whether prisoner A was actually safe. It would be akin to a curve system in education where the top 10% of a class received As regardless of their actual performance, i.e. someone with a 55% in the class in the top 10% would receive an A even though 55% is certainly not A-level performance.

Of course with respects to the revocation of parole one can get distracted by statistics like 50% of individuals in U.S. jails and 33% in prisons are there due to parole or probation violation. However, while some may view these statistics with shock, it is important to note that what is not being asked is why are so many individuals on probation or parole violating the terms of that condition? Are the parole conditions too stringent/unreasonable? Do the individuals not have effective opportunities to “change their lives” once leaving prison? Are parolees just disrespectful of the law and the conditions of their parole? For example failing drugs tests are completely on the parolee for no one is forcing illegal drugs into their body. One study in 2004 determined that within thirteen states around 25% of those on parole were returned to jail for “technical” violations, so clearly some concern is warranted.5

One explanation for the reasons behind so many probationers and parolees going to jail is that various laws allow most states to impose broad release conditions upon parolees. Basically the one real criterion is that the condition governing the continued release must be less punitive than prison. Parolees can challenge conditions based on a perceived violation of constitutional rights, but a vast majority of court decisions have ruled in favor of the state under the premise that certain “rights” are diminished during the period of supervision.5 This and other “restrictions” of rights of former incarcerated criminals is certainly a continuing problem.

So what are the core problems regarding the parole structure? First, the procedure of granting parole appears to place too much emphasis on avoiding direct negative actions versus looking at what positives an individual can produce for society. This system limits the number of people that are able to “qualify” for parole. Second, it does not seem like there is a cohesive and universal system of requirements for parolees. The existing “pick-and-choose” system appears too restrictive and capricious. Third, there is too much discretion for parole officers in deciding what is a violation and what can “slide”. While it certainly can be argued that all violations are the responsibility of the parolee, it is certainly reasonable to have a transparent understanding of when a violation will actually be judged as violation and what will not. Fourth, when parole violations are recorded, a number of times the length of time taken to process the violation is unreasonably long resulting in longer temporary incarceration periods.

One of the principal questions regarding the state response to individuals on parole is what is the responsibility of the state to “ward off” or limit the probability that individuals commit new criminal activity? For example there are a number of situations where certain conditions of parole are tied to reasonable actionable risks associated with a particular individual, i.e. prohibitions on purchasing or possessing weapons for violent offenders, drug use for those on parole for drug related crimes, or interacting with known associates or suspected associates for past criminal activities in general. Clearly such restrictions are designed to limit the opportunity that an individual has to commit additional crimes after being paroled. However, are such restrictions appropriate? Interestingly enough whether or not these strategies actually reduce the probability of new crimes is almost irrelevant because none of the above restrictions are overly burdensome that if specifically and transparently assigned to the parolee, following these restriction would interfere with the individual living his/her life.

However, what about more board rules like curfews, alcohol consumption prohibition, required participation in educational and/or drug treatment programs or even clerical paperwork such as submitting financial forms to a parole officer? It can be argued that these more board rules do place an unjustified burden on the lives of the parolee especially in reference to how they influence the probability that said individual will commit new criminal action. For example will having to file a monthly income statement to a parole officer really stop individual A from engaging in future criminal activity, it stands to reason that the answer is no, unless the individual was convicted of some form of financial fraud.

Therefore such a condition does nothing, but add additional burden to the life of the parolee. Some studies have suggested that rehabilitative interventions, like drug treatment, can actually increase the probability that parole is revoked more than likely due to the addition of factors that can lead to parole being revoked.8 Whether these violations are born directly from the additional factors like drug treatment or increased scrutiny due to the participation in these factors is unclear.

Realistically it seems that the only genuine broad/generic condition that should be assigned to a parolee is a consistent meeting time between him/her and the appropriate parolee agent. Such a meeting should be used to provide a forum for discussion and counseling (in a sense) to provide the parolee with some level of support versus an interrogation or “visit to the principal’s office”. These meetings should also provide a forum for parolees to manage any issues associated with the conditions of their parole. Outside this meeting, broad rules seem not to have value and revoking parole should only involve purposeful abandonment of these meetings, any specific restrictions as discussed above due to previous criminal activity or the commission of new crimes. Eliminating these unnecessary “for societal security” restrictions should also eliminate some of the capaciousness of whether or not a particular parole violation is actually written up as a violation or not; limiting the number of restrictions gives weight to those remaining restrictions making their violation actually mean something.

Overall though it is important to note that while some attempt to link the rate of parole violations to improper parole rules and restrictions, a parole violation can occur for numerous reasons. It is certainly possible that a sanction is so restrictive that compliance is unlikely or that a sanction is applied inappropriately to a given candidate, but it is also possible that a large rate of parole violation is valid in that individuals are willingly violating parole due to their inability or disinterest in following the assigned restrictions and the corresponding parole officers are doing their jobs well and appropriately in violating parole for those individuals. While making direct “slippery slope” arguments in association with criminal activity is questionable, it is certainly reasonable to suggest that individuals who do not respect the law on the misdemeanor level, such as typical parole violations, will have less respect for it on a felony level as well. Therefore, it is important to understand why there are so many parole violations not simply react to the fact that there are so many as evidence that the system “doesn’t work”.

