Seven: Social Science
Juvenile Crime and Cognitive Dysfunction
Understanding criminal behavior is problematic at best, and a definitive explanation may not be possible. This is because non-criminals—psychologists and other experts—do the explaining, using the rational and logic-based tools of their trade. But crime, for the most part, is irrational and defies all attempts to make sense of it. Prior to World War II, criminology was rather straightforward: offenders committed crimes because they were wicked, depraved, possessed by evil spirits, or any number of things. The onus was on the criminal, and punishments skirted the boundaries of “cruel and unusual.” During World War II, however, this began to change when “the fairly new professional bodies of knowledge in psychiatry, psychology, and social work were used extensively to help treat men and women who were traumatized by the war” (Travisono). So successful were these treatments that the “medical model” of penology was the result. In short, criminals came to be viewed not as deviants, but as persons who were “led astray by imperfections in society” (Roth).
Just as in the legal system there is the concept of “burden of proof,” in criminology the issue is “burden of responsibility.” The Propensity-Event theory, formulated by Gottfredson and Hirschi, shifts the responsibility away from society and back to the offender. Individuals commit crimes because they lack self-control or other inhibitions that make civilization possible—thus, a “propensity” for irresponsible, destructive acts. In the case of juvenile crime, however, the issues are not so clear-cut. Irresponsible and self-centered propensities are held to be a natural part of adolescence, and it only seems natural that juveniles are less interested in delaying the satisfaction of their desires than are most adults. One’s level of “self-control” is the inverse operative here—deferred gratification requires more self-control, immediate gratification much, much less. Gottfredson and Hirschi establish their Propensity-Event theory on this basis, saying “crime comprises either actual or analogous attempts to procure ‘money without work, sex without courtship, [or] revenge without court delays’” (1).
Low Self-Control Compared to Cognitive Dysfunction
Reinforcing the emotional and impulsive aspects of the offender’s personality, described above, is a host of cognitive dysfunctions, summarized by Yochelson and Samenow in their “errors in thinking” approach. Whether thinking errors result in the general tendency to immediate gratification, or are used to rationalize and justify negative behaviors is debatable, but it seems likely that each supports the other in motivating an individual to commit crimes. For example, six “dimensions” of the low self-control personality are defined: a) impulsivity, b) preference for easier rather than complex tasks, c) risk seeking and risk taking, d) easy loss of temper, e) preference for physical over mental activity, and f) self-centeredness and insensitivity toward others (1). Let’s take a closer look (note: P-E will be marked numerically, thinking errors alphabetically):
1. Impulsivity—refers to a tendency to act with minimal or no premeditation, given to caprice, vagary, and unpredictability. It negates, at least for that instant, any proclivity toward self-control and restraint. Self-control operates in the interests of long-term benefit while “impulsivity” is more concerned with immediate gratification. The central argument here, according to Meier, is that “[g]iven the opportunity, people will commit acts if they perceive immediate benefit in doing so even though the long-term consequences are detrimental.” Probably the most impulsive, short-term gain involves sexual assault. In a 1988 study of the psychiatric makeup of 58 male adolescent sex offenders, 48% of the sample was diagnosed with Conduct Disorder. It was speculated that this could be part of a pattern of “poor impulse control and antisocial behavior” (Lakey). Not all impulsivity or low self-control results in criminality, of course. These tendencies, like others we will consider, are a continuum present to some degree in everyone. The fundamental difference, it seems, is an ability to formulate positive values and direct one’s conduct in a manner consistent with them. Individuals who uphold values “must be able to focus on long-term goals,” and “subordinate emotion to reason” (Edmonds). No sane person is completely devoid of reason, however. In the face of irrational short-term gain (virtually guaranteeing long-term detriment), some sort of cognitive adjustment must be made—hence, “thinking errors”:
A. Irresponsible Decision-Making, Failure to Think Long-Range, and Superoptimism—An irresponsible decision-maker “[m]akes assumptions; does not find facts; does not suspend judgment; [and] blames others when things go wrong” (Howard, Caslin). Refraining from making false assumptions and instantaneous judgments, as well as giving oneself time to find out the facts, involves a modicum of self-control. In failing to think long-range, “[the] future is not considered unless it is to accomplish something illicit or else a fantasy of tremendous success” (ibid.) In other words, here-and-now thinking is conducive to immediate gratification. Finally, because of Superoptimism, “[t]he criminal tends to think that he will be successful in all that he undertakes because of his uniqueness, therefore preparation and effort are not needed” (Bartollas, Miller). Lack of preparation increases the offender’s chances of getting caught.
2. Preference for easier rather than complex tasks, physical rather than mental activity—complex tasks generally require more patience than easier ones, and frequently a period of practice, training, or education is required. Complex tasks are therefore congruent with deferred gratification. According to Gottfredson and Hirschi, the histories of individuals with the immediate gratification trait-construct “would be characterized by shorter employment tenures, lower educational attainment (and in the case of juveniles, high truancy), and more accidents” (1). Furthermore, “such individuals are characterized by physicality, or a preference for physical rather than mental activity and a higher tolerance to physical discomfort” (ibid). Thus, it should come as no surprise that “[i]n school these [individuals] are frequently disruptive and unmotivated. Many have learning problems, including attention deficit disorder” (Lakey).
B. Fragmentation, Refusal to Accept Obligation, and Lack of Effort—Fragmentation connotes an inability to concentrate extensively on interests and goals, which “result in the criminal making good starts and poor finishes” (Bartollas, Miller). According to Howard and Caslin, predisposing (early), precipitating (immediate), and perpetuating (ongoing) precursors common to adolescent sex offenders include boredom and learning deficits—symptomatic of fragmentation. Complex tasks (such as higher education or skilled labor) demand commitment and a sense of obligation. But the individual with this dysfunction—refusing to accept obligation—“Says he or she ‘forgot’” and “does not see something as an obligation to begin with” (Lakey). There is an all round lack of effort: “[the individual is] unwilling to do anything which he or she finds boring, disagreeable; engages in self-pity and looks for excuses; psychosomatic aches and pains to avoid effort; complains of lack of energy” (ibid).
3. Risk seeking and risk taking—Dr. Stanton Samenow offers this view of what causes crime: “In my daily clinical experience I find that criminals create crime because they like it. Crime is their oxygen. It gives them a kick like nothing else” (qtd. in Van Biema). In other words, crime is exciting and exhilarating. I have compared this to the adrenaline addiction experienced by athletes and soldiers at war—not unlike the “high” experienced by compulsive gamblers.
C. Power Tactics, Flawed Definition of Success and Failure—In the former an individual “enjoys fighting for power for its own sake (the issue may be secondary)” (Howard, Caslin). The “high” comes from overpowering and dominating others. The latter is based on egocentric and unrealistic expectations: “Success is being number one overnight; failure is being anything less than number one and then considering himself or herself a ‘zero’” (ibid). For the purpose of achieving the desired “rush,” through overpowering others or winning quick, overnight success (money without work), almost any degree of risk is justified.
4. Easy loss of temper—the ability to restrain one’s emotions, especially destructive anger, requires substantial self-control. “Temperance” is the habitual modification of passions—a learned behavior that is conspicuously absent (or severely impaired) in the immediate gratification trait-construct. This is evidenced by the lack of success in important relationships, thus “shorter employment tenures” and “less stable personal relationships with all people, including persons of close relational distance” (1). Adolescent male sex offenders have been characterized as having “feelings of male inadequacy…and anger toward women” (Lakey). In school they are “frequently disruptive and unmotivated” and tend to “lash out in fits of explosive anger, hatred, and revenge” (ibid). Treatment of such individuals (where possible) requires anger management training.
D. Pride, Anger, Fear of Being Put Down—these are the sparks that ignite the too-frequent explosions. An exaggerated sense of pride makes the individual unwilling to back down, even on small points. He insists on his point of view to the exclusion of all others, and when proven wrong, insists on being “right.” Anger is used to control others, whether by direct threat, intimidation, assault, sarcasm, or annoyance. It “may go underground (‘I don't get mad, I get even’)” (Howard, Caslin). Being put down, or criticized, is another spark. The individual cannot take criticism without flaring up and blaming others (ibid). Even the smallest things that go wrong may bring an angry outburst.
5. Self-centeredness and insensitivity toward others— According to Meier, “Hirschi and Gotffredson find it useful to define crime apart from law and to employ a more ‘classical’ conception of crime—acts of force or fraud undertaken in pursuit of self-interest.” No one can accuse criminals of altruism, or sacrificing their own interests for the sake of a noble cause. Instead, in the words of Samenow, “The criminal is a person who views the world as a chessboard. People and objects are like pawns for him to move around at will. He believes that everybody must cater to him. Trust, love, loyalty and teamwork are incompatible with the criminal's way of life” (qtd. in Van Biema). Offenders “rarely feel remorse or empathy for their victims, and they deny offenses or minimize the acts and the damage they inflict” (Lakey).
E. Failure to Put Himself/Herself in the Place of Others, Attitude of Ownership, Lack of Trust—arguably, it is the ability to empathize with others that restrains most people from following their “impulses.” It may even be this very trait—empathy—that gives rise to self-control making proper socialization possible. The “attitude of ownership” means that they feel entitled: “‘if you don't give it to me, I'll take it’; treats others as property, as though it were already his or hers; makes demands of you as though he or she is asserting his or her rights” (Howard, Caslin). Not surprisingly, such individuals refuse to trust anybody, but demand it from others: “he or she blames you for not trusting him or her; tries to make you feel as though it is your fault” (ibid).
