The Community Justice Center and Recidivism Studies

(image by Lea Suzuki, courtesy the Chronicle)

Our point of departure is a new article by the Chron’s Will Kane, which has great news for the Community Justice Center fans. The court continues to operate, closely supervise the progress of its defendants, and assign them to helpful mental health, vocational, and addiction-related programs.

Two years after a bitter fight over its creation, more than 3,200 people have come before the court, which is now lauded by its early critics. Unlike jail, supporters say, the program gives San Francisco’s underserved residents the support they need to clean up and avoid trouble.

“Those are things we can do faster than most and do more effectively than most,” said Commissioner Everett Hewlett Jr., who has overseen the court since January.

Each day, Hewlett hears from as many as 75 people such as Hicks who have agreed to enter the center’s program. Seventy percent of program participants have abused drugs or alcohol, and 36 percent are homeless. An additional 38 percent live in residential hotels.

Two questions remain unanswered in the article. The first is whether the Public Defender’s Office, once a staunch antagonist of the CJC (and of problem-solving courts in general), has come around (I hope it has). The other one, which will occupy us today, is whether any research team is following the defendants after their involvement with the court ends, so that recidivism can be measured.

A few words about recidivism studies: Merely following the defendants and calculating their recidivism rates is not enough. Whenever presented with recidivism rates, unless the rates are zero, the question is, “compared to what?”. Different offenses and offenders have different recidivism rates, and if a program is measured for its success, it has to be compared to the alternative — in this case, an ordinary criminal process.

The ideal time to have started a project like this would have been when the court was operating under a pilot model, because then many defendants committing comparable offenses were being sent to the Hall of Justice. Of course, the best setting for such a thing would be random allocation of defendants to the CJC and the Hall of Justice, but I hardly need to explain why that would be extremely problematic from an ethics perspective; while random allocation creates a natural experiment that is good for science, it is ethically questionable to condition people’s fate upon their random allocation to this proceeding or the other (which is not to say that there aren’t research teams doing it out there). But even if such random allocation is impossible or undesirable, you still want to match the experiment group, CJC clients, to a control group of criminally-processed people. As Mark Mitchell and Janina Jolley explain so well in their book Research Design Explained, matched pairs technique requires rigorous adherence to detail, because each member of the experiment group needs to be matched to a member of the control group in terms of all the important variables. In our case, the fact that people voluntarily decide whether to go to the CJC or to trial is a problem. The matching should take into account not only information about the offense (severity, circumstances, type) and the offender (demographics, criminal history) but also the proceeding. Are people who opt for the Hall of Justice for a jury trial different in an important way to people who opt for the CJC? They probably are, in important ways. This is a very difficult thing to do, and the critique is often that matching is not perfect because this variable or another was not taken into account. The statistical test for matched pairs comparison assumes that the pairing was effective and rigorously done. There are some ways to control for this, but they are not perfect.

Nevertheless, following up on the recidivism rates of CJC graduates will provide helpful information, because it will at least allow some comparisons to the general recidivism rates, or to similar studies done in comparable cities. If such a study is currently being done that the CCC blog does not know about, I invite the CJC personnel or the research team to tell us about their design and progress.

Kentucky reforming drug sentences (?!)

So apparently the state of Kentucky is debating legislation to reduce prison sentences and increase diversion for drug convictions. Today’s Lexington Herald-Leader has a detailed, well-written, very informative article about the bill, which was presented Tuesday by members of a special drug-specific sentencing committee called the Task Force on the Penal Code and Controlled Substances Act. Please read the whole thing here, but my favorite passage is:

“The bill would establish a penalty of “presumptive probation” for some lesser offenses, such as drug possession, requiring judges to sentence defendants to probation rather than prison unless the judges can state a compelling reason to do otherwise. It also would require addiction treatment for those convicted of drug possession.

Marijuana possession would drop from a Class A misdemeanor, with a penalty of up to a year in jail, to a Class B misdemeanor, with a maximum jail term of 45 days, if the judge ordered incarceration at all.”

Street Offense Citation Enforcement: Do We Need Sit/Lie?