Some individuals argue that one factor that should have more weight on both awarding parole and revoking parole is the age of the individual. Age is thought to be the greatest influencing factor on criminal activity probability where the probability for criminal activity peaks around the mid-20s and then steadily drops as the individual ages, when all other factors remain equal. In addition the older an individual is the more difficult it may be for that individual to comply with various parole derived restrictions due to other occupational and familial obligations.

Furthermore in the vein of reducing probation violations a number of proponents like to point to a reform undertaken in Hawaii called the Hawaii’s Opportunity Probation with Enforcement (HOPE). These proponents seem to regard HOPE as a modern answer or improvement to a cumbersome system. HOPE proponents argue that in the past when criminals on probation for drug-related crimes would violate their probation the result would frequently be disproportionally slow to the gravity of the violation, thereby resulting in wasted state resources and undue burden on the parole violator. In HOPE the response to program violations, like drug test failures/skipped tests or missed probation/parole meetings, involves certain and swift responses typically a few days to a week in jail. Also HOPE proponents point to the initial arraignment period that is conducted through a large group in open court, which is thought to save time and money versus conducting individual arraignments.

One study, often cited by HOPE and other parole reform proponents, found that in a randomized controlled study HOPE probationers were 55% less likely to be arrested for a new crime, 72% less likely to use drugs, 61% less likely to miss appointments, 53% less likely to have probation revoked and on average sentenced to 48% less prison time than the control group.9 However, while proponents have sung the praises of this study to validate the superiority of HOPE over more conventional programs, there appear to be some valid criticism of the study.

For example there are questions involving the study over-emphasizing the influence of weak key elements and under-emphasizing other active elements producing bias in favor of the HOPE model; a failure to effectively control for other factors that may have lead to HOPE participants experiencing a lower level of criminal activity versus the control; focusing too much on the amount of criminal activity perpetrated by both parties (HOPE and control) instead of the type and severity of the criminal activity; finally incomplete analysis regarding the potential psychological influence of administering harsh sanctions like multiple days of jail for a few failed drug tests, but no other criminal action.10

Among these concerns is the issue of the validity of HOPE as a “panacea” for all areas experiencing the need for probation reform. For example HOPE includes a variety of somewhat small time offenders, i.e. sex crimes, property, assault, but the only real evaluation study is the aforementioned one on drug offenders. Also similar to the issue of psychological ramifications there is anecdotal evidence that suggests a number of non-violent HOPE probationers with no history of violent crime advanced to committing violent crimes perhaps due to the incarceration born from HOPE violations. Basically while HOPE probationers appear to commit less overall crime versus controls, there is a higher probability that a HOPE probationer will commit a more violent or “high-value” crime than a control.

Some proponents argue that these problems exist not due to a problem in the methodology and practice of the HOPE program, but instead due to a lack of resources to properly execute the methodology. Basically HOPE would work just fine if there were more police officers and judicial resources. However, this argument is rather hollow for clearly the resources to make the program work “just fine” are not available. Overall the HOPE program has a number of champions and a number of detractors in the Hawaiian government and justice system, thus looking to apply it to other regions of the United States as a practical means of probation reform appears premature.

There are certainly problems in community supervision protocols, but some might argue that over the past few years for when data is available, community supervision rates have steadily declined. Such a statement is correct for between 2007 and 2013 the number of adults under community supervision declined from 5,119,300 in 2007 to 4,751,400, a drop of approximately 7.1%.6 Most of this drop can be attributed to a drop in the number of probationers (about 95% of the total drop). However, the reason for this drop is unclear; are fewer people being punished without being put on probation or are more people simply being incarcerated?

In 2012 about 67% of states including the District of Columbia experienced a decrease probationers where Georgia, Michigan, New York and North Carolina accounted for 51% of the decrease; while 33% of states reported an increase in probationers where Washington, Ohio, Tennessee, and Idaho accounted for about 50% of the increase. Parolee population decreased slight in 2012 as well with the increase and decrease split between the states with Pennsylvania, Texas, and federal system accounting for 55% of the increase and California alone accounting for 72% of the decrease.11

A positive trend is that between 2008 and 2012 the rate of incarceration among probationers, regardless of cause be it new offense, revocation or other reason, has gradually declined from 6% in 2008 to 5.1% in 2012. It is important to note that the decrease from 2011 to 2012 was from 5.5% to the aforementioned 5.1%, so the 5.1% may not hold when the 2013 and 2014 data is analyzed and based on initial data the negative trend has held, but not the rate of decrease.11

Also it is unclear what has caused this decrease, budget cuts, more responsible probationer behavior, less inherent restrictions to violate, etc. A similar, but smaller trend, for a decrease in reincarceration was seen for parolees from 2007 to 2012 that flattened out in 2013, with a similar lack of reason why although California again drove the decrease for parolees. However, it is worth noting that most of this decline was seen from drops in revocation rates versus drops in new commission of criminal activity.