Conclusion
Propensity-Event theory and the thinking-errors approach are not, in my estimation, competing theories of deviance, but rather two complementary theories. The former approaches criminal (or deviant) behavior as predominantly emotional—i.e. the inability, or unwillingness of an individual to deny one’s desire for immediate gratification—the latter as predominantly cognitive. Hirschi and Gottfredson refer to self-control as a “latent-trait,” but reject its use as a psychological concept. Low self-control “is not the propensity to commit crime, [but] the barrier that stands between the actor and the obvious momentary benefits crime provides” (Meier). Similarly, Yochelson and Samenow view criminal behavior as an abuse of free will: "Crime resides within the person and is ‘caused' by the way he thinks, not by his environment. Criminals think differently from responsible people… Focusing on forces outside the criminal is futile” (qtd. in Teachout). My belief is that cognitive dysfunction—thinking errors—emanate from a largely unconscious need to rationalize unconscionable behavior. In other words, it’s a way of negating the pangs of a guilty conscience. It also serves to resist any attempt at rehabilitation.
References:
(1) “Behavioral Assumptions About Delinquents and Their Response to Sanctioning.” http://vesuvius.cnu.edu/SCRIPT/g324/scripts/serve_home
Bartollas, Clemens and Stuart J. Miller. Juvenile Justice in America, 3rd ed. Upper Saddle River, New Jersey: Prentice Hall, 2001.
Edmonds, Cindy. “How management accountants can avoid the temptations of unethical conduct.” (Communications and Relationships) CMA - the Management Accounting Magazine, June 1994 v68 n5 p43(1).
Howard, Nancy and Rick Caslin. “Not a laughing matter: cognitive training, not excuses is needed for sex offenders.” Corrections Today, Feb 1999 v61 i1 p34(4).
Lakey, Joyce F. “The profile and treatment of male adolescent sex offenders.” Adolescence, Winter 1994 v29 n116 p755(7).
Meier, Robert F. “The Generality of Deviance.” Social Forces, June 1995 v73 n4 p1627(3).
Roth, Thomas P. “American Corrections: From the Beginning to World War II.” Prison and Jail Administration: Practice and Theory. Eds. Peter M. Carlson and Judith Simon Garrett. Gaithersburg, MD: Aspen, 1999.
Travisono, Anthony P. “American Corrections Since World War II.” Prison and Jail Administration: Practice and Theory. Eds. Peter M. Carlson and Judith Simon Garrett. Gaithersburg, MD: Aspen, 1999.
Teachout, Terry. “Inside the criminal mind.” National Review, Sept 6, 1985 v37 p60(1).
Van Biema, David. “Society doesn't cause crime, says Dr. Stanton E. Samenow; criminals do because they enjoy it.” (interview with author) People Weekly, May 14, 1984 v21 p79(3).
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Trends
Only part of this article/report by the Council of State Governments (CSG) relates to our topic of rural justice systems, so I will outline the appropriate sections. First, the 2000 Census is cited, finding that "60 percent of Americans are suburban, 20 percent are central city and 20 percent are rural" (2002, p.20). What this boils down to is a lack of political clout and advocacy for the latter two categories of Americans. And while central city dwellers (dominated by minority groups) have their advocates, there has been no such lobbying power for rural dwellers. Thus, more than 80 nongovernmental agencies formed the National Rural Network in 2000, which functions as a "broad-based rural constituency advocate long absent to support ... congressional and presidential action on rural issues" (ibid). On Capitol Hill, the 150 member Congressional Rural Caucus urged the Bush Administration to appoint a special assistant to the president for rural affairs, as they push for a more integrated rural policy. One key to accomplishing that is to dispel the myth that "rural" is synonymous with "agriculture": "In fact, only 6.3 percent of rural Americans live on farms and farming accounts for only 7.5 percent of rural employment, according to the U.S. Department of Agriculture" (ibid). One example of conflict between national policy and rural--that is, States--interest is the "get-tough-on-crime" mentality that is so helpful in electing law & order politicians, but presents problems to localities. For the last twenty years states have moved away from discretionary sentencing and toward mandatory minimum sentences and "truth-in-sentencing." This keeps offenders locked up for longer periods of time. But it is also prohibitively expensive. Where once the federal government assisted the states with the VOI/TIS (Violent Offender Incarceration/Truth in Sentencing) program, providing funds for prison construction and the like, the VOI/TIS program no longer exists. The prisons, nevertheless, are stuck with "heavily populated" facilities and now lack the funding to provide for them. As a result, many states are moving away from "get-tough-on-crime" policies with an eye toward rehabilitating, rather than warehousing, offenders. California and Arizona in particular are turning to mandatory rehab for drug offenders instead of prison through Propositions 36 and 102 respectively. Arizona's law has saved the state $7 million in prison costs over its five- year existence. Washington and New Mexico are following their lead. Such policies are thought to reduce recidivism as well.
The administration of rural and small-town criminal justice is fundamentally the concern of states, as implied by the article above. The federal administration of justice could, in theory, be strictly limited to matters of interstate law-breaking, national security, terrorism, and so on, while the various states are left to their own devices. But the problem of crime happens to be a hot-button political issue, and when citizens suffer a lack of confidence in local law enforcement, as is so common in urban settings, it seems inevitable that they look to federal intervention. Thus, the rise of law & order political campaigns, promising to lock the bad guys up and throw away the key, while simultaneously accusing rivals of being "soft on crime." But good political rhetoric does not always translate into practical solutions to problems. Being wholly unable to prevent crime, the get-tough mentality means more police, more arrests, clogged courts, and overcrowded prisons. It is well known that the United States incarcerates a higher percentage of its populace than any other developed nation. One wonders if this is due to some inherent criminality in the American psyche or an attempt to use the criminal justice system to address deeper, harder to define social ills. At any rate, states and localities are left with the residue: increasing numbers of prisoners flooding the system while federal dollars, such as those provided by VOI/TIS, disappear.
From my studies of the subject (meager though they be), it seems obvious that the real problem is the criminalization of illegal drugs. California and Arizona are leading the way in addressing the roots of the problem rather than merely attacking the symptoms. Subtract the grand total of drug convictions in the USA and you will have a manageable justice system. At least the prisons will be reserved for the truly dangerous offenders. During the '80s and early '90s as the government launched its ill-fated "war on drugs," a policy of zero-tolerance was adopted. Meaning: even casual users of controlled substances could be slapped with lengthy prison sentences. In the past, during the era of "decriminalization," law enforcement often ignored users and went after suppliers. Simple possession of marijuana was punishable by a fine, not jail time. The purpose here is not to argue the efficacy of drug laws, only to point out that mandatory sentences applied indiscriminately are taxing the system beyond its limits. It's all well and good for the federal government to mandate minimum sentences, but an unfunded mandate places too much burden on the states. It reminds me of another great social experiment that failed: Prohibition. As the war on alcohol failed, so will the war on drugs. The enlightened approach, it would seem, is to treat it as a public health issue rather than one of criminal law.
References
"Have you spotted these trends? CSG has identified these trends that may be significant to state government. Are we on track? Let us know whether these trends are affecting your state." Send your comments to trends@csg.org. (State Trends). (rural issues, crime bills, environmental priorities, other trends). State Government News, April 2002 v45 i4 p20(2).
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East German Prisons
I found some interesting information on East German prisons and the problems they faced upon re-unification with West Germany. The German Democratic Republic (GDR) was the communist half of that partitioned State, and it formally ceased to exist on October 3, 1990 when it reunited with The Federal Republic of Germany (FRG) through what is called "Wiedervereiningung" (reunification). The legal documents, known as "Einigungsvertrag" (unification treaty) were signed by both governments on August 31, 1990. The Cold War was coming to an end. One would think that East German prisoners would welcome a transfer to Western correctional administration (if not location), but such was not always the case. According to Arnold and Feest, "On...the day of German unification, all prisons in East Berlin were to be closed and all prisoners (about 360) moved to prisons in West Berlin. When plans of this transfer became known, they were not greeted with approval by many inmates of the East Berlin prisons. For one thing, inmates were afraid to lose their newly achieved prison conditions (some of which were better than those in West Berlin). In addition, they felt ill prepared for the contact with western prisoners and their particular problems, like drugs and AIDS. Even the endeavors of the West Berlin government and of the western prison governors to prepare the new arrivals for this integration must be seen primarily in terms of appeasement. One example is a leaflet handed out to prisoners before they were transferred to West Berlin, which contains the following passage: `Nobody will force you to use any drugs. You are adult and not drug addicted. Should prisoners approach you about the subject, you should come out unequivocally against the use of drugs. As a consequence, you will not be bothered any more'" (1995, pp.81-94). Just as there is, in criminology, the "crime control" model and the "due process" model, in terms of national government there is what might be called the "social control" model and the "maximum liberty" model. Liberal western democracies (e.g. United States, European Union, etc.) emphasize the latter, communist nations the former. The People's Republic of China, for instance, solved its drug problem by simply executing drug addicts. Problem solved. But democratic nations continue to struggle with abuses of freedom--drugs, high crime rates, STDs, and so on. Thus, it is not particularly surprising that East German prisoners would be drug free and AIDS free.
