Category Archives: Research Papers

Expert Testimony and the Potential for Its Abuse

Below is my research paper for my Criminal Evidence class. Reminder: this paper is in Turnitin so if you plagerize it, you will be caught. There are some really good sources, so use those when doing your own research. Comments always welcome!

 

Expert Testimony and the Potential for Its Abuse

Reagen Dandridge Desilets

Trident Technical College

CRJ236 Criminal Evidence (W04)

November 25, 2014

Abstract

Many people rely on expert testimony to help clear up parts of criminal cases that the average lay person may not understand. Psychologists, forensics scientists, and physicians are all commonly seen as expert witnesses in trials where a combination of extensive education and experience qualifies their testimony. Other expert witnesses may include those in fields such as mechanics, accountants, or other trade specialties where experience alone qualifies them. While the need for experts at a trial can be vital, there have been problems both with what qualifies as “expert” as well as testimony offered by some experts. This paper will look at a few cases to show examples of these problems, what has been done in the past to try and counter these problems, and suggest some more ways to mitigate or eliminate such risks.

Expert Testimony and the Potential for Its Abuse

Lord Mansfield said, “The opinion of scientific men upon proven facts may be given by men of science within their own science,” in reply to an objection during the 1782 Folkes v. Chadd case in the United Kingdom (Rix, 1999). This is traditionally accepted as the first case where expert testimony was offered in a trial when engineer Thomas Smeaton testified regarding harbor decay and the demolition of a sea-bank. For more than two centuries, expert testimony would grow and evolve. Today, the Federal Rules of Evidence Article VII sets the tone for what is acceptable as expert testimony in the United Sates; however, it is a wide set of parameters and there is some room for interpretation (Legal Information Institute, 2014).

Federal Rule 702 states that an expert is anyone with the “knowledge, skill, experience, training, or education” in their field, and they can state their opinion in regards to their field related to the testimony (Legal Information Institute, 2014). It also states that the testimony must meet certain criteria to be considered as expert testimony and should be as follows:

  • the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  • the testimony is based on sufficient facts or data;
  • the testimony is the product of reliable principles and methods; and
  • the expert has reliably applied the principles and methods of the case.

Further amendments were made in subsequent cases, such as Daubert and Kumho, to charge judges with making sure that all expert testimony, scientific or otherwise, is reliable. The reason for these safeguards was to help lessen the risks of abuse of expert testimony in trials to unfairly sway a jury in favor of one side or another, either prosecution or defense.

However, there are times when bad experts and bad testimony gets into a trial, despite the safeguards put in place. Even in recent times, there have been cases where the dubious qualifications of an expert were called into question, but still the expert was allowed to testify. There have also been experts that are well qualified but the testimony itself had problems. It is vital that such situations be carefully vetted to avoid miscarriages of justice.

An example of problematic expert qualifications can be seen in the 1994 case of teenagers Damien Echols and Jason Baldwin, more famously known as the case of the West Memphis Three (Steel). Other problems with this case aside, the prosecution’s expert testimony on occult crimes was offered by Dale Griffis. During the process of trying to establish his credentials, the defense showed questionable education and a lack of experience in the field for which he was testifying in this case, occult crime (UMKC, 1994). The defense pointed out and got Griffis to admit that while getting his Ph.D. with Columbia Pacific University that he did not follow a prescribed set of courses. In fact he said he took no classes at all to earn his Ph.D., and instead relied on regular correspondence that tailored his educational work solely to his own needs, combining it with life experience as he was a full time working police captain while enrolled. Griffis also said that the university was not accredited, but rather “state certified”. In his dissertation, which was reviewed by a board that included his own mentor, the section on cult crimes was co-authored with a lawyer. He had four books published, some of which he used elements of his own dissertation in. There was no other training or education in the area of occult or cult crimes. Griffis had also only worked sporadically as an “occult expert” in a consultant manner, citing actual trial experience for occult testimony three times, so his experience was limited. Despite the defense showing this severe lack of education, training, and experience, the judge still considered him a qualified expert. It would further be revealed that Griffis had not conducted a thorough investigation of this specific case before testifying. He didn’t even know the names of the defendants and had only corresponded with detectives and prosecutors prior to the trial. The process of vetting this particular witness for expert testimony should have filtered him out, but it did not. The defendants were found guilty, and Jason Baldwin was sentenced to life in prison while Damien Echols was sentenced to death. Eventually, after much controversy, all parties involved would agree to Alford plea deals (Robertson, 2011). This would allow them to proclaim their innocence, but also allow the state of Arkansas to claim there was enough evidence to convict them anyway. After nearly twenty years in prison Jason Baldwin, Jessie Misskelly, Jr., and death row inmate Damien Echols were released.

Another problem that can be seen in regards to expert testimony is when the expert is well qualified, but there are problems with the opinion or facts the expert is presenting. This was evidenced in the 2002 case of Texas mother Andrea Yates when well known expert witness Dr. Park Dietz, a psychiatrist, testified for the prosecution (Colb, 2003). Dr. Dietz was not familiar with post partum mental illnesses, which Yates was said to be suffering before and during the homicides of her children she was on trial for. Yet, he declared that she was sane when she killed her children. The Yates’s defense team did everything they could to challenge the notion that she was sane (Steel). However, in his rebuttal, Dr. Dietz testified that shortly before she killed her children, there was an episode aired of Law & Order in which a character drowned her children and claimed insanity to get away with it (Park, 2008). Yates was convicted in large part due to Dr. Dietz’s testimony. It was later discovered that no such episode had ever been written. There was significant outrage when it was discovered that Dr. Dietz did not remember the information about the television show correctly. However, instead of tossing the conviction, the judge told the jurors that they could consider life in prison instead of the death penalty since they were in the sentencing phase. Eventually, her defense won an appeal and she was re-tried and found not guilty by reason of insanity.

There have to be ways implemented to help mitigate the risks of these unacceptable errors. People’s freedom, and indeed their very lives are at stake. The cause of justice must be thorough, complete, and beyond reproach. Human bias must be blinded and science has offered ways to do so.   Confirmation bias is when someone looks to find evidence or interpret evidence in such a way that it confirms their own personal beliefs and preconceived notions about a given topic, idea, or hypothesis (Nickerson, 1998). In the case of the West Memphis Three, detectives and prosecutors sought out Griffis to confirm their bias of Satanic rituals for murder simply because of the odd appearance and strange behavior of the teenagers suspected (Steel). There were claims that the evidence at the scene matched such rituals; however, much of the facts that Griffis testified to were incorrect and evidence was misrepresented to fit the Satanic narrative as opposed to allowing the evidence to tell its own story. In the Andrea Yates case, Dr. Park Dietz “misremembered” a random idea from a television show and nearly had a woman executed for it. It has even been claimed that he was a “hired gun”, working only to testify to the sanity or insanity of whichever side was paying him to say so (Tolson, 2005). This would lend credence to the bias that he had for the prosecution, offering up whatever it took to give them a winning edge in the case, if it were indeed true.

It has been suggested that there is not enough education in the area of forensic psychology when obtaining various degrees in law and criminal justice, and that may evidenced in the cases mentioned above (Goodman-Delahunty, 1997). Perhaps if there were a better survey of the topics concerning so-called “soft” sciences, such as psychology, as part of the curriculum then there would be a better understanding of what could qualify an expert in a field as obscure as occult crimes. Perhaps if a defense attorney were better trained to know what to look out for when a prosecutor’s star psychiatrist is testifying an opinion that is not based on actual facts, then false convictions could be better avoided. In physical, or “hard”, sciences, it’s a bit easier to qualify the evidence (Faigman, Monahan, & Slobogin, 2014). Is it testable and falsifiable? What are the error rates? Was it accepted and published by a peer reviewed process? All of these factors make it far easier to assist judges in the process of deciding if expert testimony and evidence is admissible during a trial. While it is more difficult to apply these questions to soft science, it is not impossible and should still always be applied.

In the case of the West Memphis Three, had anyone used those standards in qualifying Griffis’s credentials, the noted lack of legitimate education, occult investigation experience, and the lack of peer reviewed publications would have been immediate red flags (UMKC, 1994). In the 1980s and early 1990s there had been multiple occult crime scares fueled in large part due to the media (Victor, 1990). However, there was no shortage of experts working to dispel the myths and quell the fears (McRobbie, 2014). In 1992, even the FBI released a report on the topic of Satanic Ritual Abuse that largely explained reasons behind a lot of why these reports were false, misleading, or misrepresented (Lanning, 1992). There would have been several, more reliable sources available to impeach Dale Griffis as a credible witness. In the Andrea Yates case, if Dr. Dietz had to submit formal evidence of the episode in which he claimed Yates mimicked, such as a transcript of the episode, then it would have been discovered immediately to have never existed (Park, 2008). It was also known that Dr. Dietz was unfamiliar with post partum illnesses and their effects and treatments (Colb, 2003). Any hard evidence produced of his lack of experience in those illnesses would have been important to present during the trial. Combine that information with the knowledge that the show did not exist and they may have been able to successfully impeach him as a credible witness.

It is of the utmost importance to be sure that expert testimony is held to the highest standards possible. Since the jury is composed of lay people, understanding certain elements of evidence are vitally important to the process. If the qualification of witnesses is sloppy, or if the testimony offered by witnesses is careless, then the cause of justice has already been lost. Victims will not have answers or resolution and the accused will not have due process. If problems such as confirmation bias and assumptions are allowed to creep into action, then we will continue to see cases such as those given above. However, if objective and mindful procedures are the forward movements into any case, then it will greatly increase the chances of seeing the truth revealed and justice prevail.

