Legalizing Medical Marijuana Sales: Habits in the Shadow of the Law

(image courtesy Stichting Institute for Medical Marijuana in the Netherlands, at medicalmarijuana.org)

The reemergence of the marijuana legalization debate, which we covered earlier this week, has been invigorated by San Francisco Supervisor Ross Mirkarimi’s legislative proposal, under which the City’s Department of Public Health would distribute pot through city clinics. The argument, as so many other criminal justice related arguments these days, has shades of humonetarianism:
“We’re spending much more money keeping marijuana underground, trying to hide a fact that is occurring all around us,” Mirkarimi said. “Now is the time to take responsibility for something we’ve deflected to others and to test our ability to take responsibility.”
What is the legal stauts of medical marijuana in California? This informational webpage from the Department of Public Health explains is quite plainly. One can obtain marijuana from a licensed dispensary using a medical marijuana ID card. The card can be obtained at San Francisco General Hospital (incidentally, where UCSF scientists working with HIV patients found them unharmed by medical marijuana use). It costs $103, and requires some medical paperwork, or “an original letter from a medical provider stating that you have a serious medical condition where the use of medical marijuana is appropriate”.
(image courtesy Contra Costa Health Services)
Forging the card is a criminal offense, but some anecdotal evidence I collected this week suggests there’s no incentive to forge; getting medical recommendations is very easy, and several physicians in the Bay Area make their living exclusively from such recommendations. The relationship between the physicians and the dispensaries are much less straightforward. Patients who come to obtain a recommendation are not told the locations of the dispensaries. Not that it is a big secret that requires being “in the know”: the cannabis club directory is online.

However, matters are complicated by the fact that federal authorities do not recognize SB 420, which created the dispensaries. Therefore, despite its legal (albeit quiet) status in California, and oversight by the city, the feds still can (and do) raid dispensaries occasionally. The question is, therefore, whether dispensing the drug through the municipality would discourage the feds from paying attention to the market.

For a broader historical perspective on the marijuana market, I strongly recommend Eric Schlosser’s Reefer Madness: Sex, Drugs and Cheap Labor in the American Black Market.

The Process Is the Punishment: A 30-Year Retrospective

Prior to the 1960s and 1970s, most research on procedural justice in the criminal justice system focused on the Supreme Court. This is still the case, to some extent, in law review articles, which focus on watershed Supreme Court decisions to the exclusion of the courts that handle the bulk of everyday criminal cases. In the late 1960s, this trend started to change. Several classic studies on lower courts, focusing on plea bargaining, charging decisions, and public defense work, were published, challenging traditional notions of what a day in the courtroom “should” look like, and bringing to the forefront commonplace processes and events that the constitutional discourse kept hidden. Some of these included Milton Hewmann’s groundbreaking study of plea bargaining, an underwhelmingly discussed phenomenon in light of its prevalence; David Sudnow’s anatomy of plea bargaining based on stereotypization of cases according to their conformity to ideal types of “normal crimes”, and Eisenstein and Jacob’s analysis of felony case disposition. A major contribution to this literature was the classic award-winner The Process Is the Punishment: Handling Cases in a Lower Criminal Court, by my teacher, mentor, and friend, Malcolm Feeley.

In the book, Feeley provides an anatomy of the Court of Common Pleas in New Haven, Connecticut, analyzing its workings and processes from an organizational perspective. He comes to a (then) startling conclusion: The vast majority of defendants plead guilty. Virtually everyone foregoes his or her right to a jury trial. Judges, prosecutors, and defense attorneys, are jaded and overworked. Defense attorneys find themselves engaging in social work, rather than legal work. And, most important, the system generates powerful organizational incentives that push defendants to plead guilty, just so that they can avoid the process itself. Despite the fact that most defendants were not sent to jail, but rather had to pay fines, the process was so byzantine, unfathomable, and unpleasant, that most defendants did everything they could to avoid it. The concern about criminal stigma stemming from conviction was not as significant an incentive to insist on a jury trial; most defendants (disproportionally black and poor back in the 1970s as well) already had criminal records, and it was the daunting court process that they aimed to avoid.