American prisons and jails are administered by a wide variety of governmental entities. On the federal level there is the Federal Bureau of Prisons and the U.S. Department of Justice, just to name two. These are, for the most part, accountable to Congress and the Judiciary. State by state there are respective departments of corrections. According to Carlson, "Today, 32 states have separate departments of correction reporting to the governor; 11 as departments reporting to boards or commissions; 5 under a department of public safety umbrella; and 1 under a social services umbrella" (1999, p.25). But the point is, all are under civilian management. What if we were to discover that U.S. federal prisons were administered by the Defense Department--what would that imply? This was precisely the situation in East Germany: "Prisons in the GDR were not under the jurisdiction of the justice Ministry, but belonged to the Ministry of the Interior. The governors of prisons were, therefore, not lawyers, but officers of high military rank. The training of prison personnel also occurred exclusively within the realm of the Ministry of the Interior. Although prisons were regulated by statutory means, which included rights for prisoners, prisons in the GDR were not seen in the light of due process or justice. Furthermore, in the GDR the institution of the open prison was unknown" (Arnold & Feest, ibid). This means the GDR prison system served primarily a political function, what is referred to as a "police state model" (ibid). Several examples are given. Take the guarantee of religious freedom--something that is constitutionally mandated in the U.S., even for prisoners. Such freedom was tightly controlled in GDR prisons: "section 34 paragraph 2 of the Prison Act of 1977...granted - on demand - freedom of religious activity to all prisoners who were members of a church; the unpublished Strafvollzugsordnung (internal prison rules) specified that the demand for religious activity was to be met 'in adequate form', i.e. the educational goal was not to be jeopardized. Visits to individual prisoners were only allowed to those priests who had been checked and admitted by the Ministry of the Interior. The Strafvollzugsordnung also provided that the visits of the priest had to be monitored. More restrictive rules were added: that religious services were to be allowed only if there were enough prisoners; in the juvenile Institution (Jugendhaus), religious services were completely forbidden" (ibid). I find the phrase "the educational goal was not to be jeopardized" worth noting; the primary goal of incarceration was to "re-educate" prisoners into good socialists. American prisoners are guaranteed, by law, access to the courts--an extension of habeas corpus. But in East Germany "there was no possibility for prisoners to seek court review of administrative decisions. They merely had the right to file petitions or to complain (especially against disciplinary and security measures) to the head of their prison institution" (ibid).
But the most fascinating aspect of GDR prisons is the aforementioned "educational goal." By way of contrast, American prisons emphasize educational programs for inmates as part of the ongoing rehabilitation effort. These programs are not compulsory but a privilege that prisoners must earn through proper behavior. The mere threat of "losing your program" is enough to keep most prisoners in line. But in East German prisons the "rehabilitation" was neither voluntary nor enlightened: "According to the Prison Act of the GDR, prisoners had to be made aware of their responsibility as members of society and to be educated to 'comply with the laws of the socialist state and to reorganize their life in a responsible fashion'. The concept of education used by the correctional system of the GDR did not recognize the role of the individual. Rather, correctional education concentrated on guaranteeing security and order in the prison and aimed primarily at keeping prisoners in line. Although the Prison Act did not allow disciplinary and security measures above those enumerated in the Act, internal regulations gave guards sweeping discretion to discipline prisoners" (ibid). That "sweeping discretion" resulted in "arbitrary proceedings against prisoners. The reports and memoirs of former prisoners about their treatment in GDR prisons, which have been published after the `turning-point' [reunification], are deeply disturbing because of the inhumanity they document" (ibid). Up to this point, practices in GDR prisons seem analogous to those in this country, notwithstanding the emphasis on discipline and order (note: there is plenty of "inhumanity" in the history of American corrections too). The point of departure, however, is ideological: "Correctional education within the GDR was to a large extent also ideological education. According to section 26 of the Prison Act, measures of ideological training (e.g. participation in relevant lectures, discussion etc.) were obligatory for all prisoners. This approach was based on the simple-minded misconception that political-ideologically trained prisoners would commit no new offences" (ibid). Such was the naiveté of communism, which, according to theory, would eventually result in a world free of crime, and would thus have no need for prisons. If individuals committed crimes, it was due to inadequate education about the glories of socialism, something that prison was meant to correct. In fact, that was its overarching mission.
References
Arnold, Jorg and Johannes Feest. "Corrections in the German Democratic Republic: a field for research." British Journal of Criminology, Wntr 1995 v35 n1 p81-94.
Carlson, Peter M. "The Organization of the Institution." Prison and Jail Administration: Practice and Theory. Eds. Peter M. Carlson and Judith Simon Garrett. Gaithersburg, MD: Aspen, 1999.
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Juvenile Detention
This article by Steve Christian, "Out of lock-up: now what?", appears in State Legislatures, December 2003. It presents an overview of issues concerning the re-entry of juvenile offenders to the larger community, and what various states are doing to reduce recidivism. Efforts include such things as focusing on educational programs, promoting "engagement" (i.e. involvement in school, work, family, support groups, etc.), and a new kind of court--juvenile re-entry courts. Challenges to these efforts include budget cuts, hostile community environments (e.g. drugs, dysfunctional families), and what to do with serious, violent offenders.
According to the Justice Department about 100,000 youthful offenders are released every year, many of whom had drug or mental health problems. Since it costs about $135 per day to keep a juvenile incarcerated, reducing recidivism rates can result in tremendous savings (there's always a money angle). Although various states handle their releases in different ways, in the past surveillance and monitoring was favored over support. Now that's starting to change. California, for example, adopted an educational program called High-Risk Youth Education and Public Safety Program (1977), which aimed at keeping released young offenders in school, and was called "very successful" by the U.S. Department of Education. Similar efforts are part of recent national legislation: "Education for youthful offenders is a major emphasis of Title 1, Part D, of the No Child Left Behind Act, which provides about $48 million for children who are neglected, delinquent or at-risk. States must use between 15 percent and 30 percent of their grants to help young offenders get back in school successfully or get college or vocational training if they have graduated" (Christian, 2003, p. 21). According to a University of Oregon Study, a young offender who remained in the community for one year following release would almost never return to the system--in other words, virtually all recidivism occurred within 12 months. Thus the importance of "engagement," because "young offenders who had become 'engaged' in work or school immediately after release tended to stay out of trouble at much higher rates than those who did not" (ibid). Another innovation are juvenile re-entry courts: "Like drug courts, re-entry courts involve close collaboration among all participants, active involvement of the judge in the juvenile's progress, support and treatment services, frequent court appearances, and an array of rewards and penalties" (ibid). These things are also being set up for adults. The most significant factor in re-entry courts is close involvement by the judge. In many states, however, budget cuts are making it difficult to implement new and innovative youth programs, however successful. Weak support from families and the temptation of drugs are problematic as well. All states except Nebraska have applied for grants under the federal Serious and Violent Offender Re-Entry Initiative to assist in these efforts.
Programs that are more or less parallel to those in the U.S. are being tried in Canada (that dangerous power to the north)--specifically, the 2002 Youth Criminal Justice Act (YCJA) and the Young Offenders Act (YOA). The innovation here is an attempt to incorporate parents into the juvenile justice system, whereas before they had been virtually invisible--or worse, held liable for their children's criminal acts. According to Hillian and Reitsma-Street (2003, p.19), "Blaming parents is an expression of the faulty parenting paradigm, a set of ideas that children in trouble are the product of poor parenting and that both children and parents should be held accountable. This tendency to blame parents is now being manifested in parental responsibility laws, such as those passed in Manitoba and Ontario, allowing victims of property crime to take civil proceedings against the parents of young offenders...The 2001 Parental Responsibility Act of British Columbia, for instance, states that an individual or an insurance company can use small claims court to commence a civil action against a parent of a child who caused property loss. A parent must pay compensation up to $10,000 unless able to satisfy the court that reasonable supervision was exercised and destructive activity discouraged. The burden of proof is not on the state to prove parental negligence, but on the parent to prove s/he should not be held liable." One questions the efficacy of holding parents liable for the acts of their unruly youngsters; it's almost like the gun-control controversy: having no idea how to curtail violent crime, some insist on blaming the instrument of violence rather than the one who wields it. I am personally convinced that even the best of parents have little real control over their young (at least it was true for me as a teenager). Relieving the state of the burden of proving parental neglect and placing the burden on parents--to prove good parenting--is too much like requiring defendants prove their innocence. But the YCJA represents a new approach: "This community change approach assumes that youth and their parents are primarily neither rational individuals acting in their own best interests nor deviants in need of rehabilitation. Their choices, including decisions to commit crimes, are made in the context of current possibilities and historical constraints. Systemic changes are needed to promote the welfare of all youth and families, to stop violence, and to prevent crime. Parents and their communities are responsible for the care, supervision, and control of young people, and society is collectively responsible to ensure there are sufficient resources for raising healthy children and youth" (ibid). In other words, youth deviance does not necessarily transfer to parents, making them criminals as well. It is seen as a community-wide problem. For example, the prevalence of drugs--a major source youth crime--cannot be reasonably pinned on parents. It is a social ill, and as such the responsibility of society at large.