References

Colb, S. F. (2003, Summer). The Conviction of Andrea Yates: A Narrative of Denial. Duke Journal of Gender Law & Policy, 10(139), 141-148. Retrieved November 2, 2014, from http://ssrn.com/abstract=2271277

Faigman, D. L., Monahan, J., & Slobogin, C. (2014, Spring). Grop to Individual (G2i) Inference in Scientific Expert Testimony. The University of Chicago Law Review, 81(2), 417-480. Retrieved November 2, 2014, from http://www.jstor.org/stable/23762370

Goodman-Delahunty, J. (1997, Apr.). Psychological Expertise in the Wake of Daubert. Law and Human Behavior, 21(2), 121-140. Retrieved November 4, 2014, from http://www.jstor.org/stable/1394168

Lanning, K. V. (1992). Investigator’s Guide to Allegations of “Ritual” Child Abuse. Federal Bureau of Investigation, Behavioral Science Unit. Quantico, Virginia: FBI Academy. Retrieved November 23, 2014

Legal Information Institute. (2014). Federal Rules of Evidence. Retrieved November 2, 2014, from Cornell University Law School: http://www.law.cornell.edu/rules/fre

McRobbie, L. R. (2014, January 7). The Real Victims of Satanic Ritual Abuse. Retrieved November 23, 2014, from Slate: http://www.slate.com/articles/health_and_science/medical_examiner/2014/01/fran_and_dan_keller_freed_two_of_the_last_victims_of_satanic_ritual_abuse.html

Nickerson, R. S. (1998, Jun). Confirmation Bias: A ubiquitous phenomenon in many guises. Review of General Psychology, 2(2), 175-220. Retrieved November 2, 2014, from http://psy2.ucsd.edu/~mckenzie/nickersonConfirmationBias.pdf

Park, M. M. (2008, Autumn). The Strange Case of Andrea Yates and Dr Park Dietz. Victorian Bar News, 143, 85. Retrieved November 2, 2014, from http://ssrn.com/abstract=1537711

Rix, K. J. (1999). Expert evidence and the courts: 1. The history of expert evidence. Advances in Psychiatric Treatment, 5, 71-77. doi:10.1192/apt.5.1.71

Robertson, C. (2011, August 19). Deal Frees ‘West Memphis Three’ in Arkansas. Retrieved November 23, 2014, from New York Times: http://www.nytimes.com/2011/08/20/us/20arkansas.html?_r=0

Steel, F. (n.d.). The West Memphis Three. Retrieved from Crime Library: http://www.crimelibrary.com/notorious_murders/famous/memphis/index_1.html

Tolson, M. (2005, January 7). Doctor’s reputation takes a hit in Yate’s testimony. Retrieved Novemeber 23, 2014, from Houston Chronicle: http://www.chron.com/news/article/Doctor-s-reputation-takes-a-hit-in-Yate-s-1948489.php

UMKC. (1994, 3 8). West Memphis Three Trials: Dale Griffis. Retrieved November 2, 2014, from University of Missori-Kansas City School of Law: http://law2.umkc.edu/faculty/projects/ftrials/memphis3/WestMemphis3EBGriffis.html

Victor, J. (1990, Jan.). Satanic Cult Rumors as Contemporary Legend. Western Folklore, 49(1), 51-81. Retrieved November 2, 2014, from http://www.jstor.org/stable/1499482

 

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Death Penalty: Might Does Not Make Right

Please remember that this paper is in TurnItIn so do not plagerize. This paper was for my Criminal Law 1 class and I got a 99 on the final paper. I used to be pro-death penalty; however, as I’ve evolved in my philosophy and have come to know morality as being universal, I can no longer support it. Also, I did not include economics in this paper because there are reports that sort of cancel each other out. In other words, people saying the death penalty is less expensive have reports to show that is the case; however, those that claim LWOP (Life WithOut Parole) also have reports that show their stance is the case. I couldn’t find proof enough to satisfy me.

Creative Commons License
Death Penalty: Might Does Not Make Right by Reagen Dandridge Desilets is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

 

Death Penalty: Might Does Not Make Right

Reagen Dandridge Desilets

Trident Technical College

14SP_F2 CRJ115 Criminal Law I (W04)

April 6, 2014

Abstract

The death penalty was brought to America by colonial settlers and continues more than 400 years later to this day. There are several studies that claim to justify the continued use of the death penalty; however, there is other research that explains how they do not hold up under scrutiny. In the interests of justice, we must follow through with due diligence to ensure that we are not allowing cruel and unusual punishments to be applied. This paper will explore some of the history and research into this topic and show why it needs careful reconsideration for abolishment.

Death Penalty: Might Does Not Make Right

The death penalty has been a tool used by authorities in an attempt to control the actions of people for centuries; the first codified death penalty laws go back to the Eighteenth Century B.C. in the Code of King Hammaurabi of Babylon (DPIC). In the United States of America, the death penalty was brought by European settlers. The first recorded execution occurred in Jamestown, Virginia in 1608 when Captain George Kendall was executed for being a Spanish spy (Winglfield). The types of crimes punishable by death were vast ranging from theological crimes such as denying the “true God”, to minor crimes like stealing grapes, killing a chicken or trading with natives, to major crimes such as murder (DPIC). Since we can see the absurdity of killing someone over religious beliefs or where the victim had little to no actual harm, it would be wise to continue to question the use of such an absolute form of punishment.

One of the prominent reasons stated for the continued use of the death penalty is that it is a deterrent (Mocan & Gittings, 2003). There have been some studies attempting to support such claims; however, there are others that question the methodologies used in those studies (Donohue & Wolfers, 2006) (Radelet & Lacock, 2009). If a study claims to prove that the death penalty is an effective deterrent, but uses incomplete or questionable methods, then their claims to empirical evidence are not truly empirical. With lives hanging in the balance, this is a vitally important distinction to make. Is their theory falsifiable and if it is, then they failed to prove their theory has any merit whatsoever (Booth, 2004). Donohue and Wolfers (2006) and Radelet and Lacock (2009) have done well to show the errors in several studies, thereby falsifying them. In fact, there are very few academics that support the death penalty as an acceptable form of punishment (Flanders, 2013).

Some claim that morality is upheld with the death penalty in place. Morality is frequently confused with social mores. Mores change from culture to culture and to say that mores are the same as morality denies that there is a universal morality (Gert, 2011). An example of social mores would be the prohibition of vices such as recreational marijuana use. While society frowns upon the recreational use of marijuana and may call those that do use it in such a fashion “immoral”, it is in fact not immoral as it does not cause harm to another person. There are five harms: “death, pain, disability, loss of freedom, and loss of pleasure” (Gert, 2004). So to call the death penalty moral is to say that the person administering it is not causing harm to another person. Compare that to someone smoking marijuana. The person getting high is not causing harm to anyone while the executioner most certainly is. The death penalty, therefore, is a social more, not a moral act. “The death penalty honors human dignity by treating the defendant as a free moral actor able to control his own destiny for good or for ill; it does not treat him as an animal with no moral sense” (Fein, 2001). This attempt to transfer the moral burden of killing a convicted offender to said offender falls short. Yes, there are indeed consequences to one’s actions; however, it does not relieve those initiating, cooperating, and conducting the executions of their responsibility of causing harm to another person.

There are a few people who claim that the death penalty is a form of self-defense. Self-defense, up to and including lethal force, is certainly an acceptable act when needed to protect oneself and other innocents from imminent harm (Gert, 2004). The idea equating the death penalty with self-defense was put forward by Gian Rinaldo Carli as a response to Cesare Beccaria’s 1764 treatise, On Crimes and Punishments (Maestro, 1980). Beccaria proposed a number of changes to the penal legal systems of the time including abolishing the death penalty. Carli rebutted saying that the victim, having been killed by the offender, would have killed the offender in the course of self-defense if they had the means to do so. The death of the offender is planned in advance and executed while the offender is unable to cause harm to anyone else involved, making the act not of self-defense but rather an immoral act of harm more akin to premeditated murder.

Legal definition is the only thing that defines the death penalty as something other than premeditated murder. The legal definition of murder can change from state to state but is usually something along the lines of the unlawful, intentional killing of a person with malice aforethought (Berman). Malice aforethought is the intent to harm or kill without justification, excuse, or mitigating circumstances. The key word we are looking at would be “unlawful”. The law allows for the intentional killing with malice aforethought in the instance of the death penalty. So the acceptance of a legal definition of murder is the only thing that society leans on to excuse the death penalty as an act different than murder. As such, the death penalty has become a social more and never was or could be a moral act. Legislating an immoral act doesn’t suddenly make it moral.

Another reason stated to support the death penalty is for justice. But is that really true? That depends on how someone defines justice. Dr. Budziszewski at the University of Texas at Austin claims, “Society is justly ordered when each person receives what is due to him” (2007). This is the model currently used in the United States of America and it is called the retributive model of justice (Krup, 1981). In retributive justice models, crime is breaking the law and not necessarily something that causes harm; offender accountability is about the offender accepting the infliction of harm and not the offender taking steps to repair the harm they have caused wherever possible; crime affects the government and the focus is taken from the victim and the people most closely affected by the criminal act; public safety is said to be attained by increasing laws and not by building community peace to maintain order (CRYJ). Retribution is based on revenge (The Ideology of the Death Penalty – Retribution and Revenge, 2005). Claims that retribution is a form of restitution, and not revenge, are not true as the state seeking retribution does nothing to help repair the harm to the victim and make them whole again (FindLaw). If efforts are focused on punishment instead of making the victim as whole again as possible and helping the offender to not reoffend, then there is no real justice. There isn’t any justice in revenge and it sets a bad example for citizens. It sends the message that revenge is okay; that revenge is sanctioned by the state and is to be trusted when done by the state. It attempts to cement the idea that the victim is made more whole by the state committing another premeditated murder in the name of the victim. It sends a confused message that justice and revenge are the same when they are not.

Why are revenge and justice not related? Leon F. Seltzer, Ph.D. makes some good generalizations about the differences between justice and revenge (2014). The first of those are that revenge is emotional and justice is rational. Justice in its most logical and moral definition is not about “getting even”. It’s about righting a wrong. Second, revenge is personal while justice is impersonal and impartial. Justice is supposed to be blind and that cannot be achieved while someone is feeding a rage to get revenge. Next, revenge is vindictiveness while justice is vindication. Basically, it’s the old adage that two wrongs do not make a right. Revenge is also about cycles whereas justice is about closure. When someone wronged commits an act of revenge, then it’s possible the offender, now a victim, may also seek revenge. It’s a vicious cycle that turns over and over and, before anyone knows it, no one remembers how it all began. However, justice aims to get restitution, rehabilitation, resolution, and closure. This will end the cycle of violence that revenge would only perpetrate. Finally, revenge concerns retaliation and justice concerns restoring balance. Revenge tends to be disproportionate because of the emotion involved in such acts. Vigilantism is frequently fed by personal senses of what is right and wrong and can be fueled when multiplied by crowds of people, such as seen in riots and lynch mobs. However, such extremism on the part of revenge isn’t going to help and justice aims to “dispassionately” restore balance through equity. Restoration is about repairing harm with equal restitution, not restitution and then some. So the goal of the death penalty, revenge, is a dangerous path to tread that does not seek justice in the end, only more harm.

All of the above discussions do not even consider when an innocent person is executed by the state. It is hard to know how many innocent people have been executed as there usually isn’t a chance for exoneration after execution (DPIC, 2014). There have been, however, a total of 116 death row inmates exonerated from 1973 to 2004 (Dieter, 2004). This may point to the very likelihood of innocent people having been executed in the past, which is far from being just or moral. Even though there have been some exonerations now does not mean that there are no longer innocent people currently facing the death penalty. Nevertheless, death penalty proponents seem to accept this grave injustice as a part of the system. Judge Mark L. Wolf of the Federal District Court in Boston admitted to the fact that innocent people are executed but still refused to declare the death penalty unconstitutional (Liptak, 2003). Judge Michael Ponsor of the Federal District Court in Springfield once wrote, “(T)hat a legal regime relying on the death penalty will inevitably execute innocent people – not too often, one hopes, but undoubtedly sometimes. Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time. Any honest proponent of capital punishment must face this fact.” (2002) And yet, even when this frightening truth is acknowledged, people refuse to take a stance against it. Instead, the responsibility of killing innocent people is thrust into the hands of the system, which is fallible precisely because it is in the hands of human beings. The system cannot exist outside of human action as it is human action. Once this blame-shifting behavior is stopped, then people would have to be held accountable for the detention and death of innocent people. Support for the death penalty would have to stop so as to not continue to kill innocent people by mistake. This issue is something those that hold to the death penalty being moral and just cannot continue to hide behind.

