The Nature of Protesting

As long as opinions exist human beings will engage in protests against those things with which they disagree. Unfortunately for protesters the general rate of success is rather dismal because most protesters have seemingly forgotten the purpose of protesting and its inherent limitations, especially in modern society. How can protesting become a useful tool for establishing change versus simply being a mobile echo chamber of time wasting annoyance and/or criminal behavior?

The major purpose of protesting is to cast attention to a given issue and either inform others who have the power to influence change or those who are also affected by the issue of its importance and the need for change, but may not already be aware of it. In modern society, especially a Republic or Democracy, the secondary goal of a protest is to act as a persuasion tool to convince others that the issue of the protest is meaningful and worthy of attention. This attention hopefully will lead to a stronger and more unified front for change against the particular issue increasing the probability that there is change.

One of the chief problems with modern protesting is it is imbued with too much emotion and not enough logic. It is understandable that there is an emotional element to protesting for either the acute veracity of a singular event or chronic weight of numerous smaller events typically produces an emotional driver to facilitate individuals into taking the time and effort to publicly air their grievances. However, this emotional aspect of the event(s) underlying the motivation for the protest has lead protesters to make disadvantageous decisions and actions in the process and/or administration of the protest.

Emotional responses and drivers apply an illogical conclusion to believe in a greater necessity to increased frequency of protesting, which relative to the purpose of protesting is commonly detrimental. Basically protesters protest action/policy “y” at greater frequency than they should, because the cause is so emotionally important to them. However, when major protest events occur within close temporal proximity, the impact of those protests towards those not already in support of the “cause” is lessened and even potentially damaging to the success of the cause. For example the group known as “Black Lives Matter” have fallen into this pitfall in their recent activity.

Part of the problem with multiple protest events over a short period of time is it portrays the organization as disingenuous to actively seeking change versus just simply seeking personal attention or notoriety. Most major protests, especially those that spawn organizations to manage the desired change, focus on a meaningful, yet large-scale issue that requires time, resources and effort to produce change. However, multiple protests over a short period of time lead those who do not immediately agree with the protests to conclude, somewhat correctly, that the protesters are not serious about their so-called desire to produce change because they do not understand the process in which that change will occur, if it occurs at all. This attitude will lead individuals to conclude that the organization and perhaps even the cause itself is not worth focusing on, especially in a world where there are already so many other “meaningful” problems.

Some may counter that protests do not just serve as a means to cast attention on a given issue or even rally like-minded individuals and convince “on the fence” individuals, but also to provide an avenue to a frustrated demographic to vent… so to speak. While this initial argument has some merit, its value is only relevant so long as the protests do not significantly interfere with the lives of others in society, for example by stopping/blocking traffic or reducing the effectiveness of economic activity. One may like to punch the air to vent; however, it is not appropriate to punch air that another person’s face is filling. Using violations of the law as a means to “burn off steam” is clearly inappropriate and heavily limits the credibility of any protest and the individuals and/or organizations responsible for it. Therefore, the argument that mass-scale protests can be used as a means to vent is an invalid one that is simply used as a flimsy excuse.

Also these types of protests that block traffic and/or generally inconvenience others are rather foolish from a standpoint of cost-benefit. By inconveniencing others, especially numerous times over a short time period, the protesters are significantly increasing the probability of producing more enemies to their cause. This behavior is meaningful because whereas an individual may have remained on the proverbial sidelines for the protester’s fight, now thanks to the slight by the protesters, either directly or indirectly, that individual may work against the motives of the protesters, perhaps simply out of spite alone. Some could counter that “you can’t make an omelet without breaking a few eggs” (i.e. disruption of the status-quo is necessary for change), but there is definitely a difference between intelligent disruption and needless/foolish disruption and most protest organizations seem to not understand the difference limiting the validity of that argument in relation to their activities.

