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.

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.

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.

The Politics of Money in Politics

The recent announcement that Lawrence Lessig was exploring the idea of running for president raises two interesting issues. First, the principal reasoning behind his interest in running for president, in that he feels that present system of democracy in the United States has been flawed for some time now and feels other methods have not produced desired results at remedying these flaws. As Mr. Lessig tells it these flaws are largely born of the Citizens United Supreme Court ruling in 2010, which changed the political environment to basically allow for an infinite amount of money to influence the democratic process in every election. Due to this new influx of money a number of individuals, including Mr. Lessig, believe that the inherent principal nature of power equality that is representative of an indirect democracy has been lost resulting in the very real possibility that democracy in the United States could transition into an oligarchy.

Mr. Lessig’s concern about this issue is so significant that it raises the second issue, the very nature of his tenure as President. For Mr. Lessig the importance of maintaining democracy should exceed everything else, but he believes, and justifiably so, that the existing field of presidential hopefuls will be unable to exclusively focus on this issue as they would have a number of other domestic and foreign policy issues to addresses as well. Thus, Mr. Lessig’s candidacy and resultant presidency is similar to that of a referendum. His entire platform is that he will devote the entire focus and power of the his presidency to ensuring the maintenance of democracy, which will largely involve eliminating the mass influx of money into the political process either through the repeal of the Citizens United ruling or another method. After accomplishing this goal Mr. Lessig would resign as President leaving the remainder of his term to his Vice President.

The more important of these two issues is whether or not Mr. Lessig is correct to view the unlimited influx of money into the political process as a chief threat to democracy. The trademark notion of a democracy is “one person one vote” implying equal influence from all voting parties regardless of position or standing. There has been no change in this practice regardless of the level of money committed to a given election cycle. However, some would argue that the evolution of the political system in the United States has created an environment where any elected position of significant consequence demands a large amount of money to purchase advertisement and conduct other publicity activities in order to have a reasonable chance at winning. This monetary demand places an additional motivational incentive on potential candidates to abide by the wishes of those that have the ability to donate large sums of money at multiple instances. Also a greater influx of money may influence the candidate pool keeping individuals that might otherwise run for a position from doing so under the belief that they could not raise enough money to be competitive.

So the question boils down to how much of an influence does money have on the ability of an individual to be elected in a given political race? Clearly there have been no significant cases of individuals literally selling their votes, that is an arrangement being made between a voter and a supporter of candidate A that said voter will vote for candidate A for 50 dollars. Therefore, if money is not used to directly “purchase” votes, what purpose does it serve in an election? The principal purpose of money in an election is to maximize information distribution for a given candidate. Basically the real advantage of candidate A having more money than candidate B is that it allows candidate A to take advantage of the interest and time limitations possessed by the electorate.

For example instead of depending on a potential voter taking the initiative to look up the official position of candidate A on issue Y, spending money allows candidate A and his/her supporters to present the position of candidate A on issue Y directly to the voter via some form of media advertising be it television/radio/print/Internet or via direct interaction with a candidate A supporter. In addition to significantly increasing the odds of potential voters knowing the position of candidate A on issue Y, the fact that candidate A and his/her supporters are creating the delivery mechanism of the information allows them to frame the information in such a way that if desired the core message could be prone to misinterpretations or even outright lies that favor candidate A. This action can also be used against competitors framing their positions in such a way that could make them less attractive to voters.

The next question is how important is this information capacity in an election? This issue has two different parts: first, how valuable is information in an election and second, how much information is available? Starting with the second issue first, in the Internet era for modern developed countries there is little ability to “bottleneck” information or control the information stream. Gone are the days when someone could simply spend enough money or favors to shutout another candidate’s message altogether. The principal advantage of money with respects to this second issue is the ability to saturate information on all forms of delivery systems: television, radio, Internet, hiring people to “spread the word” in public areas, etc. However, money is not the limiting factor controlling the actual ability to distribute information, it simply allows for the more efficiency spread of that information.

Even though money is not a limiting factor controlling the basics of information distribution in a political campaign, is it a critical factor that can dramatically increase the probability of winning? This question is the central question in the first issue of the importance of information capacity: how valuable is information? The value of information in a political election is almost exclusively associated with its ability to produce votes for the candidate. Voters will not vote for candidate A based on two central elements: 1) the voter does not have information pertaining to candidate A either as a person and/or political position; 2) the voter’s political values and/or social values are significantly different from those of candidate A.