After centuries of excusing the use of the death penalty through codified laws and social mores it is becoming less able to withstand the tests of effectiveness, justness, and morality. Other means need to be sought to find better ends, ends that will give everyone a real sense of achieving justice. The death penalty is not an effective deterrent; therefore, it serves the purpose of revenge instead of justice. The death penalty offers no restitution for the harms caused by the offender. The death penalty is an immoral act as it is the killing of someone that is not an imminent danger. The death penalty is also the ending of the life of some people that were truly innocent. It is time to evolve beyond the death penalty and adopt better ways of dealing with offenders and getting justice for victims and their families. Only then will people begin to heal and feel at peace.

References

Berman, S. J. (n.d.). Homicide: Murder and Manslaughter. Retrieved April 12, 2014, from Nolo: Law for All: http://www.nolo.com/legal-encyclopedia/homicide-murder-manslaughter-32637.html

Booth, J. (2004, Summer). Scientific Knowledge: Truth, Induction, and Falsification. Richmond Journal of Philosophy(7), 44-49.

Budziszewski, J. (2007, January 6). Captial Punishment: The Case for Justice. Retrieved April 8, 2014, from First Things: http://www.firstthings.com/article/2007/01/capital-punishment-the-case-for-justice

CRYJ. (n.d.). What is Restorative Justice. Retrieved April 8, 2014, from Center for Youth Justice: http://www.restorativeyouthjustice.org/restorativejustice

Dieter, R. C. (2004, September). A Death Penalty Information Center Report. Retrieved April 12, 2014, from DPIC: http://www.deathpenaltyinfo.org/innocence-and-crisis-american-death-penalty

Donohue, J. J., & Wolfers, J. (2006, January). Uses and Abuses of Empirical Evidence in the Death Penalty Debate. Stanford Law Review, 58, 791-846.

DPIC. (2014, March 12). Innocence and the Death Peanlty. Retrieved April 12, 2014, from Death Penalty Information Center: http://www.deathpenaltyinfo.org/innocence-and-death-penalty

DPIC. (n.d.). Part I: History of the Death Penalty. Retrieved April 7, 2014, from Death Penalty Information Center: http://www.deathpenaltyinfo.org/part-i-history-death-penalty#early

Fein, B. (2001, Summer). The Death Penalty, but Sparingly. Human Rights, 28(3), p. 18.

Flanders, C. (2013, Fall). The Case Against the Case Against the Death Penalty. New Criminal Law Revew: An International and Interdisciplinary Journal, 16(4), 595-620.

Gert, B. (2004). Common Morality : Deciding What to Do. New York: Oxford University Press.

Gert, B. (2011). The Definition of Morality. Retrieved April 8, 2014, from Stanford Encylopedia of Philosophy: http://plato.stanford.edu/entries/morality-definition/

Innocence Project. (n.d.). The Innocent and the Death Penalty. Retrieved April 12, 2014, from Innocence Project: http://www.innocenceproject.org/Content/The_Innocent_and_the_Death_Penalty.php

Krup, S. D. (1981, December). A Retributive-Justice Model of Sentencing. Federal Probation, 45(4), 24-29.

Letsas, G. (2009). Rights and Duties on Pitcairn Island. In D. Oliver, Justice, Legality and the Rule of Law: Lessons from the Pitcairn Prosecutions. New York: Oxford University Press.

Liptak, A. (2003, August 12). Signs Grow of Innocent People Being Executed, Judge Says. Retrieved April 12, 2014, from New York Times: http://www.nytimes.com/2003/08/12/national/12DEAT.html

Maestro, M. (1980, Feb. 29). The Death Penalty Viewed as an Act of Self-Defense by Two Italian Jurists in the Eighteenth Century. Proceedings of the American Philosophical Society, 124(1), 52-54.

Martinson. (1996). What Works? Questions and Answers about Prison Reform. In G. S. Bridges, J. G. Weis, & R. D. Crutchfield, Criminal Justice: Readings (pp. 113-123). Thousand Oaks, California: Pine Forge Press.

Mocan, H. N., & Gittings, R. K. (2003, October). Getting off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment. Journal of Law and Economics, 46(2), 453-478.

Ponsor, M. (2002, August 22). Measuring price of death penalty. Retrieved April 12, 2014, from UMass Amherst: http://people.umass.edu/leg485/ponsor.htm

Radelet, M. L., & Lacock, T. L. (2009, Spring). Recent Developments: Do Executions Lower Homicide Rates?: The Views of Leading Criminologists. The Journal of Criminal Law and Criminology, 99(2), 489-508.

Rothbard, M. N. (1963). War, Peace, and the State. Retrieved April 12, 2014, from Ludwig von Mises Institute: http://mises.org/rothbard/warpeace.asp

Seltzer, L. F. (2014, February 6). Don’t Confuse Revenge with Justice: 5 Key Differences. Retrieved April 12, 2014, from Psychology Today: http://www.psychologytoday.com/blog/evolution-the-self/201402/don-t-confuse-revenge-justice-5-key-differences

Winglfield, E. M. (n.d.). First Hand Accounts of Virginia, 1575-1705: A Discourse of Virginia. Retrieved April 7, 2014, from University of Virginia Library: http://etext.lib.virginia.edu/etcbin/jamestown-browse?id=J1023

* Feature image in header from http://rt.com/files/news/20/b8/10/00/death-row-inmates-drug-cocktail.jpg

Effects of CompStat and Zero-Tolerance Policies in Communities

 As usual when I share one of my research papers, please know that it is now in TurnItIn; so if you try to use it as your own paper, you’ll get caught. Please do not plagiarize. Thanks.

Effects of CompStat and Zero-Tolerance Policies in Communities

Reagen Dandridge Desilets

Trident Technical College

14SP_F1 CRJ130 Police Administration (W04)

February 1, 2014

 

 

 

Abstract

Since the New York Police Department launched CompStat, short for Computer Statistics, and changed to a zero tolerance model of policing using the “broken window” theory of crime control, they claim great success in lowering crime rates.  However, there are questions as to the true measure of these programs’ success on affecting crime rates.  From accusations of not giving officers discretion on minor issues to CompStat’s possible problematic implementation and use, there seems to be serious questions arising as to the true implications of these programs.  This paper will explore if they are successful in helping crime rates drop, or if there some other trend on a macro level in the country that can account for these reductions.  Problems and possible solutions will also be explored in regards to CompStat and zero tolerance policies.

 

Effects of CompStat and Zero-Tolerance Policies in Communities

In 1994, Rudy Guiliani took over the office of Mayor of New York City, and appointed William Bratton as New York City Police Department Commissioner (Levitt, 2004).  CompStat, short for Computer Statistics, was introduced by Bratton to help identify crime “hot spots” and to try to apply accountability within the police department.  This was done alongside the implementation of order maintenance policies, in line with the “broken window” theory of crime, and zero-tolerance policing  (Eterno & Silverman, 2012) (Howell, 2009).  In social psychology there is the theory that if there is an unrepaired broken window, then eventually all the other windows will be broken (Kelling & Wilson, 1982).  Other people will come in and take out whatever windows they can that are not protected.  This is done just because it can be done, for fun or malice, since it’s a sign that no one cares anymore.  While the broken windows theory focused on physical appearances and things that are typically offenses not arrested for such as code enforcement and pan-handling, zero-tolerance policing brought in a very different approach (Howell, 2009).  Zero-tolerance policing is the idea that even the most minor of offenses can result in an arrest (Thacher, 2004).  For police, it was thought that cracking down on quality of life issues, such as vandalism, prostitution, loitering and more, would help drive more serious crime rates down. Before long, some researchers began to credit these new methods with the reduction in crime in New York City (Greenberg, 2014).

However, there is no empirical evidence showing that New York City’s methods actually work to reduce crime (Harcourt & Ludwig, 2006).  There are other things that likely contributed to the decline in their crime rates.  One of the possible contributing factors that critics point out  is that crime was already in a downward trend nationwide, as well as in New York City, when Giliani and Bratton took their offices (Bowling, 1999).  In the past, homicides in New York City had risen from 1985 to 1990 by 63%, alongside the introduction of cocaine freebase, more commonly known as crack or crack-cocaine.  Studies have shown that the rise in homicides was more as a result of systematic drug crimes rather than economic drug crimes (Goldstein, Brownstein, Ryan, & Bellucci, 1989).  That is to say that the homicides were more related to violent turf wars between rival dealers and gangs than to users committing violent crimes to fund their addictions.  However, the market for crack-cocaine reached its peak in the early 1990s (Bowling, 1999).  Once the dangers of being a “crack-head” became known, it began to lose its appeal. It’s relatively short high compared to other drugs as well as the severe damage of long term use contributed to it falling out of favor.

At the same time as the beginning of crack-cocaine’s fall, there was increase in the number of police officers being hired (Levitt, 2004).  According to the FBI’s Uniform Crime Reports, the number of police officers being hired increased nationally by about 14 percent in the 1990s.  Levitt also showed from other studies that a rise in the number of police officers can be associated with a drop in crime in the near future.  However, he specifically shows that Bratton’s policies on policing did not start the decline in crime in New York City. Crime in New York City began to fall in 1990, years before Bratton was appointed as commissioner.  The rise in the number of police officers in New York City grew 45 percent from 1991 to 2001, three times greater than the national average.  The result is a drop by 18 percent in the city’s homicides, bringing the homicide rate down to the average for other large cities.  Crime rates had also declined in cities that had not implemented Bratton’s methods, so the correlation between his methods of policing and a drop in crime rates in New York City is likely to be a minor, if any, factor.

