I’m delighted to report that my colleague Prof. Mark Kleiman — one of the leading criminal justice policy scholars in the country — will be guest-blogging next week about his new book, When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton University Press, 2009). Readers of this blog and of Prof. Kleiman’s doubtless realize that he and I differ on many things, but I’ve long admired his work, and think our readers will find it very interesting. Here’s his paragraph-long summary of the book:
We have too much crime and vastly too many people behind bars. Is it possible to have less of both? Yes, if the criminal justice system can learn what everyone who has ever successfully raised a child or trained a puppy knows: the right amount of punishment is the minimum that gets the message across, and that minimum effective dose is smaller if rules are clearly communicated and if punishments follow violations swiftly and predictably. There are now working examples of successful strategies based on these principles, but the political and journalistic debate about crime has yet to catch up to progress on the ground. Doing things we already know how to do, we could have half as much crime and half as many people in prison ten years from now as we have today.
wm13 says:
I’ll see what Prof. Kleiman has to say, but I note that the point of the constitutionalization of criminal procedure over the past 60 years has been to ensure that punishments do not follow violations swiftly and predictably. That is why Prof. Kerr, for example, can write such long, fascinating pieces guessing whether particular evidence will be admissable.
October 23, 2009, 2:53 pmGuest says:
The elimination of parole in the federal system and the establishment of the sentencing guidelines, even now that they are not mandatory, has helped make punishment more predictable.
If more states eliminated parole (thereby making it more clear what time a defendant will actually serve), perhaps those states could lower sentences without a net increase in crime.
October 23, 2009, 3:05 pmRyan Waxx says:
Why do I suspect that Kleiman’s theory is a one-way ratchet… that the system he wants to setup involves showing us when less punishment might achieve the goal – but does not have any mechanism to show when “incentivizing” inmates no longer works and the major benefit of jail is no longer rehabilitation, but keeping the inmate from victimizing others?
October 23, 2009, 3:08 pmTamerlane says:
The vast majority of criminal cases that clog prosecutors’ and public defenders’ case files and court dockets could be dealt with very swiftly if resources were targeted at them. An example is Project Ceasefire in Boston in the 1990s. One aspect of this program was that resources were set aside especially to target violent gang members for swift and certain prosecution and incarceration. The program generated a large reduction in Boston homicide rates. I believe that one of Kleiman’s main points is that thoughtfully targeting CJS resources can generate swift and certain punishment in the places where the effects of such punishment will be highly efficacious.
October 23, 2009, 3:16 pmCJColucci says:
Why do I suspect that Kleiman’s theory is a one-way ratchet… that the system he wants to setup involves showing us when less punishment might achieve the goal — but does not have any mechanism to show when “incentivizing” inmates no longer works and the major benefit of jail is no longer rehabilitation, but keeping the inmate from victimizing others?
You tell us. I can think of a number of possible explanations, but I’m too nice a guy to go there.
October 23, 2009, 3:54 pmsk says:
“We have too much crime and vastly too many people behind bars.”
Could this statement ever be wrong?
Sk
October 23, 2009, 4:16 pmBC says:
How does one expunge the posts of a particular Conspirator from one’s reading experience, again?
October 23, 2009, 4:17 pmRyan Waxx says:
Well, I guess we will see. Of course, a cordial invitation for you to stuff it might be warranted, if my guess proves right.
October 23, 2009, 4:20 pmPatHMV says:
My own experience in this field is that such programs, to be effective, require significant resources, and that maintaining the funding for them is politically difficult. Unfortunately, the reductions in penalties (including reductions of mandatory minimums and the like) are made without being connected to the increased expenditures. So you wind up with a short-term infusion of resources (for example, to reduce the case-load of probation officers, allowing them to be more pro-active with each offender), but within a few years, that additional funding dries up, and you’re left with less incarceration but no corresponding continued increase in resource for the effective alternative methods of controlling behavior and preventing recidivism. Then crime yo-yos back up, and the political pendulum swings back to “tough on crime.”
Serious reform needs to focus almost exclusively on our truly screwed-up juvenile justice system, where a relatively small influx of resources can help prevent a whole lot of kids from turning into violent adult criminals.
October 23, 2009, 4:21 pmDave N says:
Far too often I am preparing to comment on criminal law and/or procedure posts when I see that PatPMV has not only already commented, but has also expressed my thoughts more eloquently than I could have myself.
Today was no different. Sigh.
October 23, 2009, 5:07 pmAvatar says:
Leaving aside the issue of narcotics legalization, which would drastically cut the number of criminals, crimes, and cases in the system in one fell swoop…
Think about the number of criminals that have “a rap sheet as long as your arm” – lots of people end up with an extensive criminal record, for which theoretically they should have been behind bars instead of out on the street committing further crimes. Isn’t this at least partially caused by initial lenience, often serving as a cover for a lack of resources? In other words, the petty criminal is likely to have had a number of convictions, but next to no punishment, just probation (which they break without consequence), suspended sentences, etc. This is the flip side of the “predictable” problem – offenders encounter lenience for a number of infractions, conclude that the system isn’t interested in punishing them for their crimes, and are then surprised when a prosecutor finally decides to drop the hammer in the future.