Feeley’s findings were not meant to be entirely generalizable to other lower court settings. In fact, one of his main points was that justice could differ from one microcosm to another, and that each county had its own procedural personality, affected by the relationship between the court, the prosecution, and the defense, local politics, and the perception of heavy caseloads. Nevertheless, the main argument highlighted an important piece of the plea puzzle: a lower criminal court is more of a Middle Eastern bazaar than a sterile supermarket with prices neatly marked by every offense.

What has changed in the thirty years since the publication of Feeley’s classic? A great deal – and not a lot. The picture in terms of plea bargaining has not changed. The vast majority of defendants in lower courts still plead guilty. As the Department of Justice reports, 97 percent of all felony convictions within a year were obtained through a guilty plea (there are no misdemeanor cases on file). California statistics are difficult to obtain; databases are siloed in a way that makes it tricky to generalize, but some preliminary (albeit dated) numbers are available from the CA Attorney General’s office, suggesting similar trends.

Since 1979, incentives for plea bargaining have grown. The rise of determinate sentencing and of punitive sentencing schemes such as the Three Strikes Law has shifted the bulk of discretion from judges and parole boards to the hands of legislators and prosecutors, putting more bargaining chips on the criminal justice table. Rather than bargaining the sentence, the parties routinely bargain the charge, as well as a plethora of other provisions, such as whether the offense will be “counted” as a strike. We know (from Jeanne Woodford’s talk at the conference, and from John Pfaff’s study) that the majority of prison inmates are in prison for a very short time; it is not the length of sentence, but rather the volume of incomers, that is overcrowding California prisons and jails. Many of these are the product of plea bargaining in order to avoid much longer sentences.

This leads us to one significant change from 1979: sentences have gone up. In that sense, these days, the punishment is also punishment. It is not just process avoidance that leads defendants to plead guilty, though it may play a part in their decisionmaking process. The existing of more chips on the table, underscored by the war on drugs and by growing concerns about sex offenders, provides the prosecution with unprecedented power to enhance a sentence in multiple ways, and while these are not always used, they certainly impact the negotiation process in important ways.

Another important development is the fact that some processes are less punitive than they used to be. Problem-solving courts, community courts, and other specialized institutions have sprung and changed the landscape of criminal justice. Also, therapeutic justice is back, albeit for a small portion of cases concerning drugs and mental health. While there may be coercive and problematic elements in these specialized processes as well, the experience is to a large extent more benign than in the chaos of an ordinary criminal court.

There are important indications that, since the late 1970s, public defense has become more prevalent, and its quality has improved in many jurisdictions. These encouraging developments may be dampened by the distubring scarcity of resources for public defense, which we highlighted elsewhere.

The atmosphere of nepotism and political dealings within the court, which Feeley carefully examines in the book, may also have changed. Perhaps, as argued in Benjamin Smith’s interesting post at the Center for Court Innovation blog, Changing the Court, lower courts have become less parochial in their internal bureaucracies. However, it seems to me that the impact of politics on the process has become more pronounced at the higher, policymaking level. The mechanism that many conference speakers (particularly Mark Leno and Jonathan Simon), according to which politicians cannot afford to be “soft on crime”, is hugely influential precisely because of the rising effect that legislative discretion has on the bargaining process.

Finally, we should keep in mind that observing lower courts is a change catalyst in itself. Much of the changes occurring in bargaining and sentencing policies has been affected by increased public attention to the courts’ inner workings. In that sense, the “starship Enterprise” of courtroom observers can never really follow the “Prime Directive“: paying more attention to hidden phenomena, and bringing them to light through high-quality research, is an important enterprise in generating change. Newer generations of scholars, which have been raised on Feeley’s work, are indebted to the groundbreaking work of the 1970s, which is still a model of classic meticulous ethnography, and which is a continuing inspiration for courtroom research.

Humonetarianism in Action: Fiscal Arguments in Support of Regulating Marijuana

It’s Deja Vu All Over Again.