Today’s Chron’s print edition included a piece by C.W. Nevius providing data on the enforcement of street offenses in San Francisco. As debate proceeds on the sit/lie ordinance, which we discussed here and here, it is interesting to see how little difference it makes whether citizens are cited for various sidewalk offenses. According to the data in the story (to which we will link on Tuesday, when it goes online), only about 10 out of 330 fines for street citations issued this summer were actually paid in full. A large percentage of cases got dismissed, either through the regular channels or as part of a treatment plan with the Community Justice Center.

Nevius, apparently, is trying to make the point that the current municipal code is proving ineffective in regulating street behavior. However, I think the lesson to be learned from the data is quite the opposite. It appears that criminalization has not been a stellar answer to making out sidewalks more pleasant. And it appears that the citation recipients are not a good target audience for revenue enhancement.

Perhaps the answer to the problem lies in a mild version of Broken Windows Theory. As a broad zero-tolerance policy, leading to mass incarceration, it has hardly proven effective in controlling crime (my colleagues Bernard Harcourt and Jens Ludwig make a convincing argument to this effect). However, when limited to the issue of environmental maintenance and discouragement of disorder through grooming and beautifying public space, it may be the ticket to the reduction of street sidewalk unpleasantness.

As an aside, one of the protests designed to combat the new ordinance is a mass lemonade sale on city sidewalk this coming Saturday. As Emma Goldman would put it, a revolution without dancing (and lemonade sipping) is not a revolution worth having.

Humonetarianism in Sentencing: Missouri Judges Consider Prison Costs

This is a new development with humonetarianism: Judges taking punishment costs into account while sentencing. The New York Times reports:

Months ago, members of the Missouri Sentencing Advisory Commission, a group of lawyers, judges and others established by state lawmakers years ago, voted to begin providing judges with cost information on individual cases.

. . .

The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.

I strongly recommend reading the full piece. It is rather astonishing that prosecutors object to providing judges with such data. Why should decision makers not be aware of the fiscal implications of their decisions? And, if there is no software to provide such data, what is there to stop inquisitive judges from finding this information out on their own? Moreover, it is not as if judges do not factor in social costs at present; it would hardly appear unseemly for judges to consider the impact someone’s sentence might have on, say, public safety, or public opinion. What makes the public wallet any different?

Obama backing off strict crime policy

[Re-posted from POLITICO because: can you imagine replacing “Obama” with “Schwarzenegger” in this article? Nope, me neither, but it feels good to think about it…]

Obama backing off strict crime policy
by Josh Gerstein

For years, it was one of the GOP’s most potent political epithets — labeling a Democrat “soft on crime.”

But the Obama White House has taken the first steps in decades to move away from a strict lock-‘em-up mentality on crime — easing sentences for crack cocaine possession, launching a top-to-bottom review of sentencing policies and even sounding open to reviewing guidelines that call for lengthy prison terms for people convicted of child pornography offenses.

The moves — still tentative, to be sure — suggest that President Barack Obama’s aides are betting that the issue has lost some of its punch with voters more worried about terrorism and recession. In one measure of the new political climate surrounding the issue, the Obama administration actually felt free to boast that the new crack-sentencing bill would go easier on some drug criminals.

“The Fair Sentencing Act marks the first time in 40 years that Congress has reduced a mandatory minimum sentence,” said White House drug czar Gil Kerlikowske, who billed the new legislation as “monumental.”

Obama’s signing of long-debated legislation last month to reduce the disparity between prison sentences for crack and powdered cocaine is being hailed by some advocates as a watershed moment in the nation’s approach to criminal justice.

And even with a tough election looming, the Democratic Congress is showing a willingness to consider moving away from incarceration and toward rehabilitation and out-of-prison punishments that might have been attacked in the 1990s as the coddling of criminals.

At the urging of a conservative Democrat, Sen. Jim Webb of Virginia , the House passed a bill in July to create a federal commission to study criminal sentences. The measure cleared the Senate Judiciary Committee earlier in the year with little resistance from Republicans.

“I think the political landscape around the issue is shifting and I think that will provide room for the administration to address some of these issues,” said Jennifer Bellamy of the American Civil Liberties Union.