Also another short-term positive is that only 35% of those who become parolees did so through mandatory release from prison versus 54% in 2008, marking fourth consecutive year of decline.11 Not surprisingly discretionary release rose to 41% to account for some of this decrease in mandatory release.11

While the above information is positive, there is a concern that the trend is more dependent on the global recession that occurred in early 2008, which ravaged state budgets forcing more releases from prison and more creative “solutions” versus probation and parolee like fines and community service. Speaking to this concern is that although 2012 did see a decrease in community supervision, that decrease was smaller than the decrease in 2011 (i.e. the slope was positive) and this decrease shrunk again between 2012 and 2013.6,11 This result may be a blip in the trend or the start of a new trend due to state budgets normalizing having generally recovered from the recession.

Returning briefly to the question of are fewer people being punished without being put on probation or are more people simply being incarcerated, some believe it is the latter. This belief is based on the idea that for some unknown reason, maybe political or not, local district attorneys have become more aggressive at charging individuals with crimes that result in longer jail sentence, thereby making probation less likely.2,3

When looking at all of the issues surrounding the criminal justice system in the United States, one of the easier areas to make positive advances is in community supervision, especially for parole. One of the key areas of parole is a change in mindset with regards to its application in that the public must understand that no system is perfect, therefore, the goal should not be to completely eliminate the prospect of criminal activity from parolees, but reduce it through effective decision-making and management. A part of this effective decision-making is to apply appropriate restrictions on parolees based on their previous criminal history and perceived psychological acumen not a broad “one size fits all” mentality. Administering unnecessary and broad restrictions will more than likely produce more harm than good both for the community and the parolee. Overall while addressing the issues within community supervision will probably not produce the savings boon that various prison and criminal justice reformers seek for the criminal justice system, it would be important to serving appropriate and fair justice.

Citations –

1. Henrichson, C, and Delaney, R. “The price of prisons: What incarceration costs taxpayers.” Federal Sentencing Reporter. 2012. 25.1: 68-80.

2. Pfaff, J. “Waylaid by a Metaphor: A Deeply Problematic Account of Prison Growth.” Mich. L. Rev. 2012. 111:1087.

3. Pfaff, J. “The Myths and Realities of Correctional Severity: Evidence from the National Corrections Reporting Program on Sentencing Practices.” American law and economics review. 2011:ahr010.

4. Pew Center on the States. “State of recidivism: The revolving door of America's prisons.” 2011:2

5. Klingele, Cecelia. "Rethinking the use of community supervision." J. Crim. L. & Criminology. 2013. 103:1015.

6. Herberman, E, and Bonczar, T. “Probation and Parole in the United States, 2013.” U.S. Department of Justice. Bureau of Justice Statistics. October 2014. NCJ 248029.

7. Ball, D. “Normative Elements of Parole Risk.” 1/1/2011

8. Albonetti, C, and Hepburn, J. “Probation revocation: A proportional hazards model of the conditioning effects of social disadvantage.” SOCIAL PROBLEMS-NEW YORK. 1997. 44:124-138.

9. Hawken, A, and Kleiman, M. “Managing Drug Involved Probationers with Swift and Certain Sanctions: Evaluating Hawaii’s HOPE: Executive Summary.” Washington, DC: National Criminal Justice Reference Services. 2009.

10. Duriez, S, Cullen, F, and Manchak, S. “Is Project HOPE Creating a False Sense of Hope: A Case Study in Correctional Popularity.” Fed. Probation. 2014. 78:57.

11. Maruschak, L, Bonczar, T. “Probation and Parole in the United States, 2012.” U.S. Department of Justice. Bureau of Justice Statistics. December 2013. NCJ 243826.

Wednesday, September 23, 2015

Global Political Questions associated with Building a Space Elevator

The idea of a space elevator has long captivated various minds since it was both theorized in scientific circles by Konstantin Tsiolkovsky and introduced into popular culture by Arthur C. Clarke. This fascination is divided between the technical difficulties associated with its construction and the optimistic returns from its successful operation. The most prominent benefit of a space elevator is the presumed dramatic lower launch costs as travel into space would move from expensive single-use launch systems to the multi-use consistent space elevator. Some have attempted to dampen the optimism associated with a functioning space elevator by suggesting that a space elevator in general will not significantly affect the overall cost of space travel.

These suggestions are more than likely incorrect because they commonly fail to appreciate the eventual evolution of a space elevator for the first prototype for any form of new technology is always the most expensive and least efficient. Also the non-launch elements associated with space travel, that skeptics reference as a significant cost factor unaffected by a space elevator, should also see significant cost drops over time, through not immediately, as industries adjust to space travel being a more common occurrence than less than once per year. Therefore, those industries directly related to space travel, especially those that supply parts and consumables, will create more streamlined procedures to prepare for and supply launches. Costs will also reduce through the interaction between the private sector and the public sector as with lower costs associated with space travel governments will be more willing to fund space travel increasing the rate of private funding. Finally a space elevator should be an important achievement for humanity in general if it wishes to actually leave the confides of Earth to colonize other heavily bodies, be them planets, moons, asteroids, etc, with any level of success.

While a lot of effort has been spent on the technical issues and the back and forth of how valuable a space elevator will be, very little time has been spent on the political and secondary economical issues associated with a space elevator. This lack of attention is unfortunate because these issues are very important to the stability of a space elevator both physically and functionality. Therefore, it is important to understand these issues and how they can be successfully managed in order to effectively influence the positive operation of a space elevator after its construction.