Overall mass-scale public protesting is only step 1 in the process of producing change by demonstrating that something is a problem and creating a mindset among the populous that the problem must be addressed with haste in the future. However, the real work to change the problem occurs after step 1, for step 1 does not actually achieve any change. Not surprisingly though the steps beyond public protesting are much more difficult both in their initiation and in determining and demonstrating any actual progress towards the goal/change in question.

Unfortunately these challenges appear to trip up most organizations that materialize in the space of step 1. Either these organizations are not capable of transitioning beyond step 1 or they do not care about the events beyond step 1. This lack of skill, ability, influence, etc. traps most organizations in step 1 for through the act of public protesting, these organizations can continue to demonstrate their so-called relevance for public protesting is easy, especially with access to the Internet and the existence of a non-authoritative government. However, as time goes by these organizations are simply lying to their supporters about their relevance because continued public protests on their own will not produce success towards addressing the change these protests claim to desire. Prominent recent examples of this trap are both Black Lives Matter and Occupy Wall Street.

Perhaps that is one of the more unfortunate problems with these organizations, the idea that the “leaders” of these organizations realize that the organization is ill-equipped to accomplish the change, yet cannot acknowledge that it is time to disband or evolve the organization under the idea that such action would be regarded as failure by supporters. Recall it is much more difficult to demonstrate success from meetings in a boardroom than holding up traffic on the street. Therefore, these leaders instead aim to maintain their positions and any benefits that come from those positions, by simply continuing to focus on step 1 in an attempt to obfuscate their own lack of ability and competency by turning the attention of their supporters to the “evil” of the so-called opponent.

While the above position is rather cynical, it is also true that certain organizations function under such a mindset. However, the transition beyond step 1 has also proven difficult for those non-self-aggrandizing organizations. Thus, these organizations must focus not only on pointing out the problem(s), but proposing detailed and valid solutions to the problem. Unfortunately this is not the case for a vast majority of situations. In a sense the step 1 attitude by most of these organizations can be viewed as similar to Homer Simpson’s campaign slogan in “The Simpsons” when he ran for Springfield sanitation commissioner… “Can’t Someone Else Do It”. Basically the organizations state that they have done the “hard” work of pointing out the problem exist, now someone else can actually fix the problem which the organization will take credit for it.

Even when organizations propose solutions, those solutions are typically lacking with a variety of holes, usually on the details end and probability of application due to the general lack of information and/or bias. For example The Urban League proposed a “10-Point Justice Plan” to address the negative relationship between the black populous and law enforcement. Unfortunately this “solution” was heavily lacking in detail largely associated with general application. It promoted a lot of “universally applied” ideas merely by citing either one program in one particular city or one un-passed existing piece of Federal legislation. Also it was rather bias and generally naïve. A number of elements to the “solution” could be viewed merely as quasi-demands over actual genuine attempts to solve the problem.

However, for all of the problems of the “10-Point Justice Plan”, at least the Urban League produced a starting point in which to produce solutions. Unfortunately the fact that organizations like Black Lives Matter continue to reside in step 1, protest, draws resources and attention away from that starting point, thereby heavily reducing the probability that a long-term solution even materializes in the first place. This type of behavior goes to demonstrate the disconnect between organizations in step 1 and organizations that have moved beyond it, but claim to be “working” towards a solution to the same concern/problem.

Another concern with most protests is the tone and lack of awareness for the existing problem. For example the negative relationship between the black populous and police officers in the eyes of the black populous is thought to be entirely the fault of the police. Of course this is not correct for the black populous certainly does not treat the police with the appropriate level of respect and decorum that is expected for the position, which not surprisingly exasperates problems in the relationship. Part of the problem is a number of individuals in the black populous fall into the same pitfall they claim the police do: stereotyping all police as out to get them racist, just as they believe police believe all blacks are scum-criminals up to no good. Until the black populous acknowledges and corrects this behavior of stereotyping police officers as racists, among other things, the relationship between the black populous and the police will remain strained for it is not a one-sided problem.