In the first scenario the value of information is important for on the most basic level (not taking into consideration the specific characterizations of the candidate and the potential voters) there is a greater likelihood of an individual voting for candidate A if they are known versus voting for candidate A if they are not known. While it is certainly possible that a voter will not vote for candidate A after learning of their political/social values, it is also possible that they will vote for candidate A. Therefore, the behavior of the voter changes from a base low value (typically involving whether or not the individual will vote in the first place) to either a slightly lower value (disagreement with newly understood positions of candidate A) or significantly higher (agreement with the newly understood positions of candidate A). Overall it makes sense to inform voters regarding the important positions and traits of candidate A both logically and practically.

However, it must be noted that the importance of expelling anonymity is inversely proportional to the scope of the election because of the validity of that anonymity. Basically if candidate A is running for a position on the School Board for Smith country there is a good possibility that candidate A will be unfamiliar to a number of potential voters because the perceived importance and scope of that position is small, thus information about candidate A is important to dispel that lack of knowledge. On the other hand if candidate A is running for one of the two U.S. Senate positions representing the state of California, it is highly unlikely that potential voters will be unaware of the important elements, both political and social, representing candidate A. Note that social elements must be included when discussing information distribution because a number of voters vote not on the political issues supported by a candidate, but on whether or not they like the candidate, which could have little to do with the candidate’s political positions.

In the second scenario there is little money can do to produce votes for candidate A. If voter y is aware of the political positions and social standing of candidate A and his/her personal viewpoints are in opposition to candidate A’s positions then further information distribution is basically a waste of resources. The immediate question regarding the above statement is why does the distribution of counter information have such little influence that it can be so readily considered a waste of resources?

There are two significant reasons for the above statement:

1) In recent years, in large part thanks to a loud and more radicalized Conservative movement and to a lesser extent similar Progressive movement, voters in general have become much more polarized on a wide breadth of political issues creating a hostile environment to ideas that run counter these opinions, thereby further limiting an already small group of “convincible” middle-ground of potential voters. In fact there are even more party-line voters and single-issue voters that have mindsets so etched in stone that even if valid empirical evidence suggests that mindset is not accurate they ignore that empirical evidence. Basically in general there are more individuals who are less likely to even listen to a viewpoint that opposes their personal viewpoint, let alone debate the fine points of either viewpoint, than there have been in the past;

2) Political insidiousness and desire for retaining power has resulted in gerrymandering various Congressional districts, which has also been indirectly related to the general break of diversity within a number of established communities creating more homogenous neighborhoods leading to the production of group-think single party voting blocs. Due to the presence of these voting blocs it is very difficult for opposing ideas to establish any meaningful foothold, especially due to the greater polarization of political environments as mentioned in reason one. These areas are a significant reason behind why winning percentages are so high for incumbents.

The above discussion produces an interesting question for Mr. Lessig’s position that the potential influence of unlimited money is the principal threat to the equality of democracy (i.e. a representative democracy that represents each person equally). If theoretically money has no direct influence and little indirect influence on acquiring votes and in practice political science studies have produced conflicting results on the total value of money in an election, can the potential influence of unlimited money in elections really be viewed as the principal threat to democracy?

Another concern with studying the issue of corruption via money is what process is used to determine whether a lawmaker is simply voting on their personal ideals (candidate A voting in favor of tax breaks for corporation W because he (stupidly) believes in the validity of supply-side economics), versus whether he is voting against his ideals to fulfill the Faustian bargain to a corporation (corporation W donated 1.5 million dollars to his previous campaign and plans to donate another 1.5 million to his next, so he votes in favor of tax breaks for corporation W)? This important issue is rarely addressed when discussing money and its potential corrupting influence in politics.

Overall one could argue that the genuine problem with money in politics is that the money is being wasted for minimal advantage advertising instead of being spent on improving the domestic economy through investment or charitable donations. Perhaps the false perception of the advantage of money in politics is the real problem not the actual influence of money. For example Mr. Lessig and others that share his position have noted that it takes significantly more money to be elected to a given position of government now than it did decades ago, but is this statement actually valid? For example typically statements like that do not correct for inflation or how increases in population have increased the perceived advantage for more money, which would be a “natural” occurrence. Also there have been a number of races where candidate A has defeated candidate B despite candidate B outspending candidate A by 5, 6 or even 10x.

However, for the sake of argument assume for the moment that Mr. Lessig’s point about the dangers of money is accurate. The next concern for Mr. Lessig is what can be done about it? If elected president Mr. Lessig would only have the power of the Executive branch of government in which to act against the Citizens United ruling, a branch that has little to no real power to produce the type of change that Mr. Lessig desires. One could argue that his election would produce a “mandate” to challenge the Citizens United ruling, but what real power would this challenge have?