The most talked about and analyzed secondary issue with a space elevator is protecting it from environmental damage. The list of possible threats to a space elevator is rather extensive including, but not limited to: lightning and high winds, oxygen and other atmospheric (both lower and higher) chemical reactions, radiation and electromagnetic fields, and space debris along with micro-meteors and other low-Earth orbiting objects like satellites. Concerning satellites it is expected that twice per day each orbital plane will intersect with the elevator and there will be times when both a satellite and the elevator will fill the same area at the same time threatening a collision that will damage both the satellite and the elevator. This problem is not viewed as critical in any real light because operating satellites commonly have a means to generate slight course corrections that can be used to avoid these potential collisions. Non-operational satellites and other space debris are more complicated for they cannot make any adjustments.

Meteoroids, especially micrometeorites, are even worse than space debris for they are much less predictable. Impacts from micrometeorites are almost guaranteed, forcing one of three possible strategies: 1) deploying some form of shielding that could be absorb the damage and then regenerate itself some how; 2) designing a different system for elevator continuity beyond the more conventional ribbon design. One example that has been discussed is the hoytether system, which involves a network of strands in either cylindrical or planar arrangement with multiple helical strands; 3) create an autonomous repair system to manage the various points of damage.

One common and almost universally agreed upon strategy for minimizing the damage potential from orbiting objects is to anchor the space elevator on a mobile controllable target like a large ship or ocean-going platform. By making the anchor point mobile, it should be easier to avoid negative weather patterns as well as non-controllable orbiting objects. Most want this platform in the Eastern Pacific Ocean due to its relatively calm winds and the low probability of lightning. Using non-conductive fibers and small cross-sectional areas that rotate with the wind can provide additional protection. Issues associated with ice formation have been a little more troublesome due to weight considerations. However, all told there may be some meaningful problems with this moving anchor strategy that are not discussed by its proponents, which will be highlighted later.

There is some question to whether or not oxygen corrosion in the upper atmosphere will actually be a significant problem. One way to test the problem potential of oxygen corrosion could be to send various potential elevator material to the International Space Station and expose those materials to the appropriate conditions for extended periods of time. If corrosion is a problem then either the tether must be made from corrosion resistant material like gold or platinum or be coated with such a material. Finally actual repairs to the space elevator are somewhat ambiguous with space elevator supporters simply reporting that there will be special repair climbers that handle this issue. However, it does not lend much confidence when it simply must be assumed that once construction is completed sufficient knowledge will exist to design these repair climbers.

Overall the previously mentioned issues may be the easiest ones when dealing with a space elevator. Very little work has been done on the political issues associated with the operation of a space elevator. For example suppose country A builds a space elevator, what would be the procedure for allowing another country, group or individual to launch something into space? Will the only requirement be the ability to pay some monetary sum established by country A? If so, would that allow a group like Hamas or ISIS to launch something into space?

These are important questions for multiple reasons, but most notably pertaining to potential weaponization of space. Note that for the purpose of this discussion the term “weaponization of space” will mean: “the placement of a device in orbit that can directly destroy, damage or
disrupt the normal functioning of one or more objects within the confines of Earth.” Some individuals would argue that space has already been “militarized” due to the use of satellites in military operations, but space has yet to be “weaponized”. Also note that this definition for “weaponization of space” does not include attacks against orbiting objects like satellites for such potential already exists, demonstrated by U.S. and China and thought to be had by Russia as well.

International agreements concerning space have been far and few between and are commonly negotiated in the United Nations. The first agreement and still governing one, due to actual ratification, regarding international relations within space is the Outer Space Treaty created in 1966 and officially signed by the United States, United Kingdom and Soviet Union in 1967 followed by all other major space “powers”. Unfortunately the Outer Space Treaty only notes broad legalities in association with space like no national appropriation through claims of sovereignty, state responsibility and liability for actions in space or damage, peaceful intent in interaction with celestial bodies, etc. While placing nuclear weapons in space is explicitly forbidden, there is no explicit prohibition of other types of weapons.

More extensive and specific attempts for an international agreement regarding the issue of weaponizing space have been put forward, most notably the two versions of the “Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects” (PPWT) by Russia and China, but the United States has rebuffed these attempts citing security concerns over possible space assets, a lack of a verification regime and provisions that would directly prohibit possessing, testing and stockpiling weapons that could be placed in outer space. One might questions the validity behind the rationality of this rejection, especially the issue of space assets due to Article V of the PPWT explicitly granting no restriction on the right of self-defense in accordance with Article 51 of the Charter of the United Nations.

Nevertheless the General Assembly of the United Nations has passed two resolutions regarding the prevention of arms in space. The first resolution called on all States to contribute to the peaceful use of outer space, prevent arms races there and refrain from actions contrary to this major objective; it passed with overwhelming support with only two abstentions (Israel and the United States). The second resolution called for the “no first placement of weapons in outer space” and had less support, despite passing, with 4 countries (Georgia, Israel, Ukraine and the United States) voting against and 46 abstentions (including European Union member states). The use of the United Nations as a go-between may need to end in favor of more direct multi-national treaties due to the general lack of respect various powerful countries show the United Nations when it takes a position opposite to that of a particular powerful country as shown in the voting results on these two resolutions.