Furthermore some may believe that protesting works because they look to the past and see the fruits and successes of protests. Unfortunately in the process of looking upon days long gone there is a lack of understanding in how society has evolved. These successful protest movements were able to demonstrate the power of the protesters to effectively influence society due to their integral role in society. For example The Montgomery Bus Boycott was built entirely around the fact that the general economic survival of the bus company was dependent on its black customers.

Unfortunately for protesters, over the last few decades economic development and technology has significantly altered the way the economy functions. Globalization and the Internet have generally decoupled major business from their proximity and those local consumers. Therefore, local protests tend to only impact local businesses, which frequently only damages the local infrastructure, which can cause more harm overall than what the protesters are protesting against. So while in the past, protests could apply more direct pressure, now the manner in which society has changed mitigates a lot of that direct influence and power. In some respects it can be argued that there are just too many people for protests and boycotts to really have any significant influence economically. Now such influence is regarded more as mere annoyance to outright criminal behavior that does not win allies.

In a democracy change demands voting and placing individuals in power that will produce that change. Unfortunately while step 1 attempts to create the necessary attention to get prospective voters to care about the issue, it does nothing beyond this element. A lack of voting is definitely one of the major reasons why despite all of the protesting in the world, so little genuine and meaningful change has actually occurred on most issues.

This voting issue has been largely noted in minority communities with reference to the local governing body via claims that minority demographic x makes up 72% of the voting eligible population, but the local government is 80% white and how this is wrong. However, this point is rather devious and inappropriate. It is important to note that that it is bias behavior if an individual with demographic characteristic x votes for a candidate solely because he/she shares that demographic characteristic (i.e. a black person votes for a black candidate solely because he/she is black or a Jewish person votes for a Jewish candidate solely because he/she is Jewish, etc.)

This demographical point is rather idiotic to make because a democracy is not structured in such a way that government officials should proportionally represent the electorate demographic; the point of a democracy is government officials should pass policies and govern in a manner that is approved by the majority of voters. However, the above statement commonly made by minority “activists” regarding certain communities being 72% x, yet 80% of government/civil servant positions being white portrays a racist/bias mindset of x should be represented in more government positions solely because the electorate is some % of x. Therefore, it is important that individuals vote and that are informed enough that they vote for officials that will best represent their interests regardless of whether or not those individuals share certain characteristics.

In the end individuals/organizations who seek to produce change by initiating protests must understand that protesting can only cast attention to a given issue. Gone are the days when only protesting can produce valid and meaningful solutions. These solutions are produced later through honest detailed analysis of the problem to produce an appropriate guideline and outline of a solution and then hard work and commitment to turning that guideline into a functioning solution. protesters must be wary though of alienating both potential allies and advisories through excessive protesting, especially the latter. Excessive protesting can definitely spur the passions of potential advisories to work harder to defeat the protester(s), not necessarily because they passionately disagree with the idea/object of the protest, but because of scorn directly towards the protesters themselves. Overall protesters must focus on advancing detailed and thorough solutions to issues they view as problems rather than focusing on simply protesting those problems with no or only piecemeal superficial solutions.

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.

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.

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.

Appropriate Police Response to Arresting a Non-Violent Offender

Police officers are one of the most important, yet least respected occupations in society. Too often their duty is marginalized and their mistakes amplified. This lack of respect for their position has created greater difficulty in performing even simple acts like placing an individual under arrest for even an obvious and public crime. Interestingly this increased complication raises an important societal question: how should a police officer arrest an individual who is clearly violating a law in a public space and resisting arrest in a belligerent, but non-directly violent manner?

Resisting arrest typically involves at least one of the following actions: 1) threatening a police officer with physical violence during the process of being arrested; 2) physically assaulting a police officer during the process of being arrested; 3) fleeing from a police officer after the officer announces the individual is under arrest; 4) physically resisting and struggling from being restrained during an arrest attempt. Under the above definitions there is very little ambiguity regarding whether or not an individual is legitimately resisting arrest. For the purposes of this discussion only the fourth action will be considered. Unfortunately it must be noted that there have been some situations in the past where a police officer has used the guise of a false charge of resisting arrest to freely and unlawfully physically assault a suspect. Obviously this behavior is inappropriate, illegal and should be punished accordingly.