Levitt included two other factors that may have contributed to the drop in crime rates (Levitt, 2004).  Those were legalized abortion, where unwanted children were not having to be subjected to abusive and neglectful households resulting in their later activities in crime, and increased incarceration rates.  While increased incarceration rates, particularly for minor offenses targeted by zero tolerance policing, may have an immediate effect on crime rates, the tradeoff down the road may have far reaching negative effects.  Without rehabilitation and reentry programs, recidivism rates remained high (Balko, Beyond Bars, 2010).  Crime rates may also raise when the needs of people in poorer communities cannot be met and social order is disrupted due to the imprisonment of nonviolent people for minor violations of the law (Clear, 2008).  When someone is imprisoned for minor offenses, which were previously not resulting in arrests, it produced a hidden cost that can generate many more problems, from families and communities, to the criminal justice system itself (Howell, 2009).  Heavier burdens, such as now single parent homes and the now perceived loss of legitimacy in criminal justice, created a sense of unfair treatment.  Those people suffering may lash out and reject laws since they no longer view the law and law enforcers as having legitimate authority.  Arrests and convictions created a loss of home, employment, and education which contributed to part of the collateral damage when someone is imprisoned, particularly for nonviolent crimes.  This may create a cycle that is hard to break for future generations that witness this breakdown as children.

CompStat is not without its critics as well.  There was a survey of NYPD retirees done by Long Island’s Molloy College and they revealed that there was a lot of push from higher ranks and those in charge to change the crime stats, such as reducing felonies to misdemeanors to make the numbers look better (Balko, The Other Broken Windows Fallacy, 2010).  One even went so far as to report that victims were talked out of filing reports and some officers refused to take any reports at all. Meant to be a failsafe for tracking and targeting high crime, CompStat is still dependent on humans to run and maintain.  With politically motivated people, there can be a manipulation of data to make things look good in their favor. Concerns for civil liability may arise since the crimes were being treated differently; either a crime was treated too harshly resulting in wrongful prosecution and/or cruel and unusual punishment or a crime was not treated with the right amount of attention it truly required. Such events can happen when misdemeanors are treated as felonies and vice versa. Victims have been made to feel as if they somehow participated in the crime against them (Citizens Against Recidivism, Inc., 2010). The failure to act on the part of the criminal justice system can leave the victim open to more targeting by criminals as they are unlikely to report anymore crimes.

The same month of that study, Bronx police officer Adhyl Polanco blew the whistle on policies of requiring a certain number of citations and arrests each month (Balko, The Other Broken Windows Fallacy, 2010) (Carver, 2013).  He claimed that he could no longer continue “arresting innocent people” and other activities that he felt compromised his goals of helping and assisting people.  He claimed that these quotas motivated officers to arrest people that haven’t committed a crime and that most were released the following day with no charges having ever been filed.  Another Bronx officer, Pedro Serrano, also came forward about the quotas (Carver, 2013).  He added that, as a Hispanic male, he had been targeted for stop and frisks while off duty and that he could relate to how it made targeted people feel.  He said he was told by his superiors to specifically target one age group of black males in a high crime area.  He began to refuse to meet quotas and, in turn, faced retaliation from his commanding officers and other higher-ups.  Once he reported everything to Internal Affairs, he became a target while on duty for harassment from other officers.

There was also manipulation through loopholes in the law to help create an offense that can result in an arrest with a legal charge (Balko, The Other Broken Windows Fallacy, 2010).  For example, a small amount of marijuana in one’s personal possession was an offense that might generate a fine; however, public display of marijuana was an arrest offense.  So doing stop and frisks, asking people to empty their pockets would create that public display, instigating an arrest that would have otherwise never happened if rampant stop and frisks were not being pushed.  There clearly needs to be a reassessment of how to report crimes to ensure that serious crimes are not being underreported and that minor offenses aren’t being heavily targeted.

Questions remain as to the trustworthiness of data from CompStat statistics (Chen, 2010).  The issues surrounding CompStat data may have more and more people second guessing the police and not being able to trust their methods.  Mayor Michael Bloomberg, the Mayor of New York City after Giliani, even admitted to the inevitability of “fudging” small amounts, but is it really so small (Huspeni, 2013) (Chen, 2010)?  There is data to show that an astonishing rise in the number of stop and frisks have not reduced the number of people shot (Weiss, 2012).  Mayor Bloomberg tried to justify the vast increase in stop and frisk policing by comparing it to the number of people murdered; however, a more accurate comparison is drawn by looking at the number of people shot.  Advancements in emergency medicine, “a good EMT or doctor in the E.R.”, as well as near misses to vital organs all play a role in keeping those assaults from becoming homicides.  In the period when Mayor Bloomberg was bragging about reducing crime, the hospitals had sharp increases of patients due to assault (Moses, 2005).  This difference in numbers may have been driven as a political move by the mayor for his bid for reelection, hoping that the reduced number of murders would be the more likeable statistic versus an increase in gunshot victims.  Either way, this one set of statistics alone is enough to draw the entire process in question.

There are a number of ways to help tackle the issues surrounding CompStat and zero-tolerance policing.  One is to undertake non-arrest order maintenance (Howell, 2009).  Decriminalizing minor offenses would go a very long way to curb high numbers of arrests and would allow for the community to continue their lives.  People would not lose jobs because of an arrest, parents would not be put in jail, and the community could stay as a cohesive unit.  Arrest procedures could also be altered so that when an arrest is made for a misdemeanor they are booked but released if there are no other warrants.  They would still be required to be at arraignment, but they would not miss any work days.  This would also likely shorten the booking process and help officers get back on the streets quicker.  Less overtime would be required of the officers having to book people after their shifts end and the costs of putting people in jail would be greatly reduced.

Changes in policing models would also go a long way to help reduce the rift in police-community relations.  For example, San Diego did not take on a zero-tolerance model but rather problem-oriented community policing (Howell, 2009).  They were able to reduce crime by getting the community involved and striking at the roots of the problems instead of targeting citizens with minor offenses.  Boston focused on the more serious criminals instead of the low level offenders.  Both models helped to reduce crime but, at the same time, allowed the community to feel satisfied with the police departments.  These types of policing models work to also reduce, or even eliminate, the sense of unfair treatment by young men of color.  Since the NYPD stop and frisks targeted mostly Latino and black communities, it is something that should be taken into consideration regarding what model of policing helps more than hurts the communities.  The evidence exists to show that aggressive policing for minor offenses is not necessary to reduce overall crime rates, so perhaps it is time to try something different and help bridge the gap that has continued to grow between the criminal justice system and communities.

Furthermore, it may help to implement CompStat in such a way that it is monitored by an outside, independent entity (Eterno & Silverman, 2012).  An unbiased scientific assessment of CompStat data may help in reducing the chances of misuse, under or over reporting, and misrepresentation of statistics and crime rates.  If quotas and certain requirements of numbers of citations, tickets, and arrests are dropped, then the data provided to CompStat would become a more reliable telling of the story of crime prevention, law enforcement, and crime trends.

It is imperative that crime rate trends be separated wholly and completely from politics.  Politicians take credit for things such as the hard work of those under them or for trends that are caused by something other than that politician’s election to office.  That needs to stop.  With the political motivation removed, then the truly scientific application that CompStat should provide will become clear and that data will be far more trustworthy.  Crime and policing isn’t about numbers; it’s about lives.  Each individual’s worth, no matter their history, is far more important than any politician’s political campaign.  Focusing back on the people, and not the politicians, will provide a better end result with fewer chances for corruption and manipulation to occur.

In conclusion, it is obvious that there are problems surrounding the implementation of policies such as broken windows and zero-tolerance policing as well as CompStat data manipulation.  However, there are several factors that could help to clean up crime data, keep communities together while still addressing crime, and bridge the gap that remains between those communities and the criminal justice system.  Decriminalizing order maintenance violations, aiming to take down the bigger criminals instead of focusing primarily on minor crimes, externalizing the collection and analysis of data, and depoliticizing police management and crime statistics all can help to improve the problems seen so far in areas with these types of policies and police management.

References

Balko, R. (2010, December 20). Beyond Bars. Retrieved February 1, 2014, from Reason: http://reason.com/archives/2010/12/20/beyond-bars

Balko, R. (2010, March 8). The Other Broken Windows Fallacy. Retrieved Febrauary 1, 2014, from Reason: http://reason.com/archives/2010/03/08/the-other-broken-window-fallac

Bowling, B. (1999, Autumn). The Rise and Fall of New York Murder. British Jornal of Criminology, 39(4), 531-554.

Carver, M. (2013, March 26). NYPD officers say they had stop-and-frisk quotas. Retrieved January 24, 2014, from CNN: http://www.cnn.com/2013/03/22/justice/new-york-stop-and-frisk-trial

Chen, D. W. (2010, February 8). Survey Raises Questions on Data-Driven Policy. Retrieved February 1, 2014, from The New York Times: http://www.nytimes.com/2010/02/09/nyregion/09mayor.html?_r=0

Clear, T. R. (2008). The Effects of High Imprisonment Rates on Communities. Crime and Justice, 37(1), 97-132.

Eterno, J. A., & Silverman, E. B. (2012). The Crime Numbers Game: Management by Manipulation. CRC Press.

Goldstein, P. J., Brownstein, H. H., Ryan, P. J., & Bellucci, P. A. (1989). Crack and Homicide in New York City: A Conceptually Based Event Analysis. Contemporary Drug Problems, 16(4), 651-687.

Greenberg, D. F. (2014). Studying New York City’s Crime Decline: Methodological Issues. Justice Quarterly, 31(1), 154-188.

Harcourt, B. E., & Ludwig, J. (2006, Winter). Broken Windows: New Evidence from New York City and a Five-City Social Experiment. The University of Chicago Law Review, 73(1), 271-320.

Howell, K. B. (2009). Broken Lives From Broken Windows: The Hidden Costs of Aggressive Order-Maintenance Policing. New York University Review of Law & Social Change, 33, 271-329.

Huspeni, A. (2013, September 10). A Look at NYC Mayor Bloomberg’s Legacy (Interactive Timeline). Retrieved February 14, 2014, from Entrepreneur: http://www.entrepreneur.com/article/228120#

Kelling, G. L., & Wilson, J. Q. (1982, March). Broken Windows: The Police and Neighborhood Safety. Retrieved February 1, 2014, from The Atlantic: http://www.theatlantic.com/magazine/print/1982/03/broken-windows/304465/

Levitt, S. D. (2004, Winter). Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not. Journal of Economic Perspectives, 18(1), 163-190.

Moses, P. (2005, October 25). These Stats Are A Crime. Retrieved February 1, 2014, from The Villiage Voice: http://www.villagevoice.com/2005-10-25/news/these-stats-are-a-crime/

Thacher, D. (2004, Winter). Order Maintence Reconsidered: Moving Beyond Strong Causal Reasoning. The Journal of Criminal Law and Criminology, 94(2), 381-414.

Weiss, M. (2012, June 5). Stop-and-Frisks Have Done Little to Reduce Shootings, NYPD Data Shows. Retrieved January 25, 2014, from DNAinfo New York: http://www.dnainfo.com/new-york/20120605/new-york-city/stop-and-frisks-have-done-little-reduce-shootings-nypd-data-shows

 

On the Issue of Forensics Mistakes and Fraud

The following research paper was for my Crime Scene Investigation and Reconstruction class. I chose a topic that I felt needed attention and solutions. Reminder: my college uses Turnitin so if you plagiarize, you will be caught. I publish my work here on this blog because I don’t want my work and ideas to disappear into academia oblivion. It’s not just a grade for a class to me – it’s my entire philosophy.