Making punishment for crime “predictable”, in this case, would entail a drastic decrease in initial leniency. So long as a criminal’s first few encounters with the criminal justice system don’t result in appreciable punishment, the criminal is going to learn the wrong lesson (“I can get away with being a criminal”), and at some point his list of offenses is going to reach a point where a prosecutor is going to throw the whole book at him.
October 23, 2009, 5:44 pmSplunge says:
Well, as one who has raised children and trained dogs, Kleiman’s paragraph quoted is right on. There’s even a sound cognitive science basis for what he’s saying, involving what’s called the unpleasantness (and consequent desire of the individual for reducing) cognitive dissonance.
It works as so: if you beat the hell out of your kid when he takes a cookie without permission, then he learns, of course, not to take a cookie when you can see him, or might otherwise catch him.
But he certainly does not learn not to take a cookie when there’s no possibility of being caught, which is your goal, since you can’t be there every moment. It should be the goal of the criminal justice system to teach people not to commit crimes even if there is zero chance they’ll be caught, because without becoming an East German police state where half of us spy on the other half, it is simply impossible to manage crime by teaching people only not to commit it when they might be caught.
In child-rearing, or puppy training, or, ideally, in criminal law, the idea is to give just barely enough negative stimulus that the action is just barely stopped. The minimum necessary punishment. This sets up cognitive dissonance in the mind of the transgressor: I want a cookie. But I’m not taking one. Why not? The punishment isn’t really all that bad. The dissonance is the conflict between the desire and the lack of action to satisfy it. People find it very uncomfortable, and have to reduce it, and the way they normally reduce it is by rationalization, otherwise known as the “sour grapes” analysis. The kid who wants the cookie starts rationalizing his inaction to himself. Well, I don’t want a cookie THAT much. They aren’t that good anyway. Besides, it’s wrong to take a cookie without asking, because Mom might have bought them for some special purpose and I’d mess things up for her.
That last is the beginning of morality, of transferring the guidance of your actions from fear of punishment to an internal moral guide that acts regardless of the threat of punishment. In the criminal context, we want young people thinking: I want that MP3 player. But I’m not taking it. Why not? The punishment, when I got caught last time, wasn’t THAT bad. Well, I don’t want it that much anyway. It’s a crappy model. Besides, taking it without paying for it is wrong, because the shopkeeper depends on that income to feed his kids.
I oversimplify, of course. But the principle is well-demonstrated by decades of social psychology research: too much punishment is as useless as none at all. Or, the dangers of being too punitive are at least as great as those of being not punitive enough.
October 23, 2009, 6:34 pmLarryA says:
[rant]
Don’t stop there. How about eliminating all the “consenting adult” crimes in several fell swoops.
Besides not locking up people who want to directly pay for sex instead of taking someone to dinner or who want to gamble outside the state-approved lotteries and casinos, eliminating all the black market crimes would massively defund the growing criminal street gangs and greatly reduce the associated violent activities.
Then there’s the whole “let’s study the laws we pass and see if actually do any good, and if not rescind them” approach. Restrictive controls on the legal possession of firearms, for instance.
Then we could reduce the legal resources that are necessary to oversee our convoluted regulations. Simplify the income tax and cut the IRS by 90%, for example.
A big part of the problem isn’t that we have too much crime. It’s that we have too many crimes.
[/rant]
October 23, 2009, 6:40 pmMalvolio says:
Is anyone actually locked up for this kind of stuff? I mean, they caught Eliot Spitzer almost literally with his pants down and not only did they not prosecute him for the prostitution, they let him walk on the money laundering too.
But yes, getting rid of victimless crimes and simplifying tax and regulatory systems so we get fewer “accidental criminals” and we can spend the savings on extra investigatory work to catch the real criminals.
Well, that’s the definition of “too much” and “not enough” — but I’m skeptical of the whole thing. The chances of being apprehended for a crime are low and the punishment for first offenders in almost every category is slight. Nonetheless (or “therefore”) we seem to have a lot of crime.
My guess is that people are much more sensitive to the risk of getting caught than to the cost of getting caught. That is, a 50% chance of one month in jail is more deterrence than a 1% chance of 50 months in jail.
October 23, 2009, 7:42 pmSparky says:
Separating the dealers from the users from the commercial growers is the only way. Don’t let the gummit dispense it. Let a user have 4 plants like the old days in Alaska and make street possession very harsh. My 1st visit there was an eye opener, not really a problem, till the Feds came to town for a clampdown. Dealers and Commercial growers should get felonies.