Also if an agreement is reached what would be the consequences for violating the agreement as all of the countries that could successfully build a functional space elevator have dubious foreign policy histories; thus what penalties could be levied that could reaffirm trust issues in an attempt to normalize relations if such an agreement were violated? Would the only appropriate penalty be the destruction of the space elevator or would operational control be transferred to another party? Should the idea of a treaty be scrubbed completely instead granting operational control of any space elevator to, ironically the most neutral available body, the United Nations? While such a possibility could manage future problems better, how would funding a space elevator proceed if the government of country A knew that it would not retain operational control despite providing the capital, labor and technology to construct it?

Apart from the issues of weaponizing space, the country that controls a space elevator will have an insurmountable economic advantage for launching objects into space, what would happen if this country monopolizes the technology not allowing any other nations access? Can a space elevator simply be treated as any run-of-the-mill commodity? Would anti-trust or global monopoly laws be applied? Should there be an international treaty that sets a firm price for all nations in the event of a space elevator being constructed or should the constructing country have the ability to set any price? These above issues are rarely, if ever, addressed when individuals discuss a future environment with a functional space elevator. The general mindset appears to be a “utopia-esk” societal arrangement where anyone who wants to use the space elevator can use it at cost. Clearly it is difficult to envision this particular environment as one that will develop in reality.

Managing the problems associated with a privately constructed space elevator could also be complicated. Referencing the previous major question of who would have access to the space elevator, suppose corporation A built a space elevator, what would stop them from allowing groups to use it that held political, economical and/or military beliefs that differed from those held by country A? Numerous corporations have demonstrated numerous times over the years that as long as enough money is involved they have no moral qualms against carrying out business relationships with individuals or groups that commonly engage in violent actions against other parties, even if the reasons are superficial. So what types of laws will manage private space elevators? Should it even been legal for a private corporation to have operating control over a space elevator with the severity of what could result from “bad behavior”? Once again should the United Nations take over operating control of the space elevator with all revenue going to corporation A?

With all of the above issues, if any individual or group wants to take the possible construction of a space elevator seriously then the international community must establish guidelines, rules and agreements that address these issues, especially on the issue of access. Access is the most important element because it will establish the general expectations regarding how society will utilize the space elevator to evolve both in a positive or negative manner. Without a binding and known understanding when it comes to these above issues, the probability for the successful construction of a space elevator drops dramatically because uncertainty will more than likely cause some party with the capacity to engage against the construction process in a negative way. Basically if country A does not know whether or not they will get access to a space elevator they may utilize violence to ensure the elevator is never completed.

The issue of potential violence speaks to the location of the space elevator. As noted earlier one of the more popular strategies associated with locating a space elevator is placing it on a movable anchor, most likely a ship out in the Pacific Ocean. What type of protection should this ship have to ensure the safety of the elevator? Would this ship need to house and feed a police force? Would this ship need some form of anti-aircraft defense system? What type of no-fly zone and no-sail zone, if any, would encompass the ship? While the placement of the ship in international waters would eliminating any direct issues of jurisdiction with a single country it would also eliminate a number of problems associated with launching an attack against the ship as well, for attacking a ship in sovereign waters may represent an act of war that would prevent some parties from actually launching an attack. How maneuverable would the ship be if it has to engage in combat for sharp movements may create shearing and tensile stresses on the elevator causing meaningful damage?

Another issue that must be addressed in association with a space elevator is how to manage space debris. The successful operation of a space elevator could dramatically increase the number of objects in LEO or even GEO, which will increase demands on available orbital space as well as provide additional threats to damaging the space elevator. What type of international accord will govern the procedure for managing space debris?

The most significant authority regarding space debris is Article VIII of the Outer Space Treaty which states that all countries retain their ownership rights on all objects launched into space even if those objects are no longer functioning or are pieces off of existing functional objects and the 1972 Convention on International Liability for Damage Caused by Space Objects. There is no salvage aspect to space objects, unlike oceanic objects, which are covered by maritime law. Thus for any country or agency to interact with non-functional satellite A they need legal consent from the launching nation. The biggest problem with this current standing is that small objects that break off of a satellite or other larger space object with no functionality at all are still considered owned by the launching nation, thus technically to remove these objects there origin source would have to be identified making legal removal difficult.

One way to deal with this issue is for all “space” nations to reverse the legal standing of space objects. Basically instead of country A retaining legal standing over all launched material and its resultant components, country A would need to explicitly state what space objects they hold legal standing on, thus if no chain of custody could be established for a given object then no country could have claim on that object and it could be freely removed by an appropriate party.

The two most common removal methods for space debris are: 1) moving the object to a “graveyard” orbit where it will be unable to interact with functioning satellites; 2) launching a projectile at the object to remove it from orbit and return it to Earth. An operational space elevator would ease the obstacles associated with these two above methods as well as possibly provide a third removal method involving attaching the object to a climber and transporting it down to Earth on the elevator itself.