 Creative Commons License
On the Issue of Forensics Mistakes and Fraud by Reagen Dandridge Desilets is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

 

On the Issue of Forensics Mistakes and Fraud

Reagen Dandridge Desilets

Trident Technical College

13FA_F2 CRJ235 Practical Crime Scene Inv. (W03)

November 17, 2013

Abstract

In the pursuit of justice, all parties involved from the prosecution to the defense claim to aim to seek justice. In this pursuit, both parties attempt to provide solid evidence to either prove or disprove a person’s involvement in crime. In the past several years new, more scientific ways of doing so have burgeoned and taken root doing both to prove someone’s guilt as well as prove the innocence of others. However, methods must be employed to ensure the viability of various forms of forensic analyses to keep the system neutral and for the benefit of truth and justice. Looking at other research, past efforts, and suggestions of professionals in the criminal justice and forensic fields we can ascertain whether or not enough is being done to protect against mistakes and outright fraud and if not, discuss what could be done to increase protections.

On the Issue of Forensics Mistakes and Fraud

The Innocence Project reports that there have been 311 prisoners exonerated using DNA evidence that may or may not have been available during the initial trials (Innocence Project). In theory, if the evidence is followed, then the conviction is based on that and that alone, which is supposed to mean that a jury is convinced beyond a shadow of doubt that the person is guilty. If an innocent person is convicted, ideally, it was because there was not enough evidence to make the jury have any doubt as to his involvement or execution of the crime.

Despite that, there can be a problem with evidence and it is possible for the wrong person to face a sentence for a crime they did not commit. It is estimated that 2.3% to 5% of those in prison are actually innocent (Innocence Project). It sounds like a small number considering recent reports of 7.2 million adults under correctional supervision (Glaze, 2010); however, it could mean anywhere from roughly 165,600 to 360,000 innocent people are currently facing some sort of correctional action. That is a lot of potentially innocent people and it has been said many times over, since Biblical times, that it is better for any number of guilty people to go free than for even one innocent person to suffer (Volokh, 1997). The sentiment is that it is wrong for an innocent person to suffer that which is meant for the guilty. So what can go wrong that we may possibly have over a third of a million innocent people in the corrections system?

June 10, 2013, it was reported that the Laboratory Services Division of the Colorado Department of Public Health and Environment, who does the forensics testing for prosecutors, has been investigated for a number of problems (Greene, 2013). Problems listed included the following:

  • “Employees perceive they are ‘not adequately trained to provide fact or expert testimony in court’.”
  • “Employees justifiably perceive that blood-alcohol training protocols for toxicology lab analysts are inadequate.”
  • “Refrigerators used to store blood and urine samples are not locked, making them accessible by unauthorized personnel.”
  • A supervisor “had toxicology lab employees help him/her with his/her master’s thesis during working hours.”
  • That same supervisor “made statements that suggest s/he is biased against defendants in criminal cases” and “imposes unreasonable burdens on toxicology analysts by making excessive accommodations for prosecutors and law enforcement agencies.”
  • And that “employees justifiably perceive that the toxicology lab is not sufficiently staffed to handle the work load.”

Problems began at least as soon as August 2011 so that means that potentially hundreds, maybe thousands, of criminal cases could be affected (Greene, 2013).

It was also reported on September 28, 2012 that Annie Dookhan, a chemist with Hinton State Laboratory Institute in Boston was arrested (Crimesider Staff, 2012).  She stated her motive for her outright fraud was that she wanted to seem like a good worker. Co-workers began questioning supervisors about her several years ago but they did nothing. Along with the shutdown of the lab due to Dookhan’s actions, three officials resigned, including the state’s public health commissioner.

The above reports highlight the potentials for problems in forensic science; however, misuse of evidence is not limited to only laboratories. On November 8, 2013 a former Texas prosecutor and judge, Ken Anderson, pleaded guilty to intentionally failing to disclose evidence and that led to the wrongful conviction of Michael Morton in the murder of his wife (Godsey, 2013). His only punishment was the loss of his law license, performing 500 hours of community service, and a 10 day stint in jail. That pales in comparison to the 25 years Morton spent in prison. This sort of violation of withholding evidence is known as Brady violations and they are cited as being one of the main causes of wrongful convictions.

In the Brady v. Maryland case, the United States Supreme court ruled that the prosecution must disclose all evidence in a case, even evidence favorable to the defendant (Dewar, 2006). To withhold such exculpatory evidence violates the Constitutional guarantee of a fair trial with due process. The Fifth Amendment of the Bill of Rights in the United States Constitution includes that a person “nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…” (Legal Information Institute [LII]).

Brady violations are against this amendment and represent serious misconduct on the part of the prosecution. Yet few are ever called out on it and even less are punished for it. A recent empirical study of the capital convictions from 1973 to 1995 found that about 16% of reversals at the post-conviction stage were as a result of Brady violations (Dewar, 2006). It has been said that there are a number of motives behind these violations, some of which include inexperience, the desire to win, political gain, ensuring guilt for the sake of closing the case, and the natural conflict of their job of being an advocate while at the same time finding evidence that is detrimental to their own cases. Even cognitive psychology has been noted wherein a prosecutor may fully believe in the guilt of the defendant, which may interfere with understanding the exculpatory value of evidence.

There is also a question of how sound some forensic science methods are, such as with those used to convict someone but they were later exonerated with DNA. Some of these methods “included bite marks, shoe prints, soil, fiber, and fingerprint comparisons, and several included DNA testing” (Garrett & Neufeld, 2009). In their study, Garrett and Neufeld found that 82 of the 137 cases where there was exoneration (60%), the prosecutions’ forensics analysts gave testimony with conclusions using misstated empirical data or conclusions that were unsupported by empirical data. The rate of problems was not insignificant at all. This study included 72 forensic analysts, employed by 52 laboratories, practices, or hospitals from 25 states. Procedures tend to feed this sort of misconduct as defense attorneys rarely can hire their own experts and do not know when to object to misleading expert testimony.  When the expert evidence is challenged, judges rarely relent. Below is a table from their study, showing types of evidence and invalid testimony on behalf of a scientific expert.

Table 1: Invalid Forensic Science Testimony by Type of Analysis

Type of Forensic Analysis Cases with trial transcripts Cases involving invalid science testimony Percentage of cases with trial transcripts involving invalid science testimony
Serology

100

57

57

Hair comparison

65

25

38

Soil comparison

6

0

0

Fingerprint comparison

13

1

8

Bite mark comparison

6

4

67

Shoe print comparison

3

1

33

DNA testing

11

3

27

Voice comparison

1

1

100

In today’s time, the scientific method acknowledges and allows for consideration of things such as observer effects (Risinger, Saks, Thompson, & Rosenthal, 2002). Observer effects can be described when “the results of observation depend upon the state of the observer as well as the thing observed.”  It is also not uncommon for there to be extensive communication between detectives and forensic personnel, which can taint the view point of the forensics examiners on the case, such as with the case mentioned above from Colorado (Greene, 2013).

Falsifiability is vitally important to the scientific process and helps to test the refutability of a theory (Princeton University). If the examiner works to find only the facts, and is able to prove the theory false or is unable to prove it false, rather than working to prove it true, then the findings remain unbiased and offer far more validity and reliability as evidence. Blind and double blind testing are ways that science has tried to thwart observer effects (Risinger, Saks, Thompson, & Rosenthal, 2002). It was also suggested that, in addition to blind studies of evidence in a case, that the model include a method dubbed “an evidence lineup”. This presents the examiner with the evidence along with “foils”, evidence not a part of the case. The examiner would be blind to which evidence is related evidence and which the foils are. This solves the problem of approaching forensics testing and examination from a single-suspect viewpoint in which there is an assumption that the correct person is in custody and it is just a matter of technicality to prove it in court.

In regards to DNA analysis, there is a concern that DNA kits suffer from errors and that this may result false positives (Mellon, 2001).  The kits, made by private companies, seek to not reveal too much about their methods to avoid copycat productions; however, this makes it much like a VCR. The examiner uses it based on instructions and not based on any knowledge and understanding of how it works scientifically. They are “happy to push a button and get results”. This removes the scientific method from the process and out of the hands of the examiner. It is suggested that if the defendant is not granted via discovery the science behind the kit, then any DNA evidence should be ruled as inadmissible. Most often times, the defense has to subpoena the information instead of it being part of the discovery process. If the defense cannot seek to validate the DNA evidence, how can it ever be considered as inculpatory?

Database dependency is another issue with a lot of today’s forensics, such as large DNA databases (Murphy, 2007). This brings about concerns of privacy and protection of data as well as potential misuse of data. When there is a lack of standards being enforced in crime laboratories, other issues arise such as contamination and destruction of samples. An example of such mishandling is seen with a crime lab in Houston, where 280 boxes of evidence covering approximately 8,000 criminal cases were misplaced (Blumenthal, 2005).

Another issue in forensic science is the lack of treatment as an “ordinary” science (Murphy, 2007). It is a field that does not typically arise out of other collaborative or competitive environments. Instead, it is dominated by the government, which is also the entity that almost exclusively administers it.  It has been stated that a peer review in forensics science is the equivalent to self-congratulations and validation comes from those that will benefit the most from a method’s approval. Because of this, crime laboratories rarely engage in self-criticism and they work to keep their clients, such as police departments, happy. Many of those working in the field have an undergraduate degree and are not qualified to conduct proper research, even when encouraged to do so. As a result, the science of forensics can be in a state of “arrested development”.

There are many more concerns with forensic evidence, its misuse, and the impacts that it has on society as a whole, such as the innocent people suffering, the victim and their families not having a sense of peace and justice, and the legal costs involved in such cases. The goal of demanding standards in incriminating expert evidence is not for making it difficult; but rather to support criminal justice values, such as a presumption of innocence and the burden on the state to prove one guilty beyond reasonable doubt (Edmond & Roach, 2011). Until these issues are taken into account and questioned on a regular basis by all involved, including the prosecution, the courts, the defense and the public, these sorts of problems will continue to arise. Public accountability could include opening up books for public scrutiny, such as is done with other public agencies. Independent laboratories could help by creating competition instead of the government retaining a monopoly on forensic science. This would separate the missions of a laboratory, truth seeking, and law enforcement, prosecution, and take the pressure off examiners to prove the prosecutions’ cases (Turvey, 2013). They can then remain unbiased and get to the truth.