First, the idea of “mandates” are really only political theater anyways for in the past there was some level of concession by the opposing political party with the acknowledgement that “the will/voice of the people” had spoken and it would be inappropriate to obstruct the plans of the new administration and/or Congress out of petty spite. Of course that was then, the political climate now has certainly revealed that petty spite is fashionable. Mr. Lessig is certainly aware that the Republican Party, which has taken advantage of this new environment more so than the Democratic Party, would be his main legislative opposition to accomplishing his goal? Simply “invoking” the “mandate” of his election will not be sufficient to make them allies or have them “fall in line”.

Second, even if Congress did act against the Citizens United ruling, what could it do that would not be challenged in the U.S. Supreme Court by the proponents of the ruling? It stands to reason that the current existing U.S. Supreme Court would overturn any legislative action that sought to weaken the “freedoms” granted by the Citizens United ruling. It has already demonstrated this motivation to some extent in American Tradition Partnership, Inc. v. Bullock rejecting a Montana state law that limited corporate campaign contributions even after the Montana State Supreme Court ruled that the law was narrowly tailored enough that it withstood strict scrutiny.

Realistically it appears that at the moment only two things will allow for the restriction of excessive amounts of money from the political system. First, a change in the political ideology of the U.S. Supreme Court and a re-evaluation of the legal structure of the Citizens United ruling regarding the potential for corruption in the political system due to the influx of money resulting in this new Supreme Court overturning the Citizens United ruling, similar to how Brown v. Board of Education overturned Plessy v. Ferguson. Second, a new Constitutional Amendment explicitly addressing the issues associated with the Citizens United ruling, with the most popular type of amendment eliminating the ability of a corporation to be considered a “person” in the context of free speech. Outside of these two strategies, what can be done? Mr. Lessig’s emphasis about the advantage of focus, limiting money being the only issue behind his presidency, has little meaning for it is not a limiting factor in accomplishing his goal; the issue cannot be solely resolved by effort and trying hard. The limiting factor is the probability of success associated with the limited number of available strategies.

Another concern is the idea that a single-minded focused mandate, which the election of Mr. Lessig would represent, can be established solely because polling information report that 80% - 85% of those polled, with little difference between political affiliations, believe that the potential of unlimited money in the political system is a big problem or “rigs the system”. Unfortunately, something the environmental movement is intimately familiar with is that just because a vast majority thinks a certain way in isolation does not mean that same majority is willing to work to accomplish that viewpoint. Basically while 80% of those polled consistently want money out of politics, how important is it to them to accomplish that goal, i.e. will they prioritize removing money from politics over various other economic issues, foreign policy issues, environmental issues, etc?

As it currently stands based on previous actions, these respondents and potential voters appear to think the removal of money from politics is not very important because where are the droves of candidates making the removal of money from politics their number one campaign issue because it is so important to their constituents and will dramatically increase the probability of getting them elected? Basically if so many people think that money is rigging the system and that resultant corruption is of the utmost importance to address, there should be no difficulty finding numerous candidates that will vote to eliminate money from the political process on the most stringent level allowed by law versus tying their ideals to the pocketbook of corporation y or donor z. Clearly, and unfortunately, this is not the case. On its face it appears that Mr. Lessig has fallen into the typical single-issue trap of thinking that because the issue is very important to him, it must also be, guaranteed without question, very important to a lot of other people.

Some could argue that an important response is to increase the power of transparency in the contribution system by disallowing individuals to make anonymous donations, produce anonymous pitch material, etc. The general idea behind this belief appears to be that through the creation of a political environment where individuals that donate large sums of money must make those donations in a completely transparent manner and those that use the money must outline how it was used it, the probability of immoral actions will be reduced significantly limiting the overall negative influence of money in politics.

The problem with this strategy is that it does not address the saturation mindset. It stands to reason that most people believe that all candidates are taking money from some form of special interest and/or large corporate donors (even the small third party ones regardless of whether or not they actually are), so no candidate is “clean”. Some could counter-argue that if potential voters are made aware of monetary donations and expenditures then they could seek out candidates who have received no money or significantly less money and characterize those candidates as “not beholden to special interests”. The concern with this reasoning is that receipt of donated money becomes a single issue. It is difficult to envision a scenario where an individual votes against a candidate that shares his/her viewpoint on a wide variety of issues if it is revealed that the candidate has taken a lot of money from special interest groups.

Therefore, ‘taking money from special interest groups’ will be regarded as just one of many issues that is considered by a voter when deciding on which candidate to vote for. Unfortunately due to the fact that messaging and access is heavily influenced by money it seems very probable that very few candidates will refrain from taking special interest money when available to them, regardless of any transparency requirements. If this scenario comes to pass then with every viable candidate feeling it necessary to take money, the previous public psychological assertion become true: everyone is taking money, everyone is dirty, thus it does not matter who takes money. Certainly establishing transparency should be done because it is a logical and fair idea and will help increase the probability of more complete information profiles on candidates for potential voters; however, without offering an effective way to remove money from the system, it is unlikely that any transparency strategy will have any real positive effect regarding money in the political system.