References
Christian, Steve. "Out of lock-up: now what? A large number of youthful offenders released from confinement end up back in the system. Helping kids re-enter the community can help them stay out of trouble and save states money." State Legislatures, Dec 2003 v29 i10 p21(3).
Hillian, Doug and Marge Reitsma-Street. "Parents and youth justice." Canadian Journal of Criminology and Criminal Justice, Jan 2003 v45 i1 p19(23).
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Bail Practices
The purpose of posting bail in criminal cases is simply to ensure that the accused shows up for trial; thus, when considering such things as how much the bail shall be or whether it should be granted at all, cannot be determined by the seriousness of the crime per se or the defendant's potential for further mischief after release. This has to do with the "presumption of innocence," since closely tying bail amounts to the type of accusation could be considered a presumption of guilt. None of the preceding is true in the absolute sense, of course, but that is the theoretical basis of bail and bonding. The various methods of securing pretrial release in other countries supports the theoretical aspect--Recognizance, Criminalization, Nonfinancial systems bolster the presumption of innocence, seeking the sole objective of having the accused appear in court as promised. The use of "commercial" bail in the United States seems appropriate to the entrepreneurial nature of this nation--the USA is all about making a buck!
Before we begin a discussion of the historical aspects of bail practices and procedures, it would be helpful to mention a few facts. First, there is no absolute right to bail or pretrial release. Some offenses are, by law, non-bailable, while others are bailable. This distinction is based on potential punishments for the crime one is accused of. In capital crimes that carry the death penalty or life incarceration, bail may be denied altogether. Second, bail is related to the legal concept of habeas corpus--the right of an accused not to be arbitrarily imprisoned without charges or some timetable for court proceedings. Third, the adoption of English common law traditions by the United States during its founding period has gone through a number of reform movements since the 1960s. For example, one commonly used method nowadays is release on recognizance (ROR), where a promise to appear in court is sufficient without posting bail. To better appreciate how these changes have come about and why, therefore, a historical perspective will be useful.
The Common Law Basis of Bail
American jurisprudence is a direct outgrowth of English common law, so let's briefly consider how pretrial release developed in English history. Prior to the 13th century pretrial release was at the discretion of local sheriffs--agents of the Crown. The tendency of some sheriffs to manipulate the situation to their own personal gain led to the 1275 Statute of Westminster, which eliminated their discretion as to which offenses were bailable. Bailable and non-bailable offenses were clearly listed and "[t]he sheriffs retained the authority to decide the amount of bail and to weigh all relevant factors to arrive at that amount" (1). They retained discretion, in other words, regarding how much bail should be required. The next reform occurred when Parliament passed the Petition of Right in 1628. This came as a result of King Charles I attempting to "shake down" noblemen for compulsory loans. Those who refused to "lend" the King money were imprisoned without bail. Accordingly, "[f]ive incarcerated knights filed a habeas corpus petition arguing that they could not be held indefinitely without trial or bail. The King would neither bail the prisoners nor inform them of any charges against them. The King's reason for keeping the charges secret was evident: the charges were illegal; the knights had no obligation to lend to the King. When the case was brought before the court, counsel for the knights argued that without a trial or conviction, the petitioners were being detained solely on the basis of an unsubstantiated and unstated accusation" (ibid). When the courts sided with the King, Parliament acted. The Petition of Right stated that the King's actions violated the Magna Carta, which prohibited imprisonment without due process, and held that "man could not be held before trial on the basis of an unspecific accusation" (ibid). The Petition did not circumvent the Statute of Westminster, however, and bailable versus non-bailable offenses remained as before. When king and court managed to evade the requirements of the Petition by endlessly delaying writs of habeas corpus, the Habeas Corpus Act of 1677 was passed. This act brought the use of habeas corpus to a state more or less recognizable to today's practice. Thus, "[b]y requiring early designation of the cause for arrest, the Habeas Corpus Act provided a suspect with knowledge that the alleged offense was either bailable or not" (ibid). It did not, however, protect against excessive bail requirements. If a commoner committed the crime of petty larceny and his bail was set at one million pounds, there might as well be no habeas corpus at all. This abuse resulted in the English Bill of Rights of 1689, which stated that "excessive bail ought not to be required," and accused the King of subverting the liberties of English citizens.
In colonial America some colonies wrote their own laws regarding pretrial release, while others simply guaranteed the rights of British citizens. This was no longer viable after the Revolution of 1776, so the states had to enact their particular statutes (still patterned after English law, however). For example, the clause in the Virginia Constitution which outlawed "excessive" bail was identical to the one in the English Bill of Rights (ibid), while the Virginia Constitution served as the model for the first ten amendments (called the Bill of Rights) to the new U.S. Constitution. And indeed, "[t]he Eighth Amendment in this Bill of Rights was taken virtually verbatim from Section 9 of the Virginia Constitution and provided that 'Excessive bail shall not be required...'" (ibid). It is interesting to note, therefore, that "[t]he Constitution merely guarantees that excessive bail may not be employed to hold suspects who by law are entitled to bail; similarly the Sixth Amendment enables prisoners to know if they are in fact entitled to bail under the law; it does not give them any right to bail already existing in the law. Thus, the legislature and not the constitution is the real framer of bail law; the Constitution upholds and protects against abuse of the system which the legislature creates. This principle was well understood by the Framers of the Bill of Rights. In fact, the same Congress that proposed the Eighth Amendment also formulated the fundamental bail statute that remained in force until 1966" (ibid). The Bill of Rights, passed on September 21, 1789 by the First Congress, was debated simultaneously as the Judiciary Act of 1789 (which created the federal court system), passed on September 29. What this means, fundamentally, is that the First Congress adopted the English system of tripartite protection against bail abuses: "The Eighth Amendment prohibition against excessive bail meant that bail may not be excessive in those cases where Congress has deemed it proper to permit bail. The Congress then enacted the Judiciary Act defining what offenses would be bailable. Habeas corpus protection was afforded by Article I of the Constitution" (ibid). It also means that the Eighth Amendment is not "self-executing," since it requires legislative acts to put it into effect.
Modern Bail Practices
The first major change in federal bail law since 1789 came with the Bail Reform Act of 1966. This legislation states that a non-capital defendant "shall...be ordered released pending trial on his personal recognizance" or on personal bond unless the judicial officer determines that these incentives will not adequately assure his appearance at trial. In that case, the judge must select the least restrictive alternative from a list of conditions designed to guarantee appearance" (ibid). The Act, evidently, was part of the general move in the '60s to enhance the rights of defendants, meaning that bail decisions were made solely for the purpose of ensuring court appearances. From this time, ROR began to be widely used. The liberal approach created another controversy, especially in the District of Columbia, when non-capital but nonetheless dangerous defendants, ROR or minimal bail, went on to commit further crimes. This resulted in the District of Columbia Court Reform and Criminal Procedure Act of 1970, which allowed judges to consider a non-capital defendant's "dangerousness" as well as potential flight risk when setting bail (ibid).
ROR is perhaps the most significant reform of pretrial release since it undercuts the punitive effects of arrest on indigent persons, but there are several contrasting methods employed by various jurisdictions. Types of financial release include a) full cash bond--in which the defendant posts the entire amount with the court. If he appears for trial, the money is refunded, if not, it is forfeited; b) deposit bond--in which the defendant posts a percentage of the bond (e.g. 10%). Upon FTA the whole bond comes due. Otherwise, part of the money may be kept for administrative costs; c) surety bond--in which a bail bond company signs a promissory note to the court and charges the defendant a non-refundable percentage (e.g. 10%). Upon FTA the bail bond company is liable for the whole amount; d) property bond--in which a defendant puts up collateral equal to the amount of the bond, which can be forfeited upon FTA. Types of nonfinancial release include e) unsecured bond--in which the defendant pays no money but is liable for the whole amount upon FTA; f) release on recognizance--in which the defendant promises to make all court appearances; g) citation release--in which the defendant is released on a written order of law enforcement officials; h) conditional release--in which the defendant is released under certain conditions and is usually supervised by a pretrial services agency; i) emergency release--in which the defendant is released by a court order placing limits on a jail population (2).
Regarding the pretrial services agencies, mentioned above, these assist the criminal justice system by gathering background information on defendants and making recommendations to the courts about what type of pretrial release, if any, is warranted. Of especial import is the pretrial release officer. According to Petee, "Officers in these programs interview criminal defendants who are scheduled to appear for arraignment; the officers gather information on residence, living arrangements, employment, and prior record. After the information gathered has been verified and a detailed record check has been conducted, the pretrial release officer makes recommendations to the presiding judge. These recommendations focus on the possible release of a defendant into the community prior to trial through some form of release on recognizance" (1994, p.375). In assessing the potential risks of releasing defendants ROR, certain statutorily defined criteria are used. These include a) living arrangements; b) employment; c) seriousness of the offense; d) criminal record; and e) prior FTA incidents. These criteria are typically arranged on a scale, using a point system (ibid). The resulting score becomes the basis of the officer's recommendation. It is important to understand, however, that the pretrial release officer's recommendation is just that--the judge has final discretion in the matter.
References
(1) http://www.bail.com/history.htm
(2) http://www.ojp.usdoj.gov/bjs/pub/ascii/nprp92.txt
Petee, Thomas A. "Recommended for release on recognizance: factors affecting pretrial release recommendations." The Journal of Social Psychology, June 1994 v134 n3 p375(8).