October 23, 2009, 8:09 pmSuperSkeptic says:
Why? For engaging in economic endeavors you find morally reprehensible?
October 23, 2009, 9:50 pmPatHMV says:
While I disagree with Avatar on the issue of narcotics, he is correct that increasing the number of (sometimes very) short-term incarcerations for initial arrested offenses would likely prove beneficial. In the juvenile context, I saw a lot of offenders who were practically conditioned to assume that they would never suffer any consequence more than a stern talking-to for their crimes. The first offense for which a juvenile is arrested, unless it’s truly heinous, often results in probation, which to a criminally-minded teenager is no punishment at all.
But that doesn’t take the resource issue out of it. There’s a significant number of folks who DO respond to a first sentence of probation, and never wind up needing incarceration down the road. But it’s very difficult to distinguish, on the front end, those folks from the ones who may really need to be locked up for a bit to learn a lesson, so increasing up-front penalties may well cost more, especially in the short run.
October 23, 2009, 10:51 pmSuperSkeptic says:
Initial draconian punishments won’t solve the problem if the problem is in large part punishment for things that aren’t truly criminal.
October 23, 2009, 11:02 pmLarryA says:
Uh, you’re a lot less likely to be locked up for almost anything if you’re a state governor.
October 24, 2009, 2:01 amcripes says:
There is something to be said for decriminalizing “consensual” crimes. It would immediately eliminate more than half of all “offenders.”
I can see the headlines” “Crime plummets 50%!”
We can also consider earlier interventions in juvenile justice, addiction treatment (considering addicts do commit other crimes), both needing more resources than they now receive.
But I think even commenters here too readily accept the definition of crime, as the “crimes” committed by poor people.
At the same time, we can think of medical care and housing as anti-crime measures, since people who frequent doctors and have stable homes are less likely to be offenders.
Finally, we should remember that more social harm and greater economic losses result from “white-collar” crime, that is fraud, embezzlement, usury, environmental destruction and personal injury as a result. These crimes also should get more attention with the resources freed from, say, prosecuting potheads.
We must reconsider the idea of treating all undesirable behavior with criminal justice. There are other ways. But then we’d have to talk more about social justice, than criminal justice.
October 24, 2009, 2:50 amFub says:
While I agree with your general point, I think there are also other mental mechanisms (besides probability and fear of punishment) that bear strongly on the formation of criminal habits. These involve social perceptions held by the potential criminal.
IANA psychologist or economist. My formulation here is rough and unlettered at best. So bear with me. I’m using cheating and dishonesty as a proxy for general criminal behavior here.
Prof. Dan Ariely describes some experiments on dishonesty, and his results may be a bit jarring to conventional views of why people cheat. The experiments involved cheating where there were no punishments.
My very rough characterization of one of his results:
Everybody tends to cheat a little bit, but some unspoken understanding among people in a group tends to limit that cheating.
Where people see someone else from their “in group” cheat, they tend to cheat too.
But — where people in the “in group” see someone from an “out group” cheat (in his experiment, students apparently from two different colleges), they don’t tend to cheat as much as when they see members of the “in group” cheat.
In a paper elaborating some of his experiments, Dishonesty in Everyday Life and Its Policy Implications (PDF, more papers are available on Wikipedia), he makes the case that external rewards and punishments may be less important than previously thought:
I’m not sufficiently learned to make the case for particular juvenile prosecutorial policies based on Prof. Ariely’s findings, but I think his work may have strong implications for a more effective approach.
October 24, 2009, 2:36 pmDave N says:
I would add to to PatHMV’s point that these same juveniles often continue their criminal behavior into adulthood and only then discover that the behavior has very, very serious consequences, and that jails and prisons are much nastier than anything they experienced as juvenile offenders.
October 24, 2009, 3:01 pmcripes says:
I’m still disturbed by the general idea that criminal justice generally, and juvenile justice in particular, is amenable to a system of sanctions and rewards that is distinct from, and hostile to, the prevailing moral behaviors modelled by the society at large.
Richard Nixon said once, “It’s not what you do, it’s what you get caught doing.” And this is precisely the lesson that many citizens draw, consciously or not, from the sociopathic reward system that operates openly in our society. The greedy, cheating, exploiting A-type personalities are admired and rewarded, for taking so much and getting away with it.
I have often thought the primary lesson of the criminal justice system is that only those who are convicted and punished are subject social ostracism. This is not as obvious as it appears at face value, since there is a class of people subject to this system, and another class that is largely exempt, despite equal or worse behaviors.
October 25, 2009, 3:10 amstudent debt consolidation loans discount says:
Great, Cheap student debt consolidation loans, [url= http://intensedebate.com/people/studentdebtcons ]Cheap student debt consolidation loans[/url], =-DDD,
September 17, 2010, 2:28 am