It is also worth noting that Article VII of the Outer Space Treaty covers liabilities; strict liability standards exist for space objects that cause damage to the surface of the Earth or aircraft and fault standards are assigned for damage occurring to a non-Earth based location. This liability would have to be transferred to any organization responsible for removing these objects. Unfortunately for those desiring a competitive marketplace for debris removal, the best strategy would actually be limiting all removal activities to the controlling operator of the space elevator due to this group possessing the most relevant knowledge and access. Competitors would not have access to the elevator and their strategies for removal would typically be more risky. Flat and fair rates should be charged for debris removal.

Due to the increased ease at removing debris, would it be appropriate for each country to replace all satellites older than x years (x to be determined by an international agreement) including all associated parts at cost before allowing the use of the space elevator? Basically with the development of a space elevator would countries be able to launch as much as they could afford or would each country have a specific quota based on the some factor (size of economy maybe) that could even be brought/sold/traded?

Overall there are a number of important political and diplomatic issues that have yet to be discussed let alone resolved regarding the construction of a space elevator. One might suggest that discussing these issues is akin to putting the cart before the horse for the technology to construct a space elevator is still in its basic infancy; however, that fact highlights the necessity of discussing these issues for if these issues cannot be successfully managed and resolved then the construction of a space elevator would produce wasted effort and resources. Managing the political issues go hand in hand with the technical issues for successfully operating a space elevator, so it is important that all aspects of a space elevator be discussing in realistic terms over some dreamy utopic ideal.

Wednesday, September 9, 2015

The "Cost" of Morality in Society

One of the interesting aspects of how society has developed involves the apparent evolution of morality and its role in society. It would be reasonable to conclude that the formation of an individual’s moral beliefs is mostly derived from two sources. First, as a child, individual morality is heavily influenced by parents along with the culture/traditions of their environment. Second, as the child grows the influence of these initial defining factors can increase or decrease as life experience supports or challenges those original beliefs. Therefore, an individual’s morality is largely defined by the morals of parents/community and how life experiences interact with those initial drivers.

While some may argue the finer points, humans like to believe that they reside in a society built upon the idea of a meritocracy in that an individual can become successful regardless of upbringing or circumstance by simply working hard and/or smart. However, for such a belief to represent reality instead of one’s mere false perception of reality, society must adhere to a specific set of rules to ensure that this ideal is met. Thus, the development and administration of morals for a particular society is different than that of those who comprise society because there cannot be variance in their application. Basically society must have one set of rules that is enforced universally for the idea of a meritocracy-based society to have any level of validity. Note that this condition is not the only element that is required to establish a legitimate meritocracy, but is only one of the numerous conditions that are required.

Unfortunately the law itself does not singularly define morality in a society because those who comprise society directly influence the law, both in its development and enforcement. With this in mind it is important to understand how individuals react to violations of the law, i.e. the moral code of society. This understanding can be difficult because of mischaracterizations of interpretation. For example one of the most famous “moral” structures is The Golden Rule: Do unto others as you would have them do unto you. However, nowhere within The Golden Rule does it actually say that one must or even should be altruistic or fair to others. If an individual does not care about the prospect of being screwed over in his/her relationships and interactions, then that person can screw people over as many times as he/she wants and still be in accordance with The Golden Rule. The quid pro quo nature of The Golden Rule demonstrates a murky issue regarding morality in society.

Another critical component of The Golden Rule is the idea of reciprocation. Negative actions are only relevant to The Golden Rule if another party can act in response to the pronounced negative action. Basically Person A is free to screw over anyone he/she wants if no one is able to retaliate. This realization is critical to the very notion of justice. For there to be justice an entity must exist that produces a certain morality and has the power to enforce that morality. In a society that entity is society itself, so when society has a fractured morality the ability to execute justice becomes more difficult and less certain. Therefore, it is important to ask how society responds to immorality in society.

When the public concludes that an individual has committed an immoral act(s), a vast majority of the time that individual responds in one of three ways. First, the individual acknowledges the immoral nature of the action, apologizes for it and commonly professes to be more vigilant in the future regarding these types of issues. Interestingly enough the public seems amazingly forgiving, especially to those in power be it benign power like celebrities or real power like politicians. Such forgiveness might be misplaced based on how aware the offender was to the original immorality of the action for rarely are immoral actions that demand a public apology to society “mistakes”. Sometimes the individual in question really is genuinely sorry and does live up to their vigilance pledge while other times they are not genuine and are simply attempting to minimize the detriment associated with their malfeasance.

Second, the individual holds steadfast to the idea that the action is not immoral and either ignores the characterization or tries to explain the action based on his/her analysis of the action and the motivations behind it. This action typically generates polarization between those who agree with the explanation or support the individual in general versus those who do not because they believe that the action is immoral and due to the lack of acknowledgment of its immorality the action will more than likely be repeated. Sadly this decision appears to be the most commonly selected among the three because the individual recognizes this split, which limits the power available to impose consequences on the individual for the action. Basically instead of admitting to doing something wrong the individual claims to have done nothing wrong.

Third, the individual defends the action by citing similar or worse actions that have been taken by other individuals in the past, making an effort to limit the “severity” of their violation. This strategy is commonly used by politicians and their defenders and sometimes falls under the understanding of “it’s not a big deal because everybody does it”; yet this strategy is inherently counterproductive and foolish. The main problem with this strategy is that the initial action is never actually justified or explained in a moral context; also the action is indirectly confirmed using “hypothetical” preambles like, “even if I did it…” Why would one attempt to lessen the presumed severity of an action if one did not take that action and did not believe its perceived morality to be controversial?