Understanding criminal behavior is problematic at best, and a definitive explanation may not be possible. This is because non-criminals—psychologists and other experts—do the explaining, using the rational and logic-based tools of their trade. But crime, for the most part, is irrational and defies all attempts to make sense of it. Prior to World War II, criminology was rather straightforward: offenders committed crimes because they were wicked, depraved, possessed by evil spirits, or any number of things. The onus was on the criminal, and punishments skirted the boundaries of “cruel and unusual.” During World War II, however, this began to change when “the fairly new professional bodies of knowledge in psychiatry, psychology, and social work were used extensively to help treat men and women who were traumatized by the war” (Travisono). So successful were these treatments that the “medical model” of penology was the result. In short, criminals came to be viewed not as deviants, but as persons who were “led astray by imperfections in society” (Roth).
Just as in the legal system there is the concept of “burden of proof,” in criminology the issue is “burden of responsibility.” The Propensity-Event theory, formulated by Gottfredson and Hirschi, shifts the responsibility away from society and back to the offender. Individuals commit crimes because they lack self-control or other inhibitions that make civilization possible—thus, a “propensity” for irresponsible, destructive acts. In the case of juvenile crime, however, the issues are not so clear-cut. Irresponsible and self-centered propensities are held to be a natural part of adolescence, and it only seems natural that juveniles are less interested in delaying the satisfaction of their desires than are most adults. One’s level of “self-control” is the inverse operative here—deferred gratification requires more self-control, immediate gratification much, much less. Gottfredson and Hirschi establish their Propensity-Event theory on this basis, saying “crime comprises either actual or analogous attempts to procure ‘money without work, sex without courtship, [or] revenge without court delays’” (1).
Low Self-Control Compared to Cognitive Dysfunction
Reinforcing the emotional and impulsive aspects of the offender’s personality, described above, is a host of cognitive dysfunctions, summarized by Yochelson and Samenow in their “errors in thinking” approach. Whether thinking errors result in the general tendency to immediate gratification, or are used to rationalize and justify negative behaviors is debatable, but it seems likely that each supports the other in motivating an individual to commit crimes. For example, six “dimensions” of the low self-control personality are defined: a) impulsivity, b) preference for easier rather than complex tasks, c) risk seeking and risk taking, d) easy loss of temper, e) preference for physical over mental activity, and f) self-centeredness and insensitivity toward others (1). Let’s take a closer look (note: P-E will be marked numerically, thinking errors alphabetically):
1. Impulsivity—refers to a tendency to act with minimal or no premeditation, given to caprice, vagary, and unpredictability. It negates, at least for that instant, any proclivity toward self-control and restraint. Self-control operates in the interests of long-term benefit while “impulsivity” is more concerned with immediate gratification. The central argument here, according to Meier, is that “[g]iven the opportunity, people will commit acts if they perceive immediate benefit in doing so even though the long-term consequences are detrimental.” Probably the most impulsive, short-term gain involves sexual assault. In a 1988 study of the psychiatric makeup of 58 male adolescent sex offenders, 48% of the sample was diagnosed with Conduct Disorder. It was speculated that this could be part of a pattern of “poor impulse control and antisocial behavior” (Lakey). Not all impulsivity or low self-control results in criminality, of course. These tendencies, like others we will consider, are a continuum present to some degree in everyone. The fundamental difference, it seems, is an ability to formulate positive values and direct one’s conduct in a manner consistent with them. Individuals who uphold values “must be able to focus on long-term goals,” and “subordinate emotion to reason” (Edmonds). No sane person is completely devoid of reason, however. In the face of irrational short-term gain (virtually guaranteeing long-term detriment), some sort of cognitive adjustment must be made—hence, “thinking errors”:
A. Irresponsible Decision-Making, Failure to Think Long-Range, and Superoptimism—An irresponsible decision-maker “[m]akes assumptions; does not find facts; does not suspend judgment; [and] blames others when things go wrong” (Howard, Caslin). Refraining from making false assumptions and instantaneous judgments, as well as giving oneself time to find out the facts, involves a modicum of self-control. In failing to think long-range, “[the] future is not considered unless it is to accomplish something illicit or else a fantasy of tremendous success” (ibid.) In other words, here-and-now thinking is conducive to immediate gratification. Finally, because of Superoptimism, “[t]he criminal tends to think that he will be successful in all that he undertakes because of his uniqueness, therefore preparation and effort are not needed” (Bartollas, Miller). Lack of preparation increases the offender’s chances of getting caught.
2. Preference for easier rather than complex tasks, physical rather than mental activity—complex tasks generally require more patience than easier ones, and frequently a period of practice, training, or education is required. Complex tasks are therefore congruent with deferred gratification. According to Gottfredson and Hirschi, the histories of individuals with the immediate gratification trait-construct “would be characterized by shorter employment tenures, lower educational attainment (and in the case of juveniles, high truancy), and more accidents” (1). Furthermore, “such individuals are characterized by physicality, or a preference for physical rather than mental activity and a higher tolerance to physical discomfort” (ibid). Thus, it should come as no surprise that “[i]n school these [individuals] are frequently disruptive and unmotivated. Many have learning problems, including attention deficit disorder” (Lakey).
B. Fragmentation, Refusal to Accept Obligation, and Lack of Effort—Fragmentation connotes an inability to concentrate extensively on interests and goals, which “result in the criminal making good starts and poor finishes” (Bartollas, Miller). According to Howard and Caslin, predisposing (early), precipitating (immediate), and perpetuating (ongoing) precursors common to adolescent sex offenders include boredom and learning deficits—symptomatic of fragmentation. Complex tasks (such as higher education or skilled labor) demand commitment and a sense of obligation. But the individual with this dysfunction—refusing to accept obligation—“Says he or she ‘forgot’” and “does not see something as an obligation to begin with” (Lakey). There is an all round lack of effort: “[the individual is] unwilling to do anything which he or she finds boring, disagreeable; engages in self-pity and looks for excuses; psychosomatic aches and pains to avoid effort; complains of lack of energy” (ibid).
3. Risk seeking and risk taking—Dr. Stanton Samenow offers this view of what causes crime: “In my daily clinical experience I find that criminals create crime because they like it. Crime is their oxygen. It gives them a kick like nothing else” (qtd. in Van Biema). In other words, crime is exciting and exhilarating. I have compared this to the adrenaline addiction experienced by athletes and soldiers at war—not unlike the “high” experienced by compulsive gamblers.
C. Power Tactics, Flawed Definition of Success and Failure—In the former an individual “enjoys fighting for power for its own sake (the issue may be secondary)” (Howard, Caslin). The “high” comes from overpowering and dominating others. The latter is based on egocentric and unrealistic expectations: “Success is being number one overnight; failure is being anything less than number one and then considering himself or herself a ‘zero’” (ibid). For the purpose of achieving the desired “rush,” through overpowering others or winning quick, overnight success (money without work), almost any degree of risk is justified.
4. Easy loss of temper—the ability to restrain one’s emotions, especially destructive anger, requires substantial self-control. “Temperance” is the habitual modification of passions—a learned behavior that is conspicuously absent (or severely impaired) in the immediate gratification trait-construct. This is evidenced by the lack of success in important relationships, thus “shorter employment tenures” and “less stable personal relationships with all people, including persons of close relational distance” (1). Adolescent male sex offenders have been characterized as having “feelings of male inadequacy…and anger toward women” (Lakey). In school they are “frequently disruptive and unmotivated” and tend to “lash out in fits of explosive anger, hatred, and revenge” (ibid). Treatment of such individuals (where possible) requires anger management training.
D. Pride, Anger, Fear of Being Put Down—these are the sparks that ignite the too-frequent explosions. An exaggerated sense of pride makes the individual unwilling to back down, even on small points. He insists on his point of view to the exclusion of all others, and when proven wrong, insists on being “right.” Anger is used to control others, whether by direct threat, intimidation, assault, sarcasm, or annoyance. It “may go underground (‘I don't get mad, I get even’)” (Howard, Caslin). Being put down, or criticized, is another spark. The individual cannot take criticism without flaring up and blaming others (ibid). Even the smallest things that go wrong may bring an angry outburst.
5. Self-centeredness and insensitivity toward others— According to Meier, “Hirschi and Gotffredson find it useful to define crime apart from law and to employ a more ‘classical’ conception of crime—acts of force or fraud undertaken in pursuit of self-interest.” No one can accuse criminals of altruism, or sacrificing their own interests for the sake of a noble cause. Instead, in the words of Samenow, “The criminal is a person who views the world as a chessboard. People and objects are like pawns for him to move around at will. He believes that everybody must cater to him. Trust, love, loyalty and teamwork are incompatible with the criminal's way of life” (qtd. in Van Biema). Offenders “rarely feel remorse or empathy for their victims, and they deny offenses or minimize the acts and the damage they inflict” (Lakey).
E. Failure to Put Himself/Herself in the Place of Others, Attitude of Ownership, Lack of Trust—arguably, it is the ability to empathize with others that restrains most people from following their “impulses.” It may even be this very trait—empathy—that gives rise to self-control making proper socialization possible. The “attitude of ownership” means that they feel entitled: “‘if you don't give it to me, I'll take it’; treats others as property, as though it were already his or hers; makes demands of you as though he or she is asserting his or her rights” (Howard, Caslin). Not surprisingly, such individuals refuse to trust anybody, but demand it from others: “he or she blames you for not trusting him or her; tries to make you feel as though it is your fault” (ibid).