Some would argue that it is not appropriate for an officer to physically harm the individual during an arrest attempt instead the officer should utilize reason and words to convince the individual to yield. However, this reasoning fails to consider the irrationality behind the belligerence of some individuals. Most individuals who resist arrest in the first place will not be easy to reason with because either they reject the premise that they have broken the law and should be arrested or they are so emotional about the confrontation with the police, typically viewing the police as the enemy, that they will not listen to reason.

Therefore, the difficulty in using reasoning to defeat resistance creates an unknown for the time that would be required to convince the individual to yield. This time could range from a few minutes (the belligerence is created by raw emotion) to infinity (the person will never yield). Due to the multiple variance of personality it is unreasonable to suggest that an officer spend more than a few minutes in a public area trying to convince an individual in violation of the law to appropriately submit to an arrest if the resisting individual is not brandishing a deadly weapon. Why this time limit for discussion is necessary is because in most cities the ratio of police officers to resident is around 1-2 per 1,000; therefore, officers do not have the ability to spend large periods of time attempting to convince someone to yield when he may never be convinced. Also repetitive futile talking can be viewed as a weakness emboldening other criminals in the local area for the future.

While the time to produce a breakthrough with discussion is not long, discussion should be the primary strategy utilized to neutralize resistance. Discussion should proceed in a calm non-threatening manner where the officer explains what law the individual has broken or is currently breaking and why this requires the individual to be arrested. The officer, in clear and plain language, should repeat this explanation at least three separate times.

If after a few minutes and multiple attempts discussion has not produced a breakthrough it stands to reason that the officer will have to use force to complete the arrest. There are multiple methods of force that can be applied: 1) physically subdue the individual’s arms in a straight handcuff attempt; 2) punch or push the individual to knock the individual off-balance or off his feet; 3) sweep a lower appendage to subdue the individual; 4) neutralize the individual using a Taser or similar non-lethal method (rubber bullets, pepper spray, beanbag round, etc.); 5) render the individual unconscious using a chokehold. Typically the above methods comprise the “empty-hand submission techniques” and “intermediate weapon” sections of the “use of force” continuum for most police departments.

Of the five above options, the utilization of a chokehold on a non-violent, yet belligerent individual is the worst option because it has the highest probability of an unintended negative consequence including permanent brain damage or even death to the subdued individual. Realistically the chokehold should only be used when an officer is under direct physical assault by an individual with intent to induce bodily harm.

The utilization of force in order to subdue a suspect resisting arrest will always raise the question of what is an acceptable level of force? It is important to recognize that most cases where an officer applies excessive force are committed against restrained individuals and derived from arrogance born from an ego bruised by disrespect. Some officers believe that resisting arrest demonstrates wanton disrespect for both the officer and the police profession and that act of disrespect deserves additional punishment.

Perhaps the excessive force is thought to serve as a deterrent to reduce the probability of future incidence of resisting arrest. Unfortunately these officers forget that resisting arrest is a separate criminal charge in the United States thereby applying its own deterrence. Also the additional “deterrence” may reduce the level of respect the resisting individual has for the police making it more difficult to interact with that individual in the future. It is important that officer training emphasizes this point: that it is not appropriate or beneficial to apply force to an already restrained individual and the additional charge of resisting arrest will produce sufficient punishment.

Another aspect to consider when applying force to an individual resisting arrest is the size of the individual. Obviously it will be easier to subdue a lighter and shorter individual. Heavy and tall males are the most problematic and increase the probability that significant force will be required because they can more easily neutralize more passive force applications like simply attempting to handcuff the individual.