References

Blumenthal, R. (2005, January 5). In Texas, Oversight for Crime Labs Is Urged. Retrieved November 11, 2013, from New York Times: http://www.nytimes.com/2005/01/05/politics/05labs.html?_r=0

Crimesider Staff. (2012, September 28). Annie Dookhan, chemist at Mass. crime lab, arrested for allegedly mishandling over 60,000 samples. Retrieved from CBS News: http://www.cbsnews.com/8301-504083_162-57522579-504083/annie-dookhan-chemist-at-mass-crime-lab-arrested-for-allegedly-mishandling-over-60000-samples/

Dewar, E. N. (2006, Apr.). A Fair Trial Remedy for Brady Violations. The Yale Law Journal, 115(6), 1450-1469. Retrieved November 9, 2013, from http://www.jstor.org/stable/20455658

Edmond, G., & Roach, K. (2011, Summer). A Contextual Approach to the Admissibility of the State’s Forensic Science and Medical Evidence. University of Toronto Law Journal, 61(3), 343-409. Retrieved October 29, 2013, from http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/pre/f/docs/pubs/unsw_edmond_contextual_approach.pdf

Garrett, B. L., & Neufeld, P. J. (2009, Mar.). Invalid Foresnsic Science Testimony and Wrongful Convictions. Virginia Law Review, 95(1), 1-97. Retrieved November 9, 2013, from http://www.jstor.org/stable/25475240

Glaze, L. E. (2010). Correction Populations in the United States, 2010. Washington, DC: Bureau of Justice Statistics. Retrieved November 9, 2013, from http://www.bjs.gov/content/pub/pdf/cpus10.pdf

Godsey, M. (2013, November 8). For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man. Retrieved November 9, 2013, from Huffington Post: http://www.huffingtonpost.com/mark-godsey/for-the-first-time-ever-a_b_4221000.html

Greene, S. (2013, June 10). Colorado Forensic Lab Under Fire For Alleged Mismanagement, Lab Bias, and ‘Cover Up’. Retrieved November 10, 2013, from Huffington Post: http://www.huffingtonpost.com/2013/06/10/colorado-forensic-lab-und_n_3416143.html

Innocence Project. (n.d.). Retrieved November 9, 2013, from Innocence Project: http://www.innocenceproject.org

Legal Information Institute [LII]. (n.d.). Fifth Amendment. Retrieved November 9, 2013, from Cornell University Law School: http://www.law.cornell.edu/wex/fifth_amendment

Mellon, J. N. (2001, Dec.). Manufacturing Convictions: Why Defendants Are Entitled to the Data Underlying Forensic DNA Kits. Duke Law Journal, 51(3, Thirty-First Annual Administrative Law Issue), 1097-1137. Retrieved October 29, 2013, from http://www.jstor.org/stable/1373185

Murphy, E. (2007, Jun.). The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence. California Law Review, 95(3), 721-797. Retrieved October 29, 2013, from http://www.jstor.org/stable/20439109

Princeton University. (n.d.). Falsifiability. Retrieved November 9, 2013, from Princeton University: http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Falsifiability.html

Risinger, D. M., Saks, M. J., Thompson, W. C., & Rosenthal, R. (2002, Jan.). The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion. California Law Review, 90(1), 1-56. Retrieved November 9, 2013, from http://www.jstor.org/stable/3481305

Turvey, B. (2013). Turvey – Forensic Fraud Promotional. OnQ Film.

Volokh, A. (1997). n Guilty Men. Retrieved November 9, 2013, from UCLA Law (University of California): http://www2.law.ucla.edu/volokh/guilty.htm

The Application of Peacemaking Criminology

The following research paper was for my Criminology class. We had to choose from the various types of criminology and assess it and report on it. I have a big interest in peacemaking criminology, which includes transformative and restorative justice, because the retributive model of criminal justice is a failure. It rips apart families and communities especially with vice laws.

 Creative Commons License
The Application of Peacemaking Criminology by Reagen Dandridge Desilets is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

The Application of Peacemaking Criminology

Reagen Dandridge Desilets

Trident Technical College

13FA CRJ125 Criminology (W01)

November 11, 2013

Abstract

Within social conflict theories lies the realm of peacemaking criminology. Peacemaking criminology seeks to end crime through transformative and restorative justice methods to help people become more “whole” again. It focuses on healing families currently touched by crime in an effort to break a cycle that repeats itself the way things currently operate. By looking at research already available as well as current programs running with the same or similar goals, one can determine its effective and worthiness of investment of time and funds.

 The Application of Peacemaking Criminology

There is a set of theories in criminology that promote ideas such as restorative justice instead of retributive justice. In the face of the failures of retributive justice, such as the high incarceration and recidivism rates (Hartney, 2006) (Langan & Levin, 2002), it is time to try something else and peacemaking theories provide a radically different path to justice. There are efforts in place for the application of transformative and restorative justice already underway. Some of these include Philly Stands Up, a collective working with sex crime offenders and victims for healing and transformation (Philly Stands Up, 2010); Critical Resistance, a movement challenging the belief that “caging and controlling people makes us safe” (Critical Resistance, 2013); and 360 Degrees, a team dedicated to changing public perception of the nation’s prisoners in the hopes of being able to help analyze what works and what doesn’t (360 Degrees, 2011). Other countries have delved into this as well including Cuba (Political Research Associates, 2005) with a focus on intense offender rehabilitation and community integration and New Zealand (Schmid, 2001) with a focus on restoration for both victim and offender. Focuses in restorative and transformative justice could include things such as family conferencing, family violence court, mental health court, drug assessment and aid panels, and victim offender reconciliation programs (Barnes).

Having roots in ancient Arab, Greek, and Roman civilizations (Braithwaite, 1999) restorative justice can encompass many things ranging from victim services to help them heal, up through offender integrative programs such as community service instead of prison for an offense (Kurki, 2000). The phrase is commonly used interchangeably with community justice since the focus of restitution is primarily on community service and offender integration. The monopoly that various levels of government have on the prison industrial complex is let go of with restorative justice in favor of locals handling services and restitution to victims, keeping the needs of those most closely affected by the offense on the top of the list of what is important. Healing for all involved is the focus of restorative justice instead of revenge, such as with the current retributive justice model. Restorative justice focuses on the shared values of a community for healing justice while retributive justice concerns itself with power and status in the imposition of punishments of offenders (Wenzel, Okimoto, & Feather, 2008).

It was stated early on in this nation’s history that local forms of government should be concerned with local matters and that centralizing power can be a dangerous path to take (Jefferson, 2011). This includes everything from federal, to state, to county, to city levels, down to the individual person and their farm. Perhaps leaving the people in the smaller community in charge more so than federal, state, and county level courts and detention centers would help improve the increasingly difficult situation in regards to incarceration in the United States. Each community has very specific needs and desires in regards to every aspect of their lives. What would work in Los Angeles may not work for Knoxville and what works in Honolulu may not work in Anchorage. That can be further subdivided into individual neighborhoods as well. What works for an inner city type of neighborhood may not be able to work with solutions utilized in a middle class or upper class section of the same city. The idea is that the people truly control the criminal justice system and can customize it to better meet their needs as much as the victim’s needs and the offender’s needs.

Most people would not have a difficult time understanding and wanting to meet the needs of a victim. Recently, the victim has begun to become a better focus in criminal justice whereas before, they were more or less just treated as a source of evidence (Henderson, 1985). Many jurisdictions have set up their own victim advocacy programs to help assist victims, such as the South Carolina State Office of Victim Assistance, also known as SOVA (SOVA).  They offer programs that help victims do anything from counseling, to tending to monetary needs as a result of crime, to updates on offender activities (such as when being released from prison) and more. They also have outreach programs to the general public to bring about awareness about victim advocacy and what it brings to those in need of help. There are numerous other jurisdictions that have begun victim-centered restitution ideas with a good deal of success. The more those in the criminal justice system, such as police, prosecutors and judges, learn of the losses victims suffer, the more they can help them find the resources to heal and experience a real sense of justice in their lives (Ruback & Shaffer, 2005). It is a fairly new concept in the story of the American justice system, but one that most people support without a second thought. Previously, while the offender was afforded every right under the Constitution, victims rarely had help and their treatment was more “cold” rather than “professional” as viewed by a victim (Henderson, 1985). Some victims, especially rape victims, may have even suffered injustice during the retributive justice process (Feild, 1979). The appearance and presentation of both offender and victim may influence the jurors and serve to sway them, whether they realize it or not, to vote in favor of whomever they personally like as opposed to depending on the evidence alone. There may still be issues in regards to victims getting the help they need (Henderson, 1985), but it is evolving and growing, especially with the emergence of restorative justice.

More difficult, however, may be spreading a message that offenders have needs not being met as well. As previously mentioned, offenders are offered a lot to help in their defense and always at the taxpayer’s expense (Henderson, 1985), including the victim’s. They get an attorney, even when they cannot afford one, and then are housed during trial and after sentencing to a jail or prison. They are given food and other basic necessities including health care, where some people outside of prison, including victims, may not have access to such resources. It is not hard to understand how a victim may feel re-traumatized by the entire process and how the public at large may view offenders as already getting what they need. What more could be done for an offender and how would it affect the victim as well as the community at large? Methods to keep ties to the community would go a long way to keeping an offender from falling into further, and likely increasingly violent, crime as a result of time in prison. For example, a father being able to stay in constant contact with his family outside of prison would go a long way to keeping those bonds tight and give him a reason to work towards community integration and stay away from crime (Political Research Associates, 2005). Working outside of a prison would give the offender a learned job skill and would help to increase his chances of successfully keeping that job when his time is served. Restorative measures would have, under a consensual arrangement, the offender and victim work together for victim restitution which may increase the offender’s awareness and empathy (Schmid, 2001). Offenders are treated as equal human beings with needs just as much as the victims and society at large and their needs.

An example of how a community can better affect offender outcome is that it is not hard to see that there is a large disparity in minority representation in prison versus outside populations (Hartney, 2006). Being able to focus on the needs of each community, which may have larger minority populations may help bring a reduction in harm in the community (Jenkins, 2006). It has been shown that different neighborhoods can have different struggles that can greatly affect crime levels (Peterson & Krivo, 2009). There are a number of high minority populated communities that suffer from a number of social and economic disadvantages and trying to overcome those conditions tends to lead to criminal activity. So, for example, someone trying to obtain money to better their position in life and provide for their families can easily turn to the black market activities of drug and gun trade to do that quickly and efficiently. Robbery and burglary are other methods of quickly attaining money. Motive for that can range from a drug addiction needing to be fed to rent needing to be paid. With restorative justice, there is a far better chance of the offender being able to, not only make restitution to the victim, but to better their situation in life and integrate back into the community. Offers for counseling, drug rehabilitation, learning job skills and more can be offered to an offender to better themselves and contribute to the community.