Conclusion
Propensity-Event theory and the thinking-errors approach are not, in my estimation, competing theories of deviance, but rather two complementary theories. The former approaches criminal (or deviant) behavior as predominantly emotional—i.e. the inability, or unwillingness of an individual to deny one’s desire for immediate gratification—the latter as predominantly cognitive. Hirschi and Gottfredson refer to self-control as a “latent-trait,” but reject its use as a psychological concept. Low self-control “is not the propensity to commit crime, [but] the barrier that stands between the actor and the obvious momentary benefits crime provides” (Meier). Similarly, Yochelson and Samenow view criminal behavior as an abuse of free will: "Crime resides within the person and is ‘caused' by the way he thinks, not by his environment. Criminals think differently from responsible people… Focusing on forces outside the criminal is futile” (qtd. in Teachout). My belief is that cognitive dysfunction—thinking errors—emanate from a largely unconscious need to rationalize unconscionable behavior. In other words, it’s a way of negating the pangs of a guilty conscience. It also serves to resist any attempt at rehabilitation.
References:
(1) “Behavioral Assumptions About Delinquents and Their Response to Sanctioning.” http://vesuvius.cnu.edu/SCRIPT/g324/scripts/serve_home
Bartollas, Clemens and Stuart J. Miller. Juvenile Justice in America, 3rd ed. Upper Saddle River, New Jersey: Prentice Hall, 2001.
Edmonds, Cindy. “How management accountants can avoid the temptations of unethical conduct.” (Communications and Relationships) CMA - the Management Accounting Magazine, June 1994 v68 n5 p43(1).
Howard, Nancy and Rick Caslin. “Not a laughing matter: cognitive training, not excuses is needed for sex offenders.” Corrections Today, Feb 1999 v61 i1 p34(4).
Lakey, Joyce F. “The profile and treatment of male adolescent sex offenders.” Adolescence, Winter 1994 v29 n116 p755(7).
Meier, Robert F. “The Generality of Deviance.” Social Forces, June 1995 v73 n4 p1627(3).
Roth, Thomas P. “American Corrections: From the Beginning to World War II.” Prison and Jail Administration: Practice and Theory. Eds. Peter M. Carlson and Judith Simon Garrett. Gaithersburg, MD: Aspen, 1999.
Travisono, Anthony P. “American Corrections Since World War II.” Prison and Jail Administration: Practice and Theory. Eds. Peter M. Carlson and Judith Simon Garrett. Gaithersburg, MD: Aspen, 1999.
Teachout, Terry. “Inside the criminal mind.” National Review, Sept 6, 1985 v37 p60(1).
Van Biema, David. “Society doesn't cause crime, says Dr. Stanton E. Samenow; criminals do because they enjoy it.” (interview with author) People Weekly, May 14, 1984 v21 p79(3).
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Trends
Only part of this article/report by the Council of State Governments (CSG) relates to our topic of rural justice systems, so I will outline the appropriate sections. First, the 2000 Census is cited, finding that "60 percent of Americans are suburban, 20 percent are central city and 20 percent are rural" (2002, p.20). What this boils down to is a lack of political clout and advocacy for the latter two categories of Americans. And while central city dwellers (dominated by minority groups) have their advocates, there has been no such lobbying power for rural dwellers. Thus, more than 80 nongovernmental agencies formed the National Rural Network in 2000, which functions as a "broad-based rural constituency advocate long absent to support ... congressional and presidential action on rural issues" (ibid). On Capitol Hill, the 150 member Congressional Rural Caucus urged the Bush Administration to appoint a special assistant to the president for rural affairs, as they push for a more integrated rural policy. One key to accomplishing that is to dispel the myth that "rural" is synonymous with "agriculture": "In fact, only 6.3 percent of rural Americans live on farms and farming accounts for only 7.5 percent of rural employment, according to the U.S. Department of Agriculture" (ibid). One example of conflict between national policy and rural--that is, States--interest is the "get-tough-on-crime" mentality that is so helpful in electing law & order politicians, but presents problems to localities. For the last twenty years states have moved away from discretionary sentencing and toward mandatory minimum sentences and "truth-in-sentencing." This keeps offenders locked up for longer periods of time. But it is also prohibitively expensive. Where once the federal government assisted the states with the VOI/TIS (Violent Offender Incarceration/Truth in Sentencing) program, providing funds for prison construction and the like, the VOI/TIS program no longer exists. The prisons, nevertheless, are stuck with "heavily populated" facilities and now lack the funding to provide for them. As a result, many states are moving away from "get-tough-on-crime" policies with an eye toward rehabilitating, rather than warehousing, offenders. California and Arizona in particular are turning to mandatory rehab for drug offenders instead of prison through Propositions 36 and 102 respectively. Arizona's law has saved the state $7 million in prison costs over its five- year existence. Washington and New Mexico are following their lead. Such policies are thought to reduce recidivism as well.
The administration of rural and small-town criminal justice is fundamentally the concern of states, as implied by the article above. The federal administration of justice could, in theory, be strictly limited to matters of interstate law-breaking, national security, terrorism, and so on, while the various states are left to their own devices. But the problem of crime happens to be a hot-button political issue, and when citizens suffer a lack of confidence in local law enforcement, as is so common in urban settings, it seems inevitable that they look to federal intervention. Thus, the rise of law & order political campaigns, promising to lock the bad guys up and throw away the key, while simultaneously accusing rivals of being "soft on crime." But good political rhetoric does not always translate into practical solutions to problems. Being wholly unable to prevent crime, the get-tough mentality means more police, more arrests, clogged courts, and overcrowded prisons. It is well known that the United States incarcerates a higher percentage of its populace than any other developed nation. One wonders if this is due to some inherent criminality in the American psyche or an attempt to use the criminal justice system to address deeper, harder to define social ills. At any rate, states and localities are left with the residue: increasing numbers of prisoners flooding the system while federal dollars, such as those provided by VOI/TIS, disappear.
From my studies of the subject (meager though they be), it seems obvious that the real problem is the criminalization of illegal drugs. California and Arizona are leading the way in addressing the roots of the problem rather than merely attacking the symptoms. Subtract the grand total of drug convictions in the USA and you will have a manageable justice system. At least the prisons will be reserved for the truly dangerous offenders. During the '80s and early '90s as the government launched its ill-fated "war on drugs," a policy of zero-tolerance was adopted. Meaning: even casual users of controlled substances could be slapped with lengthy prison sentences. In the past, during the era of "decriminalization," law enforcement often ignored users and went after suppliers. Simple possession of marijuana was punishable by a fine, not jail time. The purpose here is not to argue the efficacy of drug laws, only to point out that mandatory sentences applied indiscriminately are taxing the system beyond its limits. It's all well and good for the federal government to mandate minimum sentences, but an unfunded mandate places too much burden on the states. It reminds me of another great social experiment that failed: Prohibition. As the war on alcohol failed, so will the war on drugs. The enlightened approach, it would seem, is to treat it as a public health issue rather than one of criminal law.
References
"Have you spotted these trends? CSG has identified these trends that may be significant to state government. Are we on track? Let us know whether these trends are affecting your state." Send your comments to trends@csg.org. (State Trends). (rural issues, crime bills, environmental priorities, other trends). State Government News, April 2002 v45 i4 p20(2).
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East German Prisons
I found some interesting information on East German prisons and the problems they faced upon re-unification with West Germany. The German Democratic Republic (GDR) was the communist half of that partitioned State, and it formally ceased to exist on October 3, 1990 when it reunited with The Federal Republic of Germany (FRG) through what is called "Wiedervereiningung" (reunification). The legal documents, known as "Einigungsvertrag" (unification treaty) were signed by both governments on August 31, 1990. The Cold War was coming to an end. One would think that East German prisoners would welcome a transfer to Western correctional administration (if not location), but such was not always the case. According to Arnold and Feest, "On...the day of German unification, all prisons in East Berlin were to be closed and all prisoners (about 360) moved to prisons in West Berlin. When plans of this transfer became known, they were not greeted with approval by many inmates of the East Berlin prisons. For one thing, inmates were afraid to lose their newly achieved prison conditions (some of which were better than those in West Berlin). In addition, they felt ill prepared for the contact with western prisoners and their particular problems, like drugs and AIDS. Even the endeavors of the West Berlin government and of the western prison governors to prepare the new arrivals for this integration must be seen primarily in terms of appeasement. One example is a leaflet handed out to prisoners before they were transferred to West Berlin, which contains the following passage: `Nobody will force you to use any drugs. You are adult and not drug addicted. Should prisoners approach you about the subject, you should come out unequivocally against the use of drugs. As a consequence, you will not be bothered any more'" (1995, pp.81-94). Just as there is, in criminology, the "crime control" model and the "due process" model, in terms of national government there is what might be called the "social control" model and the "maximum liberty" model. Liberal western democracies (e.g. United States, European Union, etc.) emphasize the latter, communist nations the former. The People's Republic of China, for instance, solved its drug problem by simply executing drug addicts. Problem solved. But democratic nations continue to struggle with abuses of freedom--drugs, high crime rates, STDs, and so on. Thus, it is not particularly surprising that East German prisoners would be drug free and AIDS free.