The long discussion on regulating marijuana is back, as the Chronicle reports today. Except this time, true to the spirit of Humonetarianism, much of the discussion focuses on finances and costs.

Experts say an unprecedented confluence of factors might finally be driving a change on a topic once seen as politically too hot to handle.

Among them: the recession-fueled need for more public revenue, increased calls to redirect scarce law enforcement, court and prison resources, and a growing desire to declaw powerful and violent Mexican drug cartels. Also in the mix is a public opinion shift driven by a generation of Baby Boomers, combined with some new high-profile calls for legislation – including some well-known conservative voices joining with liberals.

Leading conservatives like former Secretary of State George Shultz and the late economist Milton Friedman years ago called for legalization and a change in the strategy in the war on drugs. This year mainstream pundits like Fox News’ Glenn Beck and CNN’s Jack Cafferty have publicly questioned the billions spent each year fighting the endless war against drugs and to suggest it now makes more financial and social sense to tax and regulate marijuana.

This is not a new discussion, of course. As some readers probably know, marijuana prohibition has not been with us forever. Scholars who have researched the history of drug criminalization, such as Troy Duster, trace it back to clashes between economic interests, as well as to demonization and oppression of minorities. In fact, the first U.S. law to criminalize drugs – the Harrison Narcotics Act of 1914 – focused on regulating taxation and licensing for drug purveyors and on protecting the medical profession, rather than on blanket prohibitions. Duster argues that it is no coincidence that substances used by middle-class whites, such as barbiturates, were left out of the criminalization frenzy, while marijuana (linked to Mexicans), heroin (linked to Blacks), and opiates (linked to the Chinese) became outlawed.

So, there’s nothing given, or immutable, about our prohibition of drugs. Well, is it a good idea? That is a very complex question, since we could think of quite a variety of legalizing/regulating regimes to implement. In their wonderful book Drug War Heresies, Rob MacCoun and Peter Reuter examine a series of drug policies from all over the world and show that each system has advantages and drawbacks. They also highlight the political and economic hurdles to implementing sensible drug policies. Another interesting resource is this cool and well-articulated economic analysis by Andrew Clark from DELTA, who argues that any cost/benefit based analysis of regulating the drug market has to take into account the importance we ascribe to externalities, such as crime and ill health. Jeffrey Miron from Boston University argues that decriminalization will have little impact on marijuana use, and believes that decriminalization might affect other legal provisions, such as eliminating or relaxing the reliance on drug testing to determine parole violations.

We should keep in mind, though, two important things pertaining to the California situation: First, California has already effectively decriminalized small amounts of marijuana, although, as Rob MacCoun brilliantly proves in a new piece, not many people know that. And second, there is a permit system for medical marijuana operating according to CA laws (albeit in defiance of Federal laws).*

One of the things I like about the resurfacing of the marijuana regulation debate is that, probably for the first time, public discourse is attentive to the big picture. As became clear at the CCC conference, a major problem in addressing correctional policy is the disconnect between lawmaking and correctional implementation; lawmakers do not feel the harms and costs that are later born by those subjected to the correctional apparatus, and as humonetarians argue, by those picking up the tab. It’s nice that the prison overcrowding issue has made it to the forefront of the marijuana debate.

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*This it fascinating, complicated, messy, and merits discussion far beyond this framework.

Being a Lever in a Dark Place

Citizen Hope assembled a fascinating panel on Tuesday night at Hastings for a “Conversation on Re-Entry.” The conversation’s starting point was recidivism and re-entry, and San Francisco District Attorney Kamala Harris began by described several of her initiatives aimed at combating recidivism. “Back on Track” targets young (18-30) nonviolent first-time offenders, allowing them, after they’re arrested, to opt into a training program in lieu of an entry of judgment. “Back on Track” participants must have a job or be in college in order to graduate, and the program works “across agencies” to achieve this, bringing together the Housing Department, Child and Family Services, Health and Human Services, the DA, PD, and Court. 