The application of force should follow the same procedure each time. For the first step, after the conclusion of verbal attempts to convince the suspect to surrender peacefully, the officer clearly and succinctly declares his/her intention of utilizing force and what type of force. In the second step the officer applies the first step of force: an attempt to grasp the suspect’s hands and apply handcuffs. If the suspect resists this handcuff attempt the officer should disengage, once again clearly stating the crime that the individual is committing and the need to cease resisting. If resisting continues then the officer should proceed to an additional level of force.

Typically this next level of force will involve either the use of a Taser or pepper spray. After announcing the intention to use either device if the individual fails to yield, a Taser should be discharged aiming for the leg or side of the individual where pepper spray should be discharged close to the eyes.

Using a Taser/pepper spray is advantageous to other levels of force because of its general certainty of ending resistance as well as its limited unknowns. For example punching or kicking the suspect could produce an unintended physical result like the suspect falling to the ground violently increasing the probability of greater damage or internal bleeding. Also punching and kicking could create a catalytic effect amplifying “fight” emotions increasing the probability of more kicks and punches by the officer leading to an excessive force charge.

Another negative outcome, especially against larger individuals, is that utilizing direct physical violence may not resolve the situation immediately and lead to the suspect to become violent himself creating a more volatile and dangerous situation for both the suspect and the officer. Also striking the individual could initiate a flight response leading to the suspect attempting to flee the scene making the arrest more complicated. Finally transferring the confrontation to the ground without the suspect already controlled can be dangerous for the officer as the suspect could attempt to take anything off of the officer’s belt; therefore, forcing the officer to both neutralize the suspect and protect their weapons.

Some could argue that a Tasered individual would also strike the ground in an abnormal and potentially violent manner. While this point is true, the utilization of a Taser will typically involve a more controlled descent with the head striking last. Also the fall will not be immediate giving the firing officer the opportunity to grasp the suspect and positively influence the descent limiting residual damage. It stands to reason that most would suggest the utilization of pepper spray before a Taser because of the reduced potential for severe negative consequences. However, using pepper spray may increase the probability that the suspect becomes violent (while temporarily blinded) or try to flee.

Not surprisingly though the use of a Taser has its own drawbacks. Some organizations, most notably Amnesty International, attempt to document deaths that occur shortly after being struck by a Taser. Estimated numbers range from the low 300s to the mid 500s. However, one of the major problems with these estimates is that the number of deaths is presented in a vacuum. There is no ratio relation of deaths to the number of Taser uses. For example the relevance and impact of 334 deaths is significantly different if 334 deaths were produced from 10,000 Taser uses versus 334 deaths from 1,000,000 uses. Another problem is that it is very difficult to actually associate a death directly with the use of a Taser. A third issue is that these deaths are not associated with requirements of force (i.e. there is no differentiation between whether a Taser was used to neutralize someone threatening lethal force versus non-lethal force). In situations of lethal force, the suspect would have been shot versus Tasered, thus probability of death is either even or lower with the use of the Taser.

Despite the above concerns a vast majority of subjects who are Tasered suffer either small non-permanent damage or nothing.1,2 While some believe that Tasers can damage pacemakers such a conclusion does not appear viable. A potential problem that most opponents of Taser use fail to mention is the need to remove the probes after a successful use. These probes break the skin so they need to be removed appropriately to eliminate the probability of infection or transmission of blood borne disease. While this removal is not a problem it must be executed properly after use. Overall the key to safe outcomes with Taser use is proper procedure. Single use after appropriate and numerous warnings in dart mode, not stun drive mode.

After force is utilized to arrest a suspect and the suspect is properly constrained, it is important for the officer to promptly create a written record of the incident including specific details of the events leading up to the application of the force. For example the officer should describe how the subject was resisting and what efforts were made to neutralize the resistance before the application of force, (i.e. what did the officer say, how did the suspect respond). Producing this written documentation and filing it will ensure limited ambiguity if the officer has to defend his/herself against accusations of excessive force or misconduct stemming from the event at a later time.