Another option put forth by Mr. Lessig, among other parties with other systems, is the idea of Democracy Vouchers where tax rebates to a certain value (currently $50) are reserved for the exclusive donation to a certain political campaign or issue. The belief is that by resorting to a law of scales, volume will be able to cancel out the influence of the high value low volume donor class, which is viewed as the chief problem in the system. Unfortunately this type of plan is flawed in numerous ways. The chief flaws have already been discussed in a previous post here. Another potential flaw in Mr. Lessig’s personal idea is that because the vouchers are tax-based there would be some question to whether or not individuals who do not pay taxes would also receive the $50 or be shutout. If they were shutout then clearly such a program would not be living up to Mr. Lessig’s idea of an equal representational democracy.

Overall the idea of attempting to defeat “bad money” with “good money” be it from the public or from “good PACs”, etc) is rather foolish because of issues regarding sustainability in that what government programs get cut each year due to the loss of billions of dollars returned to the public to “invest” in politics and simple practicality for the polarization of politics have heavily limited the coordinated influence of volume politics. For example in its initial attempt to influence the political landscape in 2014 Mr. Lessig’s personal Super PAC, Mayday, was a significant failure. Basically plans like Brennan Center-Democracy 21 Federal financing and Democracy Vouchers a more likely to exacerbate the problem of money in politics, not act as a “correcting” force if they do anything at all.

On a side note while the idea of a “referendum president” is somewhat interesting, its general characterization can be looked upon more as a novelty than anything significant especially because without a definitive timeline for when the resignation would take place, voter decision-making becomes complicated. For example it is concerning to think how a “referendum president” would handle a catastrophic domestic or foreign event? Would the Vice-President simply handle those potential events? Who would foreign leaders interact with when addressing foreign policy? Etc.

Overall the idea of removing money from politics in effort to ensure a fair democracy and minimize corruption does not appear to be an effective battle strategy to ensure these characteristics. The concern is both the ability to remove money and whether or not money is actually a real problem. A fair and effective democracy is served by three essential elements: voting access, informed voters and voting power. In this country none of these elements are at what one could say “full strength”.

The first element to a fair and effective democracy is ensuring appropriate voting access where the requirements one must meet to be eligible to vote are fair, universally applied and transparent. Unfortunately this simple requirement is not being met by a number of regions; instead these areas are attempting to circumvent fairness by forcing individuals to acquire some form of governmental issue photo identification at personal cost under the false pretense of preventing voter fraud. Such unnecessary and frivolous demands are much more dangerous to a fair and effective democracy than potential unlimited money because it directly influences who can vote.

The second element to an effective democracy is ensuring an informed and motivated electorate. Recall that the principal role money plays is information exchange. Therefore, the best way to make money irrelevant is to create an informed and committed electorate invalidating the purpose of money. The point of a representative democracy is that voters who vote for the winner feel that their viewpoints are being presented and fought for in the appropriate governmental body. The influence of money is only negative when that expectation is not met; when those who have voted for the winner do not have their elected official arguing in favor of their viewpoints instead that elected official is arguing in favor for viewpoints that contrast or are not important those of the majority at the behest of a wealthy donor minority.

The best way to expose this betrayal of duty is an informed and committed electorate, one that knows what they want out of their elected official(s), not one that simply holds on to old ideas and/or votes a single-party ticket solely because the candidate has a certain letter besides their name on the ballot. If the electorate does not choose to inform themselves then it is difficult to judge whether or not money is corrupting the process; however, the electorate must be given tools to access the appropriate information. Therefore, candidates must be obligated to produce information packages regarding important issues and their stances on those issue that can be distributed via mail, posted online or with existing hard copies at government buildings and libraries. A guaranteed information source will allow voters to inform themselves in a non-bias or “spin” manner.

The third element to a fair and effective democracy is currently the one most lacking of the three. Unfortunately there is a significant lack of honesty and logic in the political process, which significantly hinders the total expression of voting power. For example a politician can make statement A to the public, but actually support an opposing position and as long as the public is not able to discover that opposing belief in time, the politician can be elected on a basis of false pretenses. This reality is especially relevant when the position of a corporation and large political donor may be in direct contrast with the position of the general public. How can voting have any real power when a politician can simply lie about his/her position until elected?