Empowerment and transformation are powerful motivators for success, particularly for those that feel disenfranchised or oppressed. In Afghanistan, there was launched a program to stimulate “transformative learning” in the rural communities. It focused on building up the nation’s infrastructure (Affolter, Richter, Daudzai, Massood, & Rahimi, 2009). It proved that the methods used, which included transformative learning as well as “mind-change”, a process of getting people to rethink customary thought processes regarding an issue of importance and thinking in new ways, helped to give the people a sense of pride and project ownership. This pushed them to become more proactive in dealing with local development problems. This is a great example of how restorative justice models can work and motivate people to improve, not just their own lives, but the lives of those around them in their community.

To further look at peacemaking criminology as a whole, John Fuller listed a “Peacemaking Pyramid Paradigm” that shows the overall philosophy in peacemaking criminology (Barnes). They include the following:

  1. Nonviolence – For example, peacemaking criminology is opposed to the death penalty. It cites that the premeditated violence (murder) of the offender is just as wrong as the offender’s violence.
  2. Social justice – Social justice would be able to tackle issues such as racism, sexism, and inequalities in the community.
  3. Inclusion – There is more at stake in justice than just the offender versus the state. The victim and their families as well as the offender and their families have a stake in what happens. There may be others in the communities that are willing to step in and offer alternatives. The state handling the justice paradigm robs these people of the chance to find a unique and creative solution to the problems at hand. Inclusion offers longer lasting solutions than just sending someone off to prison.
  4. Correct means – “The ends don’t justify the means.” This is very true and something that is of particular interest to peacemaking criminology. Settling cases may leave someone feeling victimized in one way or another. A victim may feel a lack of justice when an offender pleas out and an offender that is innocent and fearing a lengthy prison sentence may also plea out to get less time to serve. These are not acceptable means (force) to get to an end (clearance rates).
  5. Ascertainable criteria – This issue surrounds language barriers in the justice system. This includes immigrants that are not familiar with the English language as well as legal jargon heard in the court room. There must be an understanding of the procedures and the terms being used. One cannot effectively participate in anything if they do not understand what is going on. This method seeks to fully inform all parties involved of what is happening.
  6. Categorical imperative – This is based on Kant’s concept of the categorical imperative. People know what will happen and can guess the outcome. This would be “an underlying philosophy of nonviolence and social justice throughout the criminal justice system.” Everyone involved including offenders, victims, and the public would be treated with the “respect and dignity we all deserve.” Peacemaking criminology “aims at providing true equality under the law that is tempered by appositive view of humankind.” It does not treat society higher than victim and victim higher than offender. We are all the same and are in this together.

Perhaps the answer to the problems that ail the American criminal justice system are rooted in the communities and the people that are most affected by crime. Not the judges, not the police departments, not the prison administrators. Perhaps looking inward is the best way to move forward. This can work to not only improve the lives of the victims and offenders of crime but also heal the communities in which these people live. Bridges can be built by one person reaching out to another. The more the people in these communities learn to transform and experience a “mind-change”, the more proactive and involved they can become. This will help to keep several categories of people out of America’s jails and prisons and keep them at home with their families who need them. Their bonds with family and community can be maintained and their life skills can be changed. In the meantime, the victim-centered process of restitution can also take place where people see each other’s faces on a day-to-day basis, keeping accountability at the forefront of restitution and resolution enforcement.

Considering the ancient roots of restorative justice (Braithwaite, 1999), and considering the failures of the retributive model, such as lack of victim care and offender rehabilitation, then it is not a stretch to see that peacemaking theories in criminology are a viable and even necessary step to take moving into the future. Our prison numbers need to shrink and our communities need to heal. We can do this without suffering the oppressive costs of prison operation and upkeep. It is possible that there will always be a place for prisons for those that refuse to collaborate with their communities, but until we get nonviolent offenders and rehabilitative offenders out of prisons, and until victims have a real sense of restitution, families across America will continue to be break and never heal. The cycle repeats.

References

360 Degrees. (2011). Retrieved October 27, 2013, from 360 Degrees: http://www.360degrees.org/

Affolter, F. W., Richter, K., Daudzai, A. K., Massood, T., & Rahimi, N. S. (2009, May). Transformative Learning and Mind-Change in Rural Afghanistan. Development in Practice, 19(3), 311-328. Retrieved October 30, 2013, from http://www.jstor.org/stable/27752060

Barnes, R. C. (n.d.). Peacemaking Criminology: Challenges and Possibilities. Retrieved November 11, 2013, from National Social Science Association: http://www.nssa.us/journals/2007-29-1/2007-29-1-05.htm

Braithwaite, J. (1999). Restorative Justice: Assessing Optimistic and Pessimistic Accounts. Crime and Justice, 25, 1-127. Retrieved October 30, 2013, from http://www.jstor.org/stable/1147608

Critical Resistance. (2013). Retrieved October 27, 2013, from Critical Resistance: http://criticalresistance.org/

Feild, H. S. (1979). Rape Trials and Jurors’ Decisions: A Psycholegal Analysis of the Effects of Victim, Defendant, and Case Characteristics. Law and Human Behavior, 3(4), 261-284. Retrieved October 30, 2013, from http://www.jstor.org/stable/1393690

Hartney, C. (2006, Nov.). US Rates of Incarceration: A Global Perspective. Retrieved from National Council on Crime & Delinquency: http://www.nccdglobal.org/sites/default/files/publication_pdf/factsheet-us-incarceration.pdf

Henderson, L. N. (1985, Apr.). The Wrongs of Victim’s Rights. Stanford Law Review, 37(4), 934-1021. Retrieved October 30, 2013, from http://www.jstor.org/stable/1228587

Jefferson, T. (2011, March 20). Thomas Jefferson, On Good and Safe Government, to Joseph Cabell, Feb. 2 1816. Retrieved October 30, 2013, from The Federalist Papers: http://www.thefederalistpapers.org/founders/jefferson/thomas-jefferson-on-good-and-safe-government-to-joseph-cabell-feb-2-1816

Jenkins, M. (2006, Nov.). Gullah Island Dispute Resolution: An Example of Afrocentric Restorative Justice. Journal of Black Studies, 37(2), 299-319. Retrieved October 30, 2013, from http://www.jstor.org/stable/40034415

Kurki, L. (2000). Restorative and Community Justice in the United States. Crime and Justice, 27, 235-303. Retrieved October 27, 2013, from http://www.jstor.org/stable/1147665

Langan, P. A., & Levin, D. J. (2002, June). Recidivism of Prisoners Released in 1994. Retrieved from Bureau of Justice Statistics: http://www.bjs.gov/content/pub/pdf/rpr94.pdf

Peterson, R. D., & Krivo, L. J. (2009, May). Segregated Spatial Locations, Race-Ethnic Composition, and Neighborhood Violent Crime. Annals of the American Academy of Political and Social Science, 623. Race, Crime, and Justice: Contexts and Complexities, 93-107. Retrieved October 30, 2013, from http://www.jstor.org/stable/40375889

Philly Stands Up. (2010). Retrieved October 27, 2013, from Philly Stands Up: http://www.phillystandsup.com/

Political Research Associates. (2005, May). The United States versus the World. Retrieved from PublicEye.org: http://www.publiceye.org/defendingjustice/pdfs/factsheets/9-Fact%20Sheet%20-%20US%20vs%20World.pdf

Ruback, R. B., & Shaffer, J. N. (2005, Dec.). The Role of Victim-Related Factors in Victim Restitution: A Multi-Method Analysis of Restitution in Pennsylvania. Law and Human Behavior, 29(6), 657-681. Retrieved October 30, 2013, from http://www.jstor.org/stable/4499449

Schmid, D. J. (2001, August). Restorative Justice in New Zealand: A Model For U.S. Criminal Justice. Retrieved from Fulbright New Zealand: http://www.fulbright.org.nz/publications/2001-schmid/

SOVA. (n.d.). Retrieved October 30, 2013, from State Office of Victim Assistance: http://www.sova.sc.gov/

Wenzel, M., Okimoto, T. G., & Feather, N. T. (2008, Oct.). Retributive and Restorative Justice. Law and Human Behavior, 32(5), 375-389. Retrieved October 30, 2013, from http://www.jstor.org/stable/25144639

The Case for Narcotics Legalization and Decriminalization

 The following was my research paper for my criminal justice research class. We had a list of topics to choose from and it was a toss up for me between this and gun control. I stuck with this topic as it is one I’m pretty passionate about. For the record, I’m not passionate about ending prohibition on drugs because I am or want to be a pot head – not even close. I have zero interest in doing drugs; however, the Drug War has made the issue of drugs far more dangerous, as I point out below.

Creative Commons License
The Case for Narcotics Legalization and Decriminalization by Reagen Dandridge Desilets is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.

The Case for Narcotics Legalization and Decriminalization

Reagen Dandridge Desilets

Trident Technical College

13FA CRJ126 Crim Justice Research Methods (W01)

October 25, 2013

Abstract

In the “Land of the Free” there are more laws on the books regarding how a person may live, attempting to mitigate the number of perceived mistakes a person can make. The questions that remain are do these laws truly help curb the use and abuse of narcotic drugs and, have these laws truly helped society as a whole? If yes, then does the individual liberty sacrificed make it worth it and, if not, what needs to be considered to make positive changes? Looking at current statistics regarding drug abuse, prosecution and incarceration rates related to drug use and sales, as well as an attempt to find solid statistics regarding the number of violent crimes related to drug use and sales, a determination can be better reached. Should the current prohibitions be kept in the criminal justice system or is it time to consider other ways to dealing with the issue of drugs?

The Case for Narcotics Legalization and Decriminalization

Ever since the Drug War began in the 1980s (Winning the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders, 2000) the United States has seen huge numbers of people in the criminal justice system. In 1997, the United Nations reported over 14 million prosecuted, over 1.6 million incarcerated, and 3.8 million on probation or parole (United Nations, 2001). The Bureau of Justice Statistics found that from 1994 to 1997 the recidivism rate for released prisoners was an astounding 67.5% (Langan & Levin, 2002). More recently it has been reported that the United States has the highest incarceration rate on the planet (Hartney, 2006) and Harvard Law Review found that African Americans are disproportionately represented in the prison population compared to outside prison populations (Winning the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders, 2000). When looking at stark numbers alone, it is alarming to see such high rates of people in the system, the disproportionate representation, and when digging deeper, the questions begging to be answered are “Is it worth it?” and “Can it be better?”

“Is it worth it?” Considering everything that is sacrificed for the Drug War, ranging from individual liberties and the emergence of a dangerous black market (Ostrowski, 1989), this is a question that that is well worth answering. Also, nearly half of the federal prison population and over 17% of state prison populations are for drug related offenses (The Sentencing Project, 2012). So, do the effects of drug laws make all this worth it? PLoS Medicine published findings from the World Health Organization regarding drug use that was documented in 17 different countries around the world (Degenhardt, et al., 2008). They found that prohibition had no effect on the number of people using drugs. They also noted that wealthier countries had higher drug usage rates and that the United States had some of the highest legal and illegal drug usages compared to other first world countries.