While it is unfortunate that police officers have to resort to force at times to manage individuals refusing to acquiesce to proper and legal arrest, the most important factor for police officers when attempting to arrest a resisting suspect is to be transparent and clear with their instructions and actions. Adhering to this principle eliminates any ambiguity and allows the officer to react to the unlawful resistance with appropriate action without the concern of wrongdoing. Such behavior also eliminates any confusion among spectators observing the resisting arrest incident with regards to what is actually happening further limiting officer liability. Finally when applying force the officer needs to be assertive and controlled. Half-actions and hesitation will produce mistakes and excessive action will erode trust and increase complication. Overall officers must have the ability to utilize force when attempting to arrest a resisting suspect even if the resistance is non-violent; however, the utilization of that force must follow a consistent procedure to ensure that it is apply appropriately.



Citations –

1. Pasquier, M, et Al. “Electronic control device exposure: a review of morbidity and mortality.” Annals of Emergency Medicine Volume. 2011. 58(2):178-188.

2. Bozeman, W, et Al. “Safety and injury profile and conducted electrical weapons used by law enforcement officers against criminal suspects.” Ann. Emerg. Med. 2009. 53:480-489.

Black Incarceration Rates: How Much Are They Driven By Racism?

It should be no surprise to anyone who has done their homework that the United States incarcerates the largest number of individuals per capita.1 It is also not a surprise that black individuals make up the largest single demographic percentage of these individuals significantly outpacing their per capita population relative to other race and ethnicities.1 Individuals when discussing the nature of the criminal justice system frequently cite statistics to validate this racial/ethnic disparity. Typically there are two types of responses by most individuals when exposed to these statistics depending on personal perspective: 1) Currently the criminal justice system is unfair to black individuals; 2) black people commit a disproportionate amount of the prosecuted crime. Interestingly enough most people seem to think that these two rationalities are mutually exclusive because rarely does anyone cite both when discussing how blacks and the criminal justice system interact. The question is which of these two rationalities is the chief governing factor behind the incarceration rate for blacks in the United States?

It would not be surprising if at this moment a number of the individuals who prescribe to the first school of thought taking offense to the very possibility of legitimacy for the second rationality, which goes to show the emotional reality of this issue. The chief problem with individuals who lament the number of blacks in prison is that they avoid asking whether or not those individuals actually broke the law and are in jail for legitimate reasons. While there certainly are individuals who have been denied justice and are incarcerated on fraudulent grounds for crimes they did not commit, the simple fact is that a vast majority of individuals, regardless of race or ethnicity, are in jail because they were appropriately convicted a crime.

Addressing the last sentence, realistically there are five explanations for the disparity between incarceration rates of blacks and those of other races/ethnicities:

1 - These individuals are actually committing crimes and are legitimately getting caught supporting the above contention that blacks commit a disproportionate amount of the criminal activity in the United States.

2 - Blacks only commit a small amount of the total crime in the United States, but are less able to conceal their criminal activity, thus their demographic is disproportionally represented in the incarcerated population versus the total number of crimes that are actually committed; this rationality supports neither of the above initial viewpoints.

3 - Bias actively leads the criminal justice system to pursue charges against crime committing black individuals versus crime committing individuals of other races and ethnicities when available evidence is significant in all scenarios supporting the position that the criminal justice system is currently unfair to blacks.

4 – Blacks receive unjustified jail sentences that exceed sentencing guidelines set forth for the associated committed crime supporting the position that the criminal justice system is currently unfair to blacks.

5 - A disproportionate percentage of jailed blacks are innocent of the convicted crime; whether racism played a role in that fraudulent conviction is unclear, but probable for a number of them supporting the position that the criminal justice system is currently unfair to blacks.