Furthermore not only does the individual indirectly admit to committing the questionable action, but a rational bystander observing the situation can only come to one conclusion. That conclusion is not “Oh that is why that action was taken, I understand now (agreement or disagreement follows)”, but instead “Oh, so you are an immoral scumbag, but according to you individual C is also an immoral scumbag”. Thus, society is given not a rational explanation for individual A’s actions followed by appropriate consequences, but a battle in the scales of immorality. Using rational analysis this strategy is clearly flawed, so how is it that politicians are still able to get away with criticizing the morality of their opponent’s to explain their own moral shortcomings?

Avoiding the easy answer of society does not function rationality, one important possible explanation for the lack of consequences to numerous violations of morality is that, whether or not society cares about an individual’s morality is subjective. There are telling signs that modern society has reached an impasse between morality and success. For example is there any real advantage to being moral if society views you as a successful individual?

There appear to be two major advantages that stem from moral behavior and the resultant “moral” characterization given to such an individual: 1) moral individuals tend not to violate social norms and the law, which significantly reduces the probability of criminal and civil action against them; a secondary element to this point is that moral individuals are rarely swindled, speaking to the old adage “you cannot con an honest man”; 2) moral individuals seem to have inherent advantages when cultivating allies for social and economic proposals largely based on perceived trustworthiness;

Unfortunately it could be argued that for rich individuals neither one of these advantages are meaningful. Simply looking at numerous examples in the criminal justice system demonstrates that the ability to be successfully prosecuted for a crime is inversely proportional to an individual’s net worth; successful individuals typically have larger amounts of wealth than average individual and are more difficult to prosecute for their transgressions, thus heavily limiting the first advantage to being moral. Also with large amounts of money and resources even if another swindles a successful individual, the losses are typically insignificant.

Also due to the fascination and allure most members of the general public have towards success and wealth, rich and successful individuals have far less trouble recruiting allies to their personal crusades both through their utilization of resources or perceived charisma. Thus having money and success can achieve the advantages associated with moral behavior via different pathways. However, having money and success also produce other meaningful advantages for individuals that are not associated with moral behavior. Further troubling is that behaving in a moral manner provides obstacles to becoming successful for they restrict passage along the shorter less scrupulous paths to acquiring success. It is much easier to swindle someone out of 5,000 dollars either directly through fraud or indirectly through influencing public policy over working 250 hours at 20 dollars an hour for a gross 5,000 dollars.

Therefore, with the simple understanding that morality and success overlap the same advantages, with additional advantages associated with success alone and with potential conflict between morality and success, for a number of individuals immoral behavior is justified in the attempt to achieve success. Achieving success is the critical element for the viability of immoral behavior, for while society tends to look the other way regarding the moral transgressions committed by successful individuals either in the pursuit of success or after achieving success, if an individual fails to become successful then society looks to punish the individual for those transgressions. In some respects modern society views moral behavior under a lens of “the ends justify the means.”

So what drives an individual to commit an action that could be regarded as immoral? For the individual in question an immoral action can be justified one of two ways: 1) psychological defense mechanisms are applied that allow that individual to perceive their action as moral and/or justified; 2) the individual does not care about the morality of the action and simply takes it to produce some form of advantage to get closer to becoming successful. Interestingly enough a number of individuals apply both methods first using psychological defenses then qualifying the defense with an “ends justify the means” attitude to support achieving the advantage through the immoral behavior.

The second “justification” has multiple iterations with some experiencing a slippery slope evolution starting with small violations that are more justifiable and slowly increase their tolerance for justification whereas others simply invoke the “ends justify the means” attitude from the beginning. To investigate this slippery slope element more, largely because it is actually worth investigating for those with a large-scale “ends justify the means” attitude are simply insecure fools, why does an individual speed when driving?

Clearly moral behavior involves not violating the law, but many people each day elect not to be moral, so how do they justify such a decision? Looking at morals in general, the problem with morality seems to be that people tend not to associate many tangible or even intangible rewards or gains with being a moral person. In addition to the perceived lack of advantage to being moral, individuals will frequently reason that they also give up something to be moral, the gains that would come from not being moral, i.e. the perceived shorter pathway to success.

Using the speeding example, suppose there are two individuals John and Smith who both travel to work approximately 63 miles away, with 60 of those miles on an expressway with a 55 mph speed limit. John elects to following the speed limit of 55 mph where as Smith decides to travel at 65 mph. In this example by being moral and following the law John loses about 10 minutes in relation to Smith in extra travel time. Of course there are consequences to being immoral for if Smith is caught in violation of the law by an appropriate agent Smith not only loses the time he would have gained by breaking the law, he will also lose additional time and be penalized financially. Also Smith increases the probability of getting into an accident of some sort. So with these potential consequences, why does Smith elect to be immoral? Smith would more than likely use a cost-benefit analysis with an associated severity and certainty of consequence analysis. Does such a methodology cheapen morality?