American prisons and jails are administered by a wide variety of governmental entities. On the federal level there is the Federal Bureau of Prisons and the U.S. Department of Justice, just to name two. These are, for the most part, accountable to Congress and the Judiciary. State by state there are respective departments of corrections. According to Carlson, "Today, 32 states have separate departments of correction reporting to the governor; 11 as departments reporting to boards or commissions; 5 under a department of public safety umbrella; and 1 under a social services umbrella" (1999, p.25). But the point is, all are under civilian management. What if we were to discover that U.S. federal prisons were administered by the Defense Department--what would that imply? This was precisely the situation in East Germany: "Prisons in the GDR were not under the jurisdiction of the justice Ministry, but belonged to the Ministry of the Interior. The governors of prisons were, therefore, not lawyers, but officers of high military rank. The training of prison personnel also occurred exclusively within the realm of the Ministry of the Interior. Although prisons were regulated by statutory means, which included rights for prisoners, prisons in the GDR were not seen in the light of due process or justice. Furthermore, in the GDR the institution of the open prison was unknown" (Arnold & Feest, ibid). This means the GDR prison system served primarily a political function, what is referred to as a "police state model" (ibid). Several examples are given. Take the guarantee of religious freedom--something that is constitutionally mandated in the U.S., even for prisoners. Such freedom was tightly controlled in GDR prisons: "section 34 paragraph 2 of the Prison Act of 1977...granted - on demand - freedom of religious activity to all prisoners who were members of a church; the unpublished Strafvollzugsordnung (internal prison rules) specified that the demand for religious activity was to be met 'in adequate form', i.e. the educational goal was not to be jeopardized. Visits to individual prisoners were only allowed to those priests who had been checked and admitted by the Ministry of the Interior. The Strafvollzugsordnung also provided that the visits of the priest had to be monitored. More restrictive rules were added: that religious services were to be allowed only if there were enough prisoners; in the juvenile Institution (Jugendhaus), religious services were completely forbidden" (ibid). I find the phrase "the educational goal was not to be jeopardized" worth noting; the primary goal of incarceration was to "re-educate" prisoners into good socialists. American prisoners are guaranteed, by law, access to the courts--an extension of habeas corpus. But in East Germany "there was no possibility for prisoners to seek court review of administrative decisions. They merely had the right to file petitions or to complain (especially against disciplinary and security measures) to the head of their prison institution" (ibid).
But the most fascinating aspect of GDR prisons is the aforementioned "educational goal." By way of contrast, American prisons emphasize educational programs for inmates as part of the ongoing rehabilitation effort. These programs are not compulsory but a privilege that prisoners must earn through proper behavior. The mere threat of "losing your program" is enough to keep most prisoners in line. But in East German prisons the "rehabilitation" was neither voluntary nor enlightened: "According to the Prison Act of the GDR, prisoners had to be made aware of their responsibility as members of society and to be educated to 'comply with the laws of the socialist state and to reorganize their life in a responsible fashion'. The concept of education used by the correctional system of the GDR did not recognize the role of the individual. Rather, correctional education concentrated on guaranteeing security and order in the prison and aimed primarily at keeping prisoners in line. Although the Prison Act did not allow disciplinary and security measures above those enumerated in the Act, internal regulations gave guards sweeping discretion to discipline prisoners" (ibid). That "sweeping discretion" resulted in "arbitrary proceedings against prisoners. The reports and memoirs of former prisoners about their treatment in GDR prisons, which have been published after the `turning-point' [reunification], are deeply disturbing because of the inhumanity they document" (ibid). Up to this point, practices in GDR prisons seem analogous to those in this country, notwithstanding the emphasis on discipline and order (note: there is plenty of "inhumanity" in the history of American corrections too). The point of departure, however, is ideological: "Correctional education within the GDR was to a large extent also ideological education. According to section 26 of the Prison Act, measures of ideological training (e.g. participation in relevant lectures, discussion etc.) were obligatory for all prisoners. This approach was based on the simple-minded misconception that political-ideologically trained prisoners would commit no new offences" (ibid). Such was the naiveté of communism, which, according to theory, would eventually result in a world free of crime, and would thus have no need for prisons. If individuals committed crimes, it was due to inadequate education about the glories of socialism, something that prison was meant to correct. In fact, that was its overarching mission.
References
Arnold, Jorg and Johannes Feest. "Corrections in the German Democratic Republic: a field for research." British Journal of Criminology, Wntr 1995 v35 n1 p81-94.
Carlson, Peter M. "The Organization of the Institution." Prison and Jail Administration: Practice and Theory. Eds. Peter M. Carlson and Judith Simon Garrett. Gaithersburg, MD: Aspen, 1999.
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Juvenile Detention
This article by Steve Christian, "Out of lock-up: now what?", appears in State Legislatures, December 2003. It presents an overview of issues concerning the re-entry of juvenile offenders to the larger community, and what various states are doing to reduce recidivism. Efforts include such things as focusing on educational programs, promoting "engagement" (i.e. involvement in school, work, family, support groups, etc.), and a new kind of court--juvenile re-entry courts. Challenges to these efforts include budget cuts, hostile community environments (e.g. drugs, dysfunctional families), and what to do with serious, violent offenders.
According to the Justice Department about 100,000 youthful offenders are released every year, many of whom had drug or mental health problems. Since it costs about $135 per day to keep a juvenile incarcerated, reducing recidivism rates can result in tremendous savings (there's always a money angle). Although various states handle their releases in different ways, in the past surveillance and monitoring was favored over support. Now that's starting to change. California, for example, adopted an educational program called High-Risk Youth Education and Public Safety Program (1977), which aimed at keeping released young offenders in school, and was called "very successful" by the U.S. Department of Education. Similar efforts are part of recent national legislation: "Education for youthful offenders is a major emphasis of Title 1, Part D, of the No Child Left Behind Act, which provides about $48 million for children who are neglected, delinquent or at-risk. States must use between 15 percent and 30 percent of their grants to help young offenders get back in school successfully or get college or vocational training if they have graduated" (Christian, 2003, p. 21). According to a University of Oregon Study, a young offender who remained in the community for one year following release would almost never return to the system--in other words, virtually all recidivism occurred within 12 months. Thus the importance of "engagement," because "young offenders who had become 'engaged' in work or school immediately after release tended to stay out of trouble at much higher rates than those who did not" (ibid). Another innovation are juvenile re-entry courts: "Like drug courts, re-entry courts involve close collaboration among all participants, active involvement of the judge in the juvenile's progress, support and treatment services, frequent court appearances, and an array of rewards and penalties" (ibid). These things are also being set up for adults. The most significant factor in re-entry courts is close involvement by the judge. In many states, however, budget cuts are making it difficult to implement new and innovative youth programs, however successful. Weak support from families and the temptation of drugs are problematic as well. All states except Nebraska have applied for grants under the federal Serious and Violent Offender Re-Entry Initiative to assist in these efforts.
Programs that are more or less parallel to those in the U.S. are being tried in Canada (that dangerous power to the north)--specifically, the 2002 Youth Criminal Justice Act (YCJA) and the Young Offenders Act (YOA). The innovation here is an attempt to incorporate parents into the juvenile justice system, whereas before they had been virtually invisible--or worse, held liable for their children's criminal acts. According to Hillian and Reitsma-Street (2003, p.19), "Blaming parents is an expression of the faulty parenting paradigm, a set of ideas that children in trouble are the product of poor parenting and that both children and parents should be held accountable. This tendency to blame parents is now being manifested in parental responsibility laws, such as those passed in Manitoba and Ontario, allowing victims of property crime to take civil proceedings against the parents of young offenders...The 2001 Parental Responsibility Act of British Columbia, for instance, states that an individual or an insurance company can use small claims court to commence a civil action against a parent of a child who caused property loss. A parent must pay compensation up to $10,000 unless able to satisfy the court that reasonable supervision was exercised and destructive activity discouraged. The burden of proof is not on the state to prove parental negligence, but on the parent to prove s/he should not be held liable." One questions the efficacy of holding parents liable for the acts of their unruly youngsters; it's almost like the gun-control controversy: having no idea how to curtail violent crime, some insist on blaming the instrument of violence rather than the one who wields it. I am personally convinced that even the best of parents have little real control over their young (at least it was true for me as a teenager). Relieving the state of the burden of proving parental neglect and placing the burden on parents--to prove good parenting--is too much like requiring defendants prove their innocence. But the YCJA represents a new approach: "This community change approach assumes that youth and their parents are primarily neither rational individuals acting in their own best interests nor deviants in need of rehabilitation. Their choices, including decisions to commit crimes, are made in the context of current possibilities and historical constraints. Systemic changes are needed to promote the welfare of all youth and families, to stop violence, and to prevent crime. Parents and their communities are responsible for the care, supervision, and control of young people, and society is collectively responsible to ensure there are sufficient resources for raising healthy children and youth" (ibid). In other words, youth deviance does not necessarily transfer to parents, making them criminals as well. It is seen as a community-wide problem. For example, the prevalence of drugs--a major source youth crime--cannot be reasonably pinned on parents. It is a social ill, and as such the responsibility of society at large.
References
Christian, Steve. "Out of lock-up: now what? A large number of youthful offenders released from confinement end up back in the system. Helping kids re-enter the community can help them stay out of trouble and save states money." State Legislatures, Dec 2003 v29 i10 p21(3).