The third reason differs from the second reason because of the actions of the individual committing the crime relative to the actions of law enforcement agencies. For example the second reason could be invoked in a situation where a black individual shoots someone in the middle of a neighborhood with numerous witnesses available to testify where a non-black individual shoots someone in a private residence when there are no witnesses, thus there is significantly less evidence to promote an arrest or a conviction. The third reason could be invoked in a situation where the circumstances and scenario of the criminal behavior are similar, but law enforcement agents pursue charges against the black individual instead of the non-black individual. Of course a final point must be made in that for all reasons other than the last one the black individual did actually commit a crime, thus one should not argue that this individual is inappropriately incarcerated.

It is important to consider for the statistics that are frequently cited that suggest racism in the criminal justice system the lopsided nature of non-violent drug offenses. Individuals who use and/or sell illegal drugs make up the largest number of incarcerated individuals (for a specific crime) and it is this crime that produces the most significant portion of the disparity between incarcerated blacks and those of other races/ethnicities. Based on this disparity numerous individuals/groups have claimed that non-violent drug offenses are evidence of racism in the criminal justice system. Unfortunately for a vast majority of these individuals blindly citing the statistics is as far as they go in their analysis. Recall what Mark Twain once said, “There are three kinds of lies: lies, damned lies and statistics.” Without understanding the origins and the “why” behind the raw data that create the statistics, using statistics to argue for a certain perspective is inappropriate and foolish.

With regards to the issue of black incarceration rates a chief point is whether or not drug related crimes are bias against blacks (or to a larger extent minorities in general). However, it is up to those who believe this characterization to prove it; i.e. the burden of proof is on those individuals to demonstrate that drug laws are bias against minorities. There are certain issues that must be addressed by these proponents outside of simply citing statistics.

First, one must analyze whether or not minority users are being sent to jail due to a higher wrongful conviction rates than white users not just arrested at a higher rate despite the arrests being appropriate. To justify this conclusion one would have to conduct an analysis that demonstrated more aggressive incorrect convictions for minorities. For example in county A consider that there are 100 white and 100 black people, 80 black people are accused of violating drug laws with 75 being rightfully convicted and 5 being rightfully acquitted versus 40 white people being accused of violating drug laws with 37 being rightfully convicted and 3 being rightfully acquitted. In this scenario there is no racism as the conviction rates are similar, black drug use is simply higher than white drug use. In a county B consider that there are 100 white and 100 black people, 50 black people are accused of violating drug laws with 45 being rightfully convicted and 5 being rightfully acquitted versus 50 white people accused of violating drug laws with 5 being rightfully convicted and 5 being rightfully acquitted and 40 being wrongfully acquitted.

In the second scenario one would argue racism because the justifiable conviction rate is skewed so much in favor of blacks and typically whether or not an individual is guilty of a drug offense is rather simplistic (i.e. there is little room for subjective rationality or interpretation). Unfortunately those arguing racism must address the issue of unequal justice between economic classes. Despite the contrasting ideological belief in the judicial system, it is widely understood that empirically the poor receive less equitable treatment in the legal system than the rich and a larger percentage of minorities are poor. Therefore, to prove racism in the execution of drug-based court convictions one has to identify a wrongful conviction pattern and then untangle the web of bias between race/ethnicity and economic standing, a difficult task.

A second issue that must be addressed is analyzing the second and third points above by looking at how different races violate drug laws. For example initially when looking at the available information for marijuana arrest rates one could argue in favor of racism in that minorities are arrested at a disproportional rate than whites for drug possession despite similar usage rates, or even higher usage rates by whites (depending on what type of polling information is used). However, this accretion of racism hits a snag when considering how the crime is committed. Middle class and rich individuals, more often white, have resources available to them to make their illicit drug use more evasive than less wealthy individuals. It is inappropriate to suggest that a law is racist if one group has less ability to evade it than another group when there is no selective enforcement intent. Committing a crime in a public area and then being arrested and convicted for it cannot be viewed as selective targeting in any reasonable way.