The program is still in its nascence, and so there are lots of questions about its efficacy: is it scalable? Right now it targets a population that self-selected to succeed (if a participant makes any missteps, he is sent back into the regular criminal justice process.) But it’s an important policy innovation because it reflects a growing understanding of how connected recidivism and re-integration are with problems like joblessness and inadequate access to services. 

Harris herself represents another important kind of policy innovation, though, a theme which she sounded as she explained her decision to become a prosecutor, rather than following the more traditional path of the civil rights advocate to the public defender’s office. In lots of counties, programs like “Back on Track” never get started because the District Attorney, with his eye on his conviction record for the next election, doesn’t want to cooperate in a program that takes people out of the normal channels of criminal process. People like Harris are important because they are willing to reconceive their roles and the set of incentives and constraints that define them. Conviction records aren’t the only way to show you’re doing a good job as a law enforcement officer – indeed, they may be a remarkably bad indicator of whether you’re improving public safety. 

Panelist Lateefah Simon echoed this theme towards the end of the evening. Simon, who worked for Harris for four years in the DA’s office, and has a powerful way with words, exhorted the audience of law students and community members to become “a lever in a dark place.” In other words, if a system is the cumulative effect of many little decisions made by people in the course of their routines, then a shift in the kinds of experiences and perspectives those people are considering as they go about their jobs can have a huge impact on the success and widespread expansion of a program like “Back on Track.”

Citizen Hope is a social networking organization focused on political activism. The panel featured SF DA Kamala Harris, Jakada Imani, executive director of the Ella Baker Center for Human Rights, Jessica Flintoff, program coordinator of the Safe Communities Reentry Council, Lateefah Simon, executive director of the Lawyers Committee for Civil Rights, and moderator Steve Ngo of the San Francisco Community College Board. 

Chronicle’s Nevius: An Unlikely Supporter for the Community Justice Center

This morning’s Chron includes an article by C. W. Nevius, reporting about yesterday evening’s Community Justice Center informational meeting at Glide Memorial Church. His description of the meeting depicts a typical San Francisco scenario: people with different agendas speaking past each other, not to each other, thinking how to shoot down a project without understanding what it is about.

The real failing is that the backers of the court haven’t convinced the neighborhood that the effort is worthwhile.

Instead, at the meeting there were accusations that the Community Justice Center is part of a plan to rid the Tenderloin of poor people, build tall luxury apartment buildings, and encourage the police to arrest anyone on the street who looks shabby.

“It’s just the opposite,” sputtered Superior Court Judge Harold Kahn, who is presiding over the Justice Center this week while Commissioner Ron Albers is on vacation. “There is not a single case charged here that wouldn’t have been charged at the Hall of Justice. The difference is, here they can go upstairs and qualify for services.”

The court’s director, Tomiquia Moss, was stressing that the court had heard more than 100 cases, and that they’d gotten 40 individuals into services, such as drug and alcohol treatment.

“And as far as this huge conspiracy to wrangle the poor out of the neighborhood,” Moss said, “I really disagree with that.”

Not that anyone from the opposition was listening. Activists wanted to know what the court was doing to end homelessness and why the money for the court – most of which comes from federal grants and can’t be used for other purposes – isn’t being used for building more shelters and housing.

Oh Boy.

The fact is, the people behind the Community Justice Center – people like Moss, Albers and the myriad social workers – have long and distinguished records of helping the homeless. So how did they get to be the enemy?

“I think people expect that there is never going to be a solution,” Moss said. “So they keep complaining.”

Now, it may be that the court won’t ultimately work. It is just a pilot program. But I can tell you this – simply complaining is a dead end.

I’ve been following Nevius’ commentary on the situation in the Tenderloin for quite a while, and I often disagree with him; when he reported about a homeless man found dead in the San Francisco public library, and linked this tragedy to his defense attorneys successfully battling his quality-of-life offense citations, I fumed for days. But this time, I think, he is right on the money. Nevius understands something that strikes me as very basic: If you have to choose between appearing more-righteous-than-thou and doing the right thing, it’s a no-brainer. One of the regrettable features of our City politics (which are admirable in many other ways) is that, in this kind of debate, too many invariably opt for the former, even before obtaining enough information to make the choice. The conversation stops being about the issue at hand, and becomes an absurd contest of who is more enlightened and whose conspiracy theories are more extreme.