Some would argue that if an elected official lies about what they would seek to accomplish the only real response is that the public takes the philosophy of “fool me once shame on you, fool me twice shame on me” and when the individual comes up for re-election vote him/her out of office. However, what type of display of power is that? Lie and get some number of years of guaranteed elected office? How is that fair and just? Therefore, what type of process can be used to sort out false statements? Should each candidate be expected to produce a “beliefs” contract that if deviated from once elected would produce just cause for termination from that position? If this occurred what would be the process for the candidate to change his/her opinion on an issue if a mistake in reasoning was discovered? It stands to reason that a new system is needed for clearly the existing process of recall is not sufficient to ensure the power and wishes of the majority of the electorate.

Overall the potential candidacy of Mr. Lessig for President of the United States appears inherently questionable because the methodology Mr. Lessig supports for removing money from politics is unclear and the most plausible options are either not viable or are not significantly aided by Mr. Lessig being President. Incidentally attempting to remove money from politics through a direct “limitation” by neutralizing the Citizens United ruling seems very difficult at this point in time and without any real probability of success any attempt would result in wasted effort and resources. Instead of attempting to neutralize money through its forced removal or by countering it with even more money, focusing on neutralizing the influence of money through voter empowerment and ensuring voter influence should be a more viable way of facilitating a legitimate, fair and effective democracy.

Should life in prison really be life in prison?

When one considers controversy in the criminal justice system one of two issues immediately come to mind: 1) the death penalty, where effective arguments exist for both the pro and the con sides; 2) racism in the criminal justice system, where debate is typically over-emotional and illogical on both sides, especially from those complaining about the extent of racism; however, the widespread focus on these two issues draws attention away from other meaningful issues. One of these interesting issues that receive less attention is the question of justification for sentencing someone to life in prison without the possibility of parole.

Not surprisingly there are a number of people who believe the judicial system should not have the capacity to hand down a sentence of “life without parole” (lwop). An aspect of this argument has been bolstered by three separate United State Supreme Court rulings, Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, where it was held that it was not Constitutional to sentence juveniles to the death penalty or a mandatory life in prison without parole sentence regardless of the type of crime. Emboldened by this ruling a number of individuals have attempted to further advance this position to include eliminating lwop sentences all together or at least just expand the breadth of these ruling to young adults, arguing that a lwop sentence is a de facto death sentence.

Furthermore the argument goes that the general nature of a lwop sentence is not based on rehabilitation because the individual in question is never getting out of prison, it is a mixture of punishment and deterrence for other potential actors. However, the influence of this meaning is less relatable to juveniles and young adults due to their emotional and mental development. Proponents of the above position believe that time is the most relevant factor in “decriminalizing” individuals for the frontal lobes mature and, in men, testosterone levels decline reducing the probability of aggressive and impulsive behavior. Basically time is a superior method to reducing crime probability versus hoping young people view individuals similar to themselves incarcerated for the rest of their lives and come to the conclusion “I better not do that”.

In fact some may simply come to the conclusion “I better not get caught” suggesting a time old thought regarding crime, the probability for the certainty of punishment matters much more than probability for the severity if punished when considering the commission of a crime. Therefore, based on this reasoning these individuals argue that sentencing individuals, especially the young, to life in prison without parole does not serve either society or the individual in question.

Some have also argued that the deterrence factor does nothing significant to limit the occurrence of crime derived from passion for rarely do individuals calculate the benefits and consequences before engaging in an emotionally driven response. However, this argument is rather weak in its validity for most emotional actions do not typically produce a crime that will result in a lwop sentence upon conviction. Understand that lwop sentences rarely occur outside of homicides, most notably a Murder 1 conviction, which seldom have acute emotional components, even in felony murder cases. The general conditional pre-requisites for charging an individual with Murder 1 involves 1) premeditation; 2) willfulness; and 3) deliberation (typically with malice afterthought);

This above argument regarding passion and emotion creates concern in that the chief problem with attempting to expand the “lack of maturity” argument to lwop sentences is the nature of lwop crimes typically do not involve lack of maturity or emotional development as a meaningful factor. Basically regardless of the level of social, mental or emotional development, any individual without some form of brain damage should acknowledge that the elements involved in the crimes that warrant such a sentence (vicious and premeditated homicides or homicides in the course of committing other high level felonies like armed robbery, kidnapping, etc.) are against the law and consequences for their commission will be severe. One does not need to be a fully matured and emotionally stable 26 year-old to know that shooting someone in the chest with a .44 is not a good thing and will be harshly punished. One of the chief reasons for a differing stance between juvenile treatment with the death penalty and lwop sentences is the finality of the death penalty eliminates the ability to overturn mistakes in the judicial process.

Another aspect of weighing lwop sentences on young single count offenders is will the elimination of these sentences serve the concept of justice? For example if 20 year-old person A murders 20 year-old person B with all of the necessary elements to justify a Murder 1 conviction what type of sentence would represent justice? Realistically it can be argued that person B was robbed of at least 40 years of life, if not more, so should person A pay in a year for year context? If person A is only incarcerated for 20 years is that justice? Basically what type of punishment represents justice when one person blatantly takes the life of another?