A third issue that is imperative to making a claim of bias in the enforcement of drug laws is whether or not the law itself is bad. Unfortunately an argument that drugs laws are bad cannot be made as an element of necessity. Individuals that are convicted of various drug crimes are not akin to Jean Valjean stealing bread for his sister’s starving child. One does not need to consume various illicit drugs to survive nor does the consumption of these types of drugs produce unique positive effects that cannot be otherwise derived through legal means. It is also difficult to argue this point rationally on the basis of race with respect to stating that just because one group of individuals are convicted of a given crime that the crime is racist. If this logic were sound then one could argue that if a majority of individuals convicted of embezzlement were Jewish then embezzlement is a bias law.

Based on these three elements of that have yet to be proven one cannot accurately argue that drug laws are racist simply because a lot of black individuals are convicted. In reality a vast majority of black individuals commit a criminal offense involving drugs and are appropriately convicted for that violation. Perhaps one can attempt to rationally argue that certain drugs laws involving simple possession have too strict a penalty from a relative standpoint of their negative influence on society, but as it stands one cannot make that argument on grounds of simple racism or other bias.

That said it would be understandable to move from the issue of crippling bias in their execution, there is the question of whether or not drug laws carry the appropriate punishment. Setting aside mandatory minimums because most people misrepresent their application due to confusion between associated violence and quantity of drugs possessed, some argue that bias exists in habitual offender laws that mandate harsher sentences for repeat offenders. The problem with making this argument is that repeat offenders are not deterred from their criminal behavior by the same level of penalty or certainty of punishment previously accepted hence why they committed the crime again. Individuals commit crimes in order to produce some form of advantage in life. Most individuals either out of concern for the associated punishment or through general positive morality do not commit crimes. However, obviously some individuals are not concerned about the base severity of the punishment or its certainty because they actually engage in criminal behavior. Therefore, what should be the response if an individual continues to violate the law?

It is difficult to argue for the decriminalization or penalty reduction for certain laws simply because one demographic is unable to conceal their violation of those laws. However, some people seem to argue exactly that, but would that strategy actually solve the problem? While a number of minorities, including blacks, are incarcerated for drug crimes one particular demographic of blacks are missing from jail cells, well-off or rich blacks. Rarely does an upper-middle class or rich black person go to jail for simple drug possession, thus most of the blacks in jail for drug possess are low income. What happens to these individuals in a world where drug use is legalized? A number of addicts are unable to identify that they have a problem with drug use, therefore, if the law is unable to “reach” these individuals what will ever stop them from abusing drugs?

While it can be argued that certain laws, most notably some drug possession laws, could be better addressed by court ordered drug rehabilitation versus incarceration, individuals who reference the criminal justice system as racist tend not to make this suggestion. As mentioned above these individuals are so distracted by the number of black individuals in jail that they forget that a vast majority of them actually did break the law they are in jail for. A better strategy would be to decriminalize minor drug possession from any felony to misdemeanors forcing repeat violators to seek treatment or accept incarceration. Some argue for the exact system utilized by Portugal, but those individuals must understand the difficulty of this idea by appreciating the logistics difference between enforcement in the U.S., a country with over 300 million individuals, and enforcement in Portugal, a country with around 10 million individuals.

The best thing individuals can do to help drug users appears to have two prongs: 1) ensure the proper measures are available to identify improper drug use and assign these individuals to appropriate treatment arenas; 2) petition for the passage of a guaranteed basic income (GBI) to ensure that low income individuals have the resources to effectively recover and stay recovered from any drug addiction.

Overall drug law enforcement is not racist and because most of the prison demographic disparity occurs through drug laws, the disparity itself is not racist. If one wants to argue for a different way to respond to those who violate certain laws over simply throwing the individual in jail that argument needs to be done logically not through inaccurate over-emotional race baiting because while on a whole the criminal justice system is not perfect, blindly proclaiming it racist is foolish.


Citations –

1. Carson, A, and Golinelli, D. “Prisoners in 2012 – Advance Counts.” Department of Justice. July 2013. http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4737