Hillian, Doug and Marge Reitsma-Street. "Parents and youth justice." Canadian Journal of Criminology and Criminal Justice, Jan 2003 v45 i1 p19(23).
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Bail Practices
The purpose of posting bail in criminal cases is simply to ensure that the accused shows up for trial; thus, when considering such things as how much the bail shall be or whether it should be granted at all, cannot be determined by the seriousness of the crime per se or the defendant's potential for further mischief after release. This has to do with the "presumption of innocence," since closely tying bail amounts to the type of accusation could be considered a presumption of guilt. None of the preceding is true in the absolute sense, of course, but that is the theoretical basis of bail and bonding. The various methods of securing pretrial release in other countries supports the theoretical aspect--Recognizance, Criminalization, Nonfinancial systems bolster the presumption of innocence, seeking the sole objective of having the accused appear in court as promised. The use of "commercial" bail in the United States seems appropriate to the entrepreneurial nature of this nation--the USA is all about making a buck!
Before we begin a discussion of the historical aspects of bail practices and procedures, it would be helpful to mention a few facts. First, there is no absolute right to bail or pretrial release. Some offenses are, by law, non-bailable, while others are bailable. This distinction is based on potential punishments for the crime one is accused of. In capital crimes that carry the death penalty or life incarceration, bail may be denied altogether. Second, bail is related to the legal concept of habeas corpus--the right of an accused not to be arbitrarily imprisoned without charges or some timetable for court proceedings. Third, the adoption of English common law traditions by the United States during its founding period has gone through a number of reform movements since the 1960s. For example, one commonly used method nowadays is release on recognizance (ROR), where a promise to appear in court is sufficient without posting bail. To better appreciate how these changes have come about and why, therefore, a historical perspective will be useful.
The Common Law Basis of Bail
American jurisprudence is a direct outgrowth of English common law, so let's briefly consider how pretrial release developed in English history. Prior to the 13th century pretrial release was at the discretion of local sheriffs--agents of the Crown. The tendency of some sheriffs to manipulate the situation to their own personal gain led to the 1275 Statute of Westminster, which eliminated their discretion as to which offenses were bailable. Bailable and non-bailable offenses were clearly listed and "[t]he sheriffs retained the authority to decide the amount of bail and to weigh all relevant factors to arrive at that amount" (1). They retained discretion, in other words, regarding how much bail should be required. The next reform occurred when Parliament passed the Petition of Right in 1628. This came as a result of King Charles I attempting to "shake down" noblemen for compulsory loans. Those who refused to "lend" the King money were imprisoned without bail. Accordingly, "[f]ive incarcerated knights filed a habeas corpus petition arguing that they could not be held indefinitely without trial or bail. The King would neither bail the prisoners nor inform them of any charges against them. The King's reason for keeping the charges secret was evident: the charges were illegal; the knights had no obligation to lend to the King. When the case was brought before the court, counsel for the knights argued that without a trial or conviction, the petitioners were being detained solely on the basis of an unsubstantiated and unstated accusation" (ibid). When the courts sided with the King, Parliament acted. The Petition of Right stated that the King's actions violated the Magna Carta, which prohibited imprisonment without due process, and held that "man could not be held before trial on the basis of an unspecific accusation" (ibid). The Petition did not circumvent the Statute of Westminster, however, and bailable versus non-bailable offenses remained as before. When king and court managed to evade the requirements of the Petition by endlessly delaying writs of habeas corpus, the Habeas Corpus Act of 1677 was passed. This act brought the use of habeas corpus to a state more or less recognizable to today's practice. Thus, "[b]y requiring early designation of the cause for arrest, the Habeas Corpus Act provided a suspect with knowledge that the alleged offense was either bailable or not" (ibid). It did not, however, protect against excessive bail requirements. If a commoner committed the crime of petty larceny and his bail was set at one million pounds, there might as well be no habeas corpus at all. This abuse resulted in the English Bill of Rights of 1689, which stated that "excessive bail ought not to be required," and accused the King of subverting the liberties of English citizens.
In colonial America some colonies wrote their own laws regarding pretrial release, while others simply guaranteed the rights of British citizens. This was no longer viable after the Revolution of 1776, so the states had to enact their particular statutes (still patterned after English law, however). For example, the clause in the Virginia Constitution which outlawed "excessive" bail was identical to the one in the English Bill of Rights (ibid), while the Virginia Constitution served as the model for the first ten amendments (called the Bill of Rights) to the new U.S. Constitution. And indeed, "[t]he Eighth Amendment in this Bill of Rights was taken virtually verbatim from Section 9 of the Virginia Constitution and provided that 'Excessive bail shall not be required...'" (ibid). It is interesting to note, therefore, that "[t]he Constitution merely guarantees that excessive bail may not be employed to hold suspects who by law are entitled to bail; similarly the Sixth Amendment enables prisoners to know if they are in fact entitled to bail under the law; it does not give them any right to bail already existing in the law. Thus, the legislature and not the constitution is the real framer of bail law; the Constitution upholds and protects against abuse of the system which the legislature creates. This principle was well understood by the Framers of the Bill of Rights. In fact, the same Congress that proposed the Eighth Amendment also formulated the fundamental bail statute that remained in force until 1966" (ibid). The Bill of Rights, passed on September 21, 1789 by the First Congress, was debated simultaneously as the Judiciary Act of 1789 (which created the federal court system), passed on September 29. What this means, fundamentally, is that the First Congress adopted the English system of tripartite protection against bail abuses: "The Eighth Amendment prohibition against excessive bail meant that bail may not be excessive in those cases where Congress has deemed it proper to permit bail. The Congress then enacted the Judiciary Act defining what offenses would be bailable. Habeas corpus protection was afforded by Article I of the Constitution" (ibid). It also means that the Eighth Amendment is not "self-executing," since it requires legislative acts to put it into effect.
Modern Bail Practices
The first major change in federal bail law since 1789 came with the Bail Reform Act of 1966. This legislation states that a non-capital defendant "shall...be ordered released pending trial on his personal recognizance" or on personal bond unless the judicial officer determines that these incentives will not adequately assure his appearance at trial. In that case, the judge must select the least restrictive alternative from a list of conditions designed to guarantee appearance" (ibid). The Act, evidently, was part of the general move in the '60s to enhance the rights of defendants, meaning that bail decisions were made solely for the purpose of ensuring court appearances. From this time, ROR began to be widely used. The liberal approach created another controversy, especially in the District of Columbia, when non-capital but nonetheless dangerous defendants, ROR or minimal bail, went on to commit further crimes. This resulted in the District of Columbia Court Reform and Criminal Procedure Act of 1970, which allowed judges to consider a non-capital defendant's "dangerousness" as well as potential flight risk when setting bail (ibid).
ROR is perhaps the most significant reform of pretrial release since it undercuts the punitive effects of arrest on indigent persons, but there are several contrasting methods employed by various jurisdictions. Types of financial release include a) full cash bond--in which the defendant posts the entire amount with the court. If he appears for trial, the money is refunded, if not, it is forfeited; b) deposit bond--in which the defendant posts a percentage of the bond (e.g. 10%). Upon FTA the whole bond comes due. Otherwise, part of the money may be kept for administrative costs; c) surety bond--in which a bail bond company signs a promissory note to the court and charges the defendant a non-refundable percentage (e.g. 10%). Upon FTA the bail bond company is liable for the whole amount; d) property bond--in which a defendant puts up collateral equal to the amount of the bond, which can be forfeited upon FTA. Types of nonfinancial release include e) unsecured bond--in which the defendant pays no money but is liable for the whole amount upon FTA; f) release on recognizance--in which the defendant promises to make all court appearances; g) citation release--in which the defendant is released on a written order of law enforcement officials; h) conditional release--in which the defendant is released under certain conditions and is usually supervised by a pretrial services agency; i) emergency release--in which the defendant is released by a court order placing limits on a jail population (2).
Regarding the pretrial services agencies, mentioned above, these assist the criminal justice system by gathering background information on defendants and making recommendations to the courts about what type of pretrial release, if any, is warranted. Of especial import is the pretrial release officer. According to Petee, "Officers in these programs interview criminal defendants who are scheduled to appear for arraignment; the officers gather information on residence, living arrangements, employment, and prior record. After the information gathered has been verified and a detailed record check has been conducted, the pretrial release officer makes recommendations to the presiding judge. These recommendations focus on the possible release of a defendant into the community prior to trial through some form of release on recognizance" (1994, p.375). In assessing the potential risks of releasing defendants ROR, certain statutorily defined criteria are used. These include a) living arrangements; b) employment; c) seriousness of the offense; d) criminal record; and e) prior FTA incidents. These criteria are typically arranged on a scale, using a point system (ibid). The resulting score becomes the basis of the officer's recommendation. It is important to understand, however, that the pretrial release officer's recommendation is just that--the judge has final discretion in the matter.
References
(1) http://www.bail.com/history.htm
(2) http://www.ojp.usdoj.gov/bjs/pub/ascii/nprp92.txt
Petee, Thomas A. "Recommended for release on recognizance: factors affecting pretrial release recommendations." The Journal of Social Psychology, June 1994 v134 n3 p375(8).
posted by Carl Miffleton | 5:59 AM
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