Some would argue that keeping Person A in jail for the rest of his/her life is a miscarriage of justice because ending Person A’s life on de facto grounds does not serve the public interest or the interest of justice, it simply steals an additional life ruining two lives instead of one. However, the counterargument is that Person A can still have productive and positive experiences despite being in jail, something that Person B can no longer have at all.

It could be argued that the deterministic aspect of “without parole” is the problem for individuals who are sentenced to life with the possibility of parole are not guaranteed to acquire parole. Therefore, the elimination of this mandate would allow experts and individuals with intimate knowledge of specific prisoners to judge whether or not an individual remained a threat to society and if justice had been done. Individuals who favor judicial discretion in general would agree with this position for they are from similar molds.

Of course the counter-position is that there are a number of individuals who have received parole after committing violent crimes, i.e. been judged no longer a threat to society, and soon after their release committed similar or worse crimes resulting in their re-arrest and incarceration. Therefore, the issue of simply revoking the very idea of life without parole encompasses the idea of certainty. Should a population of prisoners who have “turned their lives around” be denied the possibility of parole to prevent another population of prisoners from manipulating such a system to acquire release and the ability to continue their criminal enterprise?

Another factor for consideration is how influential is the threat of a lwop sentence in “convincing” an individual to take a plea bargain, thus saving the state or Federal government money, time and other resources in not having to prosecute a murder case, which are frequently significant. If this influence is meaningful, then the loss of lwop sentences could result in a greater probability of delayed or even lost justice for the court system would have to deal with a greater influx of cases creating a backlog.

One of the more widely known important elements to supporting the elimination of “without parole” conditions on sentences is the belief that the prison system can produce sufficient rehabilitation potential. While existing track records are mixed in this regard, evidence does exist that prisons produce a means for individuals to “get it” and turn their lives around. Unfortunately for supporters of the various positions surrounding the elimination/reduction of sentences there is another important element in this process, which while receives lip service now and again, does not receive any significant level of public or political support: how to reincorporate criminals, especially those who have been incarcerated for a long period of time, back into the economic fabric of society?

This question is especially troublesome now for while it has almost always been difficult for criminals to re-acclimate themselves into society on some level, as society currently stands there are a number of individuals without criminal records have not been effectively incorporated into the economic framework who will be competing with these newly released criminals. Without the ability to incorporate newly released criminals, especially those serving long sentences for violent crimes, the probability of recidivism is high, regardless of age and emotional/mental maturity. Sadly this is a question that proponents of eliminating lwop sentences largely ignore kicking the proverbial can to the general “prison reform” crowd. This behavior is questionable because how can one in good conscious seek to eliminate “without parole” sentences whether for juveniles only or entirely without addressing this important question of economic incorporation? Some may argue that it is not fair to leave an individual in jail while this issue is addressed, but is it fair to society to release people that cannot be properly reintegrated?

The final major question regarding the elimination of “without parole” sentences is how to address the psychological impact of prison influencing an individual’s ability to live in general society? There is reason to believe that a number of inmates suffer from a form of institutionalization after a sufficient period of time in prison, which will negatively impact their ability to reintegrate themselves successfully back into society.

One particular change in psychology that could be significantly harmful to reintegration is the increased level of apathy, passivity, and isolation commonly seen from institutionalism.1 One of the more stereotypically, yet still true “rules” of prison life is stay invisible unless you are struggling for power; doing so means keeping your head down and your mouth shut. Unfortunately society has moved to a point where it almost exclusively prefers people be loud and expressive; in fact it appears, at least in the manner of public notoriety, that the motor-mouth arrogant frequently incorrect braggart is preferred over the stoic well-meaning fact-giver. Basically what is expected for “success” in prison life versus what is expected for “success” in “normal” life is largely contradictory. So how is this situation resolved? One could require inmates released after large incarceration periods psychological assistance from trained professionals, but who pays for this service?

Overall there are some important issues regarding the elimination of “without parole” qualifiers on sentences that go beyond simple age. The most noteworthy and important ones relate to the nature of justice, both in punishment and how such a change would influence courts, how long-term prisoners can be incorporated economically into a society that is leaving behind non-prisoners at ever increasing rates and how the potential psychological changes born from institutionalization influence reintegration? Until satisfactory answers can be produced for at least these three questions, notwithstanding other smaller more specific questions, the idea of eliminating “without parole” qualifiers in criminal sentencing seems inappropriate; remember individuals serving these sentences are not akin to those jailed for punching a guy in a bar for hitting on “his girl” or dealing small quantities of marijuana without a license in a state where it is legal by state law, but instead were convicted for very serious crimes that almost always involved the loss of at least one other life.