I constantly worry about criminalizing poverty, and am well aware of the many ways in which we do it every day. And, yes, in our flawed system, and within the constraints of a very imperfect social structure, there is a whole host of criminal offenses that act as proxy for social class (and, in many cases, race). However, rallying against people who are trying to make the situation better within this imperfect social structure, I believe, will not change matters. I would really like us to give this experiment a real shot before knee-jerk politics kick in and shoot down the efforts of people who are genuinely trying to do good and who have the qualifications and authority to do so.

“A Conversation on Reentry”, Tue, April 7, at UC Hastings


This is a bit last-minute, but for those of you in San Francisco or the Bay Area, it seems very worth attending: CitizenHope, with a host of Hastings student organizations, is offering “A Conversation on Reentry”: Making Rehabilitation an Essential Part of Public Safety Policy, featuring Kamala Harris, Jakada Imani, Jessica Flintoft, and Lateefah Simon.

Where: UC Hastings, 200 McAllister (2nd floor); a one-block walk from the Civic Center BART station
When: Tuesday, April 7 (tomorrow!), 6-8pm

The event will be followed by a reception at the nearby Soluna Cafe.

California Prison Mental Health – A Failed Delivery System

I have just received the following email from a reader, who introduces him/herself as “a concerned prison mental health clinician” and who prefers to remain anonymous. I am publishing it verbatim.

A suicidal inmate with a diagnosis of Major Depression with Psychosis is handcuffed for up to three hours before he is transferred to a crisis bed.
A correctional officer yells out “you are full of it” to an inmate who requests permission to return to his cell from the yard, because he says he feels that “people are watching him, and he is feeling paranoid.” This inmate has a diagnosis of Schizophrenia, Paranoid Type.
A correctional counselor (CC) says to an inmate diagnosed with rapid cycling bipolar disorder, “you are just a con, you were up and about yesterday, I saw you, and today you won’t come out of your cell.”
A psych tech refuses repeated requests of an inmate to see a psychiatrist, for nearly three weeks, this inmate suffered from racing, and obsessive thoughts – because this psych tech decided that the inmate was “playing.” This inmate is diagnosed with Obsessive Compulsive Disorder.
A mental health clinical supervisor says to his clinical team, that these are all criminals, and they know what to say.
A sergeant in response to an inmate yelling at the TV (because he believes that the TV is talking to him) decides to “clean out his cell” because inmates are not allowed to yell.

These are just a few examples from just one week at a California correctional facility that is supposed to be complying with the Mental Health Service Delivery System, based on the Coleman v. Schwarzenegger decisions. The current prison mental health system is one horror story after another, and here we are talking not about “general population,” but about units that are supposed to specialize in providing mental health treatment.

There are many reasons for this, but primarily it has to do with the way prisons are designed, and the custody culture, that, for the most part, does not consider mental illness to be legitimate. The misperceptions, and stigma that exists in the larger society is hugely magnified inside a prison. Further, the custody staff, and even some of the clinical administration staff do not seem to understand mental health treatment, and the course of recovery.

An example of this stigma, and lack of understanding about mental health treatment is the statement by Department of Corrections and Rehabilitation Secretary Matt Cate:
“… We don’t need a treatment room and a yoga room and a music room and a basketball court for our most seriously ill inmates — we need to get those inmates better so they can return to the general population.” From Oakland Tribune by Josh Richman, February 3, 2009

Fact is that most of those with serious mental illness are not going to return to the “general population.” Most of the tens of thousands of seriously mentally ill inmates, if in the community, would qualify for disability (SSI) and would only be expected to work part-time at the very most. They would be living in supportive housing, such as licensed board and care facilities, or supported independent living, with onsite case management. The prison general population is a very high stress environment, and many of the mentally ill inmates would decompensate, and end up being hospitalized, or in crisis within a matter of weeks, if not days.