In a cost-benefit analysis morality could either be considered a benefit or a cost depending on the overall characterization of the action. If the considered action is in-line with the general character of the actor then morality will be viewed as an intangible benefit because it will help solidify that particular trait. If the considered action is opposed to the general character of the actor then morality can be viewed as an intangible cost because it could challenge any developed morality of the individual. The cost classification of morality can change if the individual changes his/her values, something that may happen with certain immoral actions to compensate for taking those actions. Not surprisingly the comparison between morality as a benefit versus a cost tends not to be equal because typically in human psychology positive elements are overestimated in their importance and negative elements are underestimated in their importance, which applies significant bias to this analysis.

What rationalization does an individual use to reduce the significance of morality in the decision-making process? One common strategy is the 'white-lie' rationalization. The decision-maker simply isolates everyone else from the consequences of the decision typically with the reasoning that taking the action will not hurt anyone. For example Smith may elect to speed when traveling alone because he will be the sole receiver of any potential benefits or consequences. With highway statistics and common physics reporting that the faster a vehicle is traveling when colliding with another vehicle the greater the probability for fatalities this “I am the only one bearing responsibility for speeding” reasoning is clearly flawed.

However, Smith may hold on to this flawed reasoning because of what he determines to be a small probability of an accident occurring, thus the more probable benefits and consequences still remain reserved for him and him alone. Of course a simple severity argument removes any remaining reason for Smith to speed in a typical situation because although the probability of an accident is low, the severity of the result more than eclipses any time benefit acquired by speeding in the first place, especially since the utilization of the saved time will be generally irrelevant. For example the additional 10 minutes of time that Smith saves each day in transit will commonly be squandered doing some unnecessary and superficial task; the acquisition of the additional time serves no real benefit, thus legitimizing the severity over the certainty of the consequence because the benefit is meaningless; i.e. there is additional risk for only superficial reward.

So what can be done to address the waning value of morals in modern society beyond writing analysis about the flaws in the logical processing of advantage over disadvantage similar to that seen above? One option is to increase the rate of punishment for rich individuals based on the presumptive moral structure that because the value of immoral action is largely applied to increasing the probability that one becomes successful, the more successful an individual the less reason that individual has to behave immorally. Therefore, immoral behavior by wealthy individuals can be viewed as more severe than immoral behavior by poor individuals. Interestingly enough such a mindset would almost be opposite the popular current mindset, for the transgressions of poor people seem to be more amplified in society than the transgressions of rich people.

The immediate problem with such a strategy is that executing a more severe punishment against individual A than individual B for the same infraction solely on the basis of income differential is not indicative of a fair and practical criminal justice system. Fortunately increasing punishment to the rich and successful can be a viable strategy by simply ensuring that lawbreakers are punished justly. Basically if the criminal justice system actually lived up to the ideal of being fair and practical, successful individuals will have a higher probability of being punished for their transgressions opposed to the current system, which produces unfair advantages for the rich and successful.

In addition crimes associated with avoiding the investigation of the truth behind an action, most notably perjury and obstruction of justice, should have increased penalties versus those that currently enforced in society. One of the principal ways individuals avoid prosecution for their crimes is committing these two above offenses in effort to limit the ability of the criminal justice system to produce sufficient evidence to convict and rich/successful individuals have a higher probability of executing these strategies due to their additional resources and contacts. Increasing the penalties associated with perjury and obstruction of justice will at least reduce the probability that individuals engage in these tactics and make punishment for such action meaningful against those who still choose to take them.

Also society must reduce the allure and admiration for the rich and “celebrity” in general for such a change will reduce the behavior of blindly following ideas by rich individuals solely because they are rich. Furthermore society must acknowledge the value of morality by applying associated pressure to wrongdoers. While the adage of “everyone deserves a second chance” is fine and appropriate, the number of chances one seems to get from society is directly proportional to level of success; in that the richer someone is the more immoral behavior is accepted both in magnitude and frequency. Society must change this perception, no more “fourth, fifth, sixth, etc.” chances.

Finally the societal attitude regarding success and the allowed lack of morality in its pursuit is interesting in association with the frequent complaints that are heard regarding the number of individuals that are incarcerated in this country. It should be of little surprise that there are so many people in jail because society has created a flippant mindset regarding the law regardless of the magnitude of the crime. When looking at the number of individuals in jail very few have been convicted of crimes they did not commit, thus they are criminals. This creates an element of hypocrisy because one cannot complain about the number of individuals in jail and yet not argue against the “succeed at any cost” attitude that society has developed.

Overall society has two paths to choose from: 1) accept society as it is now and the simple fact that such a society reduces the value of morals as well as increases the probability of significant divisions between classes and races, which will also inherently result in more criminal activity (whether or not this criminal activity is prosecuted remains to be seen); 2) reject this aspect of society and seek to eliminate the advantage cross-over between morality and success, thus at least restoring the character intangible values of morality to society, which should have a negative effect on criminality. Unfortunately as it currently stands the idea of hoping that morality somehow wins out in the end over the pursuit of success is a pipe dream; society must decide what it values more and if it wants to view itself as a meritocracy where success is determined by the power of an individual outperforming others under a consistent set of rules, thus making that success matter in any real psychological sense, then morality must win out.