Citations –

1. Johnson, M, and Rhodes, R. “Institutionalization: a theory of human behavior and the social environment.” Advances in Social Work. 2007. 8(1). 219-236.

One Sexual Offense Fits All?

It has been said, ““precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” [Weems v. United States]. However, punishment for a crime is not exclusive to the domain of incarceration. For most criminals there is the social stigma of being a criminal, which significantly limits their economic, political and societal power and influence. In the case of individuals convicted of sexual based offenses this stigma is typically enhanced. While nothing can be done about the subjective stigmas assigned to criminals by other individuals regardless of the type of offense, when one looks at the administrative burdens applied to individuals convicted of sex offenses versus other types of crimes, including murder, one wonders whether or not such exclusive and additional punishment is a violation of the Eighth Amendment of the Constitution.

After the period of incarceration for a sex offender has concluded the typical administrative burdens applied to that individual encompass restrictions on residency based on the surrounding area most notably they cannot reside within some fixed specified distance from common areas where children congregate like schools, daycare centers, parks, bus stops, etc; in some situations if such an area is constructed after the individual has established residency in a particular location the individual will be forced to move (some states have grandfather clauses that do not require a move some do not). In addition sex offenders must check in with local law enforcement when moving to a new address, changing employment, changing their legal name, etc., and depending on the state have to reaffirm these notifications after a certain period of time. Finally their names are listed on a public database for a period of time that may not be commensurate with their current relationship with their local environment. Basically their name could be on this list 8 years after the incident that resulted in their conviction and after moving to an entirely new community in which these individuals have lived without incident.

To understand these administrative requirements one must attempt to understand their philosophical origins. Most sexually based crimes illicit a guttural and emotional reaction typically leading to a characterization of repugnance, that strangely enough at times, exceed the disgust one feels towards murder or other higher level crimes. The original intent of the sex offender registration list appears born from at best a psychological compromise to provide a level of deterrence from recidivism by limiting the available opportunities that could lead the individual to repeat such criminal action or at worst as an additional punitive measure because it was not legally viable to incarcerate such an individual for a period of time typically demanded/anticipated by the public in reaction to the crime.

Unfortunately this compromise has evolved into a “one size fits all” punishment moving beyond the once applied standard judicial review and discretion. It tends to no longer take the nature of the sexual offense into consideration beyond broad “milestones”. For example all would agree that there is a significant difference between a 19 year-old male having sex with a consenting 16 year-old female and a 29 year-old male raping a 16 year-old female via a drugged beverage. While these differences are certainly reflected in the incarceration portion of the punishment they typically are not reflected in the administrative/societal portion of the punishment.

Basically while both individuals from the above example are technically sex offenders, the fact is that in most situations there is a tiered structure that is so broad in its administrative penalties that the level of judicial discretion is non-existent. In a sense the application of administrative punishment can be viewed as generally lazy, disinterested in determining the actual threat posed by the individual to the community instead labeling all as viable and credible threats.

There are two pertinent court cases pertaining to the issue of sex offense and the Eighth Amendment. First, in Graham vs. Florida the United States Supreme Court adopted the position that non-capital sentences for minors, adding to capital sentences held in Roper vs. Simmons, could be found unconstitutional under a proportionality review. This proportionality review can fall within two general classifications: 1) challenges to the length of a sentence dependent on the circumstances surround the case in question; 2) cases in which the Court implements the proportionality standard by certain categorical restrictions. The important element to Graham vs. Florida with regards to the above topic is that it set the precedence that categorical Eighth Amendment proportionality reviews could be applied to non-capital offenses, moving beyond the idea of “death is different”.1

Second, in Ohio v. Blankenship the defendant claimed that his classification as a Tier II sex offender pertaining to the crime of having a sexual relationship as a 21 year-old with a consenting 15 year-old with full knowledge of her age resulting in a conviction of a single count unlawful sexual conduct was cruel and unusual punishment. This claim was based on the administrative penalties associated with that classification (largely associated with having to register as a sex offender for 25 years) in contrast to the threat he provided as a possible future repeat offender.

The Ohio Court of Appeals ruled against Blankenship determining that existing legal remedies were not available because he was an adult when he committed the crime versus being a juvenile, thus a previous ruling (related to C.P., 131 concerning juveniles) was not applicable and that he was in fact a sex offender, thus the current legal structure in Ohio was applicable. Blankenship appealed to the Ohio Supreme Court, which held arguments in early March 2015; as of this posting it appears that no ruling has been made regarding this case, but a number of individuals believe that the ruling could go either way. So currently while it is legally and theoretically possible to find the administrative penalties associated with conviction as a sex offender unlawful via the 8th Amendment, no court has current done so.