I was heartened to read by U.S. District Judge Lawrence Karlton’s statement that he is considering placing the mental health services also under a receivership. CDCR does not have the capacity, or understanding to provide effective mental health care. Their role is custody, not mental health treatment.

With 40-50% of California inmates seriously mentally ill, we need to enter into a process of rethinking, and redesigning prison mental health treatment. A few recommendations/suggestions that I, as a prison mental health clinician, have are as follows:

1. Under a future receiver’s office create a clinical oversight body within each prison-institution, comprising of both administrative and line clinical staff (psychiatrists, clinical psychologists, and clinical social workers) that would be charged with addressing clinical/treatment issues and obstacles.

2. Recognize that with such high numbers of seriously mentally ill inmates, prisons are effectively locked mental health institutions. The custody staff must re-think their roles as security, and mental health providers. Develop a new classification of “mental health custody” that would specialize in working within mental health units. A very small number of custody staff do have this kind of specialization, and where we have such staff, the units operate smoothly, and some level of mental health services are delivered. Where we do not have this level training, and/or interest, the services are spotty at best – and that would be the case in the vast majority of cases.

3. Begin developing a separate agency outside of the CDCR that would be charged with providing mental health services. This agency would then be held accountable for standards and practices, and would relieve the CDCR from trying to implement services that are outside of its custody role and scope.

4. Mental Health services in prison should be held at the same, or higher level of standard as those delivered in the community in California. This would include confidentiality, and clear protection against abusive or stigmatizing treatment.

5. And finally, but no means least, construct new facilities designed to provide mental health care.

The above recommendations are by no means exhaustive, but we need a public open conversation, and implementation of mental health treatment at the same time. We cannot continue to wait, while the civil and constitutional rights of California prisoners are violated daily. Such stigmatizing treatment would not be tolerated in the community, and there is no reason why such abuse is being tolerated in prisons.

It is time to take mental health out of the hands of the an incompetent state body, and placed in the hands of mental health receivership who would have the necessary mental health background to implement immediate change to the delivery system.

What Works? A Search for Evidence-Based Corrections

In 1974, the world of corrections was quite different from the grim realities we have been discussing here over the last few months. The sentencing system was indeterminate, and the release date of inmates was mostly in the hands of the parole board. Those who grew up with the determinate system adopted in the late 1970s and early 1980s may recall the depiction of this system in The Shawshank Redemption.

Since sentencing was seen as an individualized, offender-based enterprise (as opposed to the administration of guilt, which was based on  completion of the elements of the offense), the main criterion for release was “rehabilitation”, that is, establishing that the inmate had been reformed and was no longer a threat to public safety. Prisons had a variety of rehabilitative programs, though many of these, as depicted in the movie, were farcical fronts for the economic enterprise. The move to a system relying on determinate sentences, giving prosecutors and legislators more power than judges and parole boards, was the outcome of a new discourse, which (among other things) discredited the rehabilitative value of prison programs.

This discourse was impacted in a major day by Robert Martinson’s meta-study What Works? Questions and Answers About Prison Reform, which was published on The Public Interest. In the study, Martinson examined the recidivism rates of 600 prison programs, as examined by other studies, and came to the conclusion that there is —

very little reason to hope that we have in fact found a sure way for reducing recidivism through rehabilitation. This is not to say that we did not find instances of success or partial success; it is only to say that these instances have been isolated, producing no clear pattern to indicate the efficacy of any particular method of treatment. 