Another study tested the hypotheses that imprisonment and increasingly harsher sentences have a deterrent effect and found that it does not (Spohn & Holleran, 2002). They compared drug offenders that were imprisoned and released and those that were on probation. They found that the drug offenders that had been incarcerated indeed had the highest rates of recidivism and recidivated far faster than those that had been on probation, or even of those offenders with varying degrees of drug involvement or no connection to drugs at all.

What are some of the other effects of the drug war aside from increased incarceration rates and high recidivism? The emergence of a black market and the dangers associated with it are another side effect of the drug war (Ostrowski, 1989). CATO looked at the previous alcohol prohibition and compared it to today’s Drug War. The rates of murder and assault with a firearm during the prohibition of the 1920s and early 1930s showed an upward trend until the end of prohibition. After prohibition was repealed there was a drastic drop in those rates. 1933 shows the highest rate at 16 per 100,000 just before prohibition was repealed, suggesting that perhaps the trend would have continued upwards so long as prohibition was enacted. By 1935, the rate was less than 14 per 100,000 and by 1943; it was under 10 per 100,000. Street crime is an inevitable result of a black market so crime rates overall increase with prohibition. In the 1980s, the war against rising crack-cocaine markets are blamed for an increase in the homicide rates (Cole, 1996). Another study on crack related violence in New York City showed that a large number of homicides were systemic; the highest of systemic homicides being territorial disputes (Goldstein, Brownstein, Ryan, & Bellucci, 1989). These points suggest that crime driven by black markets, as opposed to crime related to drug use and abuse, are a higher concern.

CATO also points to individual cases that show the dangers of a black market to include innocent people being killed by stray bullets in a turf war shoot out and drive by killings, as well as a policeman being killed while guarding a drug witness, and gang warfare in Los Angeles (Ostrowski, 1989). The effects of black markets also reach foreign governments’ affairs including a coup d’état in Panama orchestrated by Noriega, Colombian drug wars, and more. Mexico’s notorious drug war and gun prohibition has resulted in over 60,000 drug related deaths (Rueda, 2013). Corruption is rampant as well, especially in foreign areas where bribes to control certain, more profitable drug areas lead to dangerous confrontations as well as law enforcers selling out and joining in the trade instead of stopping it (Skolnick, 1992).

Individual liberties are sacrificed as part of the War on Drugs (Ostrowski, 1989). The question that prohibitionists need to consider is not “Will prohibition stop drug abuse?” but “Do the laws themselves cause more harm than good?”  Indeed in the nineteenth century drug use was not banned and many now banned plant and plant products, such as opiates, were readily available in grocery stores without a doctor’s prescription. Yes, there were those that would become addicted; however, many others did not, such as is the case today with legal drug use. Now, because of prohibition, those that would use it without abusing it, including those using for medicinal purposes, cannot easily attain any form of drug without jumping through hoops and spending the extra money on doctors and pharmacists.

Economically, when something is mandated, the price will go up as supply is affected (Ostrowski, 1989). This theory alone was thought to help curb the illegal drug trade; however, that is not the case (Reuter, Kleiman, & R., 1986). What ends up happening is increased gang war to corner a market, as well as other, more dangerous, drugs emerge (Drunker, 1999) (Skolnick, 1992). The more drugs are intercepted, the more creative smugglers will get, making drugs more difficult to detect (Skolnick, 1992). It has been shown that 60% of the costs of the War on Drugs are to deal with crime and the black market, verses 30% on drug related illness, death and 10% on health care costs (Zeese & Lewin, 1999). There is an enormous drain on criminal justice tax dollars to find, arrest, prosecute, and punish drug offenders, even nonviolent offenders (Winning the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders, 2000) (Ostrowski, 1989).

As far as addiction, there is some evidence to support the “forbidden fruit” theory that when something is banned, it makes it more desirable for others to want to try (Ostrowski, 1989). In addition when someone does become addicted, prison and prisonization (Dobbs & Waid, 2004) is what they get as opposed to help dealing with addiction. Prison is a proven failure at stopping drug abuse (Spohn & Holleran, 2002). Drug offenders come out of prison true criminals as they have to become so in order to survive prison, a process called prisonization as mentioned above, even if their only “crime” was drug possession (a “no victim-no crime” situation).  They learn new, more dangerous ways of getting what they want instead of learning to deal with their addiction.

“Can it be better?” What can be done to improve this situation? Based on the above information, it would seem that legalization or outright decriminalization would be the answer. There was a drop in murder and assault rates with guns after prohibition ended in the 1930s (Ostrowski, 1989). We know that prohibition does not curb substance use and abuse (Degenhardt, et al., 2008). We also know that the drain and cost on tax payers to boost the criminal justice sector to deal with prohibition violations is extreme (Ostrowski, 1989) (Reuter, Kleiman, & R., 1986) (Zeese & Lewin, 1999) (Winning the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders, 2000). We know the violence and quality control dangers that the black market presents us with (Ostrowski, 1989) (Spohn & Holleran, 2002) (Cole, 1996) (Goldstein, Brownstein, Ryan, & Bellucci, 1989) (Rueda, 2013). We know that the prohibitive laws regarding drugs has caused there to be a dramatic sacrifice in individual liberties. So what can be done to help those that are suffering from drug addiction if prohibition doesn’t work and makes things worse?

It has been suggested that moving the issue of drugs and drugs abuse to the health sector instead of the criminal justice sector (Drunker, 1999) (Macleod & Hickman, 2010) (Skolnick, 1992). Harm reduction is a program used by other countries to help addicts deal with the more dangerous aspects of their drug use; however, it is frowned upon and not allowed in the federal drug program (Drunker, 1999). It is seen as “condoning drug use” instead of being seen as way to mitigate complications from drug abuse For example, clean needles could help curb exposure to diseases such as HIV/AIDS and hepatitis, but it is not done for fear of encouraging drugs abuse. It has also been suggested that prevention should be a better focus instead of criminalization, such as seen with tobacco and alcohol (Macleod & Hickman, 2010). There are scores of campaigns, both private and public, that tackle the idea of preventing abuse of those two substances seen worldwide. Why not do the same for drugs?

Part of proper education for the purpose of prevention is to not overstate the effects of drug use such as has been done in the past with marijuana (Macleod & Hickman, 2010) (Skolnick, 1992). Evidence based programs are vital to a proper campaign and teaching others of the dangers that do exist with various substances, from marijuana, to harder drugs, to alcohol and even tobacco (Macleod & Hickman, 2010). Overstatement can lead to the inference that indeed there is no harm at all (Skolnick, 1992). Many can control the ways and conditions they use any substance, others cannot and it’s an important distinction to make in an education campaign.

There are a few models of legalization or decriminalization to consider. In an unrestricted market, it has been proposed that in one swoop, smuggling, organized crime, and street violence would almost immediately decrease or, in some instances, disappear altogether (Skolnick, 1992). A second option would be the cigarette model where only the age is restricted. Next is the alcohol model where it is more regulated, and the last model is the prescription drug model in that it would have to be issued through health care service providers.

CATO also suggests four paths for legalization and decriminalization as follows (Ostrowski, 1989):

  • Option A: Decriminalization (new British system) – Government-controlled distribution through clinics only for short-term maintenance; criminal penalties for unauthorized sale and use.
  • Option B: Decriminalization – Government-controlled distribution through clinics for long-term maintenance; criminal penalties for unauthorized use and sale.
  • Option C: Decriminalization (old British system) – Government-controlled distribution; availability by prescription from any physician for treatment or maintenance; criminal penalties for non-prescription sale and use.
  • Option D: Legalization (British and American systems prior to 1914) – Distribution, sale, and use regulated on a par with the alcoholic beverage industry; alcoholic beverage industry; nonprescription use by adults permitted.

CATO points out that under the American way of criminalizing drug use, it created a violent black market in Britain within only a few years (Ostrowski, 1989). They had to come up with a new way of dealing with drugs (the new British system). However, when considering this, think about alcohol: how many people would go to a hospital to get some liquor and have to see a psychiatrist in the process? It just isn’t very practical and would not be cost effective. These are things that need to be added to the discussion when trying to shape public policy regarding drug use and abuse.

In conclusion, it would seem the evidence is there to suggest that the failures of the Drug War far outweigh any benefits. It is time to open the discussion and create positive action to move the issue of drugs away from the criminal justice system and instead offer help to those suffering from addiction and other health issues related to drug use and abuse. The first step is to change the laws, decriminalizing drugs, to curb or altogether halt dangerous black market activities and restore individual liberties. Next would be harm reduction and rehabilitation efforts for current addicts. Finally, engaging in an evidence-based education campaign with the aim of prevention should become a top priority.

References

Winning the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders. (2000, April). Harvard Law Review, 113(6), 1485-1502.

Cole, T. B. (1996, March 6). Authorities Address US Drug-Related ‘Arms Race’. JAMA, 275(9), 672-673.

Degenhardt, L., Chiu, W.-T., Sampson, N., Kessler, R. C., Anthony, J. C., Angermeyer, M., et al. (2008, July). Toward a Global View of Alcohol, Tobacco, Cannabis, and Cocaine Use: Findings from the WHO World Mental Health Surveys. PLoS Medicine, 5(7), 1053-1067.

Dobbs, R. R., & Waid, C. A. (2004). Prison Culture. Encyclopedia of Prisons & Correctional Facilities, 720-24. Thousand Oaks, CA, USA: Sage.

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The Drug War… a few statistics

People in Prison for Drugs
From the Sentencing Project

I’m currently working on a research paper regarding narcotics legalization/decriminalization. The numbers I find are staggering. I’ll post my paper after Fall semester is over in December but it isn’t hard to find the numbers. I have stated in a previous paper that the United States has the highest incarceration rate on the planet, due in no small part to the war on drugs.

Many consider the issue of drug abuse (not necessarily use, just abuse) a health concern, not a criminal one. One of the things I’m attempting to look at for this paper I’m working on is the rate of violent crimes as a result of the black market on drugs, not necessarily violent crime while on drugs. My theory, and many others’, is that the black market is what fuels a majority of drug related violence, like gang violence and turf wars. The issue of violence while on drugs (theft, domestic violence, assault, etc.) could be handled based solely on the crime that created a victim where the drug use could be treated different via a social or health setting. It would greatly decrease the amount of nonviolent drug users and abusers in prison and give a better chance to get help for addiction.

In addition to treating addiction as a health concern and not a criminal concern, removing the criminal laws against drug use, dealing, etc. would, in theory, get rid of the black market, which is extremely dangerous. That would also drastically reduce the incarceration rate in the United States.

It has been proven to work in the past as far as emptying prisons and cutting the incarceration rate in the Netherlands, who had to close prisons as a result of a lack in prisoners. Those budgets and employment opportunities could then be transferred to the health roles in dealing with drug abuse.

What are your thoughts?