Some could argue that there is an important distinction in statutory rape cases between an individual who has accurate knowledge of the age of his/her sexual partner versus having inaccurate knowledge through deception or misinformation. On this issue the point of willing culpability is irrelevant. For example there is no meaningful difference between a 19 year-old having sex with a 15 year-old where both parties are fully aware of the age of the other versus a 19 year-old having sex with a 15 year-old who has lied to the 19 year-old claiming an age of consent (18 year-old).

Such consideration would be akin to facilitating punishment based on whether or not an individual was aware that he/she was speeding. Whether or not the individual knows he/she is speeding is irrelevant to the fact that the individuals was speeding and violating that particular law. Furthermore the issue is not whether or not an individual who commits statutory rape or a similar low level sex-based crime is a sex offender. By law the individual is a sex offender, the issue is the assigning the appropriate punishment for the committed crime in all aspects, i.e. is it appropriate that an individual convicted of sexting receives the same administrative punishment as an individual convicted of rape?

An interesting point of fact pertaining to the validity of the administrative penalties associated with non-violent sex offenders is that the general recidivism rate for sex offenders has been demonstrated numerous times to be lower than any other crime except murder.2-3 An interesting point of contention could be made regarding this data between parties that agree with board mandatory classifications and parties that disagree.

Proponents of the administrative penalties could argue that this lack of recidivism is due to the harsh administrative restrictions placed on sex offenders heavily reducing the temptations and opportunities for recidivism. Opponents of these penalties could counter-argue that this lack of recidivism is because most sex offenders are not sexual predators, but simply do something stupid early in their lives that get them labeled and convicted as a sex offender through some basic non-violent sex-related crime like sexting a consenting individual or statutory rape with a consenting partner. While the truth is unknown, opponents are more likely correct than proponents because the data encompasses a time frame for some of these analyses where the harsher administrative penalties were not entirely applicable.

An important element to whether or not the 8th Amendment can be applied on this particular issue, especially with regards to the sex offender registry is whether the registration is viewed as punitive or civil; a characterization as punitive should increase the probability of relevance in applying the 8th Amendment versus a civil characterization. In most cases it is difficult to argue that the registry is not punitive in nature with the administrative hurdles that are assigned to those on the list, especially concerning the living restrictions. It stands to reason that if the only demand of the list was public access and an accurate name and address then it would be more civil in nature; however that is currently not the case.

Based on existing information it is difficult to argue that the sex offender registry serves an important role in protecting society from a large number of individuals convicted of sex offenses because those individuals are not a threat to society. Furthermore the additional elements of societal stigma and restrictions of freedom produced through association with the list could constitute a disproportional punitive response to the crime, especially when that association is not subject to judicial review, but mandated by a state or the Federal government. For example it could be argued successfully that for a vast majority of individuals who are convicted for the first time on a single count of a non-violent sexual-based crime, registration as a sex offender is not appropriate, therefore could be appropriately challenged as a violation of the 8th Amendment.

An interesting side note is that defining mandatory registration as a sex offender as a violation of the 8th Amendment may be necessary to properly apply justice even if it not legally appropriate. In short associating this scale of punishment to the 8th Amendment may be the only way to give politicians the political cover they need to continue to publicly assert their “tough stance” against sex offenders of all shapes and sizes, but also have appropriate punitive punishment based on the type of sexual offense. Basically while applying an analytical system of judgment regarding the threat potential of a sexual offender to “relapse” is logical and compliant with justice, forcing such a system on states through association with the 8th Amendment may be necessary due to political concerns.

However, while the courts have almost always been at the forefront for social change, would it be appropriate to make this association even if it were not valid? What type of slippery slope would that produce? On an even larger scale what can be done in a democracy when the majority is not interested in changing its opinion regardless of any arguments counter to their opinion? Overall when thinking from a non-emotional logical perspective mandatory registration for most single count sex offenders appears inappropriate, not surprisingly producing a path to properly appreciate that viewpoint legally is the more difficult problem.

Citations –

1. Shepard, R. “Does the punishment fit the crime? Applying eighth amendment proportionality analysis to Georgia’s sex offender registration statute and residency and employment restrictions for juvenile offenders”. Georgia State University Law Review. 2011. 28(2) Article 7. 529-557.

2. BOJ Recidivism of Sex Offenders Released from Prison in 1994, November 2003 http://bjs.ojp.usdoj.gov/content/pub/pdf/rsorp94.pdf

3. U.S. Department of Justice Criminal Offenders Statistics: Recidivism, statistical information from the late 1990s and very early 2000s.