Martinson’s results, later confirmed by a review by a National Academy of Science panel, were devastating to the rehabilitative enterprise, and lent scientific credibility to the critique against indeterminate sentencing. While later studies have criticized some of Martinson’s methodology, Martinson provided an invaluable service to us all. As David Farabee argues, there was a broader lesson in all this, which is not different in essence from the important words Harold Atkins said in our opening panel: it is not enough to come up with a rehabilitative program. We have to know that it works.
Newer works in the last few years have come to more optimistic conclusions about rehabilitative programs in prison. Check out, for example, Rick Sarre’s excellent conference paper, pointing to newer meta-studies that found more programs that ‘work’. However, we have to keep in mind, as Doris MacKenzie reminds us, that these programs differ greatly from each other in terms of their underlying philosophies (boot camps are different from drug courts!), and some of them are more suitable than others for certain types of crimes or groups of offenders.  
If Jim Webb’s efforts to create a criminal justice commission, or the important work done in places like the Center for Evidence-Based Corrections, come to fruition, one important question it will have to answer is, how do we measure what works? What indexes of success might we have beyond recidivism measures? And, are we to stick to one penological philosophy, or are we willing to accept that different things “work” for different people? what do you think?

Secretary Cate: Seeking Prison Expansion

The Associated Press reports that Secretary Cate plans to ask state legislators to expand three prisons.

The construction projects would be the first to draw money from a nearly $8 billion bond measure approved two years ago. The money was stalled, though, until Gov. Arnold Schwarzenegger signed the state budget into law in February.

Corrections Secretary Matthew Cate said he plans to seek approval within weeks to build more cellblocks at two prisons near Delano and to convert a juvenile lockup near Paso Robles. Those moves combined would house 2,800 inmates.

The $810 million Cate will seek from legislative budget committees would pay for those three expansions, plus building a re-entry center in Stockton for 500 inmates who are nearing the end of their prison terms. It would be the first of several planned regional re-entry centers to help inmates adjust in the months before they are paroled.

(this was one of the urgent projects seeking approval and financed by bonds approved in 2007, per the L.A. Times)

(and another aspect of the whole thing: prison construction is regarded as one way to generate construction jobs. One person’s problem is another’s salvation).

I have no doubt that prison authorities are sincere in regarding prison expansion as a viable way to reduce overcrowding; however, I can’t help but think about conversations I’ve had with my father, a transport planner, who often marvels at how new roads built to relieve congestion generate incentives to buy more cars, thus increasing traffic. I know the metaphor is not perfect, but it has been preying on my mind.

A Risk-Assessment Model from a Blog Reader

(all images by Tom McGee; click on graphics for clearer, larger image)

One of our readers, Thomas McGee, who worked for many years in the Youth Authority, has given some serious consideration to questions of risk assessment associated with issues such as the Lovell Mixon case. He writes:

Thank you for your blog, California Correctional Crisis. Your posts have been especially helpful.

I am sending this email, rather than posting a comment, because I wanted to enclose an attachment, which was prepared using Excel. It is a chart depicting a proposed Deprivation Decision-Making System. I believe that sentencing should be put in this broader context. You will see that it makes provision for both determinate and indeterminate courses of action. The Mixon matter you have been writing about is a good example of why something like this is necessary. Of course, I do not have access to his case history, but since he was classified as a high-control parolee, there must have been evidence that he was a high risk. Under the system I propose, Mr. Mixon would have completed the accountability part of his Deprivation Plan. But he would not have been moved to a lower level of restraint, because he had a high level of risk.
I know that risk determinations are contentious, but risk is a fact of life. Insurance companies deal with it all the time. It is not possible to predict with complete certain ty who will commit another crime, or what kind. But it is possible to estimate the probability that a person will recidivate,within a probability range. Policy makers have to decide how much risk is acceptable. If risk determinations do not reach a legally acceptable standard, then lets say so and act accordingly, rather than hiding this in some kind of sentencing double-talk.
Just one more point; I think it is ridiculous to ask judges to consider risk at the time of sentencing. Risk changes. Who can say today what an offender’s risk will be five years from now. A Risk Control Board should make periodic risk determinations of this kind. Parole Boards as we knowthem are not equipped for this task.

I would appreciate any comments you may have about the enclosure, and these comments. Again, thanks for the blog.

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One of the interesting things about Tom’s model is that it incorporates quite a multifaceted perspective on offenders and their motivations. One key dilemma in modeling and predicting human behavior has to do with the difficult trade-off between accuracy and simplicity. That is, the more complex the model is , the more accurately it can predict risk, but the more difficult it will be to apply. More on this in future posts.