Advocates point to several reasons for the shift toward a less-draconian approach to crime and for its retreat as a hot-button political issue. Crime rates are at some of the lowest levels in a generation. Stories of offenders who got decades behind bars for playing minor roles in drug operations have generated some sympathy in the public. Huge budget woes facing states and the federal government are raising doubts about policies that are causing prison populations and costs to go up.

In addition, Republicans who once accused Democrats of being soft on crime now accuse them of being soft on terrorists. As a result, tinkering with the way run-of-the-mill criminals are treated doesn’t seem to be the political third rail it once was.

Mary Price of Families Against Mandatory Minimums noted that the crack-disparity bill passed in Congress with remarkably little consternation. “I think other concerns have crowded out some of the hysteria around crime,” Price said.

“Republicans could have said, ‘If this passes, we’ll make this an issue in the midterms.’ Nobody said that,” Price observed. “This was not an issue for Republicans.”

While most of the Obama administration’s moves toward rolling back some of the harshest aspects of the war on crime have been tentative, some have been surprising. For instance, a little-noticed letter issued by the Justice Department in June urged a federal commission to review the sentencing guidelines for child pornography offenses — a review that many advocates say would almost certainly result in lowering the recommended sentences in such cases.

“They’re saying, essentially, that they want to level sentences in the middle, but necessarily, leveling in the middle is almost demanding that they bring the guidelines down,” said Doug Berman, a law professor at Ohio State University. “They’ve chosen language … saying we’re open to doing something that is not entirely tough.”

In another sign of the new climate, Attorney General Eric Holder announced a review of criminal sentencing policies soon after he came into office.

“Too much time has passed, too many people have been treated in a disparate manner and too many of our citizens have come to have doubts about our criminal justice system,” Holder said in June 2009. “We must be honest with each other and have the courage to ask difficult questions of ourselves and our system. We must break out of the old and tired partisan stances that have stood in the way of needed progress and reform. We have a moment in time that must be seized.”

The internal review endorsed lowering some crack sentences, something Obama had already promised to do, and publicly offered some vague suggestions on changes to mandatory minimums. Holder also issued a memo giving local federal prosecutors a bit more autonomy in charging decisions.

Another result of that review was a June letter that called for a new look at child porn sentences.

“The time is ripe for evaluating the current guidelines and considering whether reforms are warranted,” Jonathan Wroblewski, director of the Justice Department’s Office of Policy and Legislation, wrote to former judge and FBI director Bill Sessions, who heads the U.S. Sentencing Commission. “Consideration ought to be given to updating many aspects of the child pornography sentencing guidelines to better calibrate the severity and culpability of defendants’ criminal conduct with the applicable guideline sentencing ranges.”

Justice’s call for a review came as defense attorneys have been gaining traction with arguments that the guidelines and mandatory minimums set by Congress call for excessively long sentences. Some lawyers contend that defendants who briefly exchange child porn photos or video online can actually get longer sentences than those who seek to molest children.

The Justice Department has disputed those arguments in court, but federal judges have increasingly given sentences below the guidelines. An assistant federal public defender from Missouri , Troy Stabenow, said he thinks the department’s decision is basically a tactical move to stem the slide towards lower sentences.

“It’s just the logical thing they needed to do,” said Stabenow. He said the notion that any politician would wade into the subject on his own volition boggles the mind.

“I would think no sane politician who values being reelected would want to engage in this area,” Stabenow said. “I don’t think there’s any criminal group that yields a more visceral response than the child pornography group.”

A Justice Department spokeswoman stressed that the June letter didn’t endorse higher or lower sentences for child pornography.

“We asked the sentencing commission to comprehensively review and report on the state of federal sentencing and to explore whether systemic reforms are needed,” Justice spokeswoman Laura Sweeney said. “We also asked the commission to review the guidelines for child exploitation and fraud offenses, but did not recommend necessarily higher or lower penalties for either child exploitation [or] fraud offenses.”

One prominent advocate for long sentences in child pornography cases, Ernie Allen of the National Center for Missing and Exploited Children, said he welcomes a review of the guidelines and why judges are often giving lower sentences. However, he said he would oppose any overall reduction in the guidelines and does not think that’s what Justice officials want.

“If that is the implication, clearly, we would differ with that,” Allen said. “These are crime scene photos that re-victimize the child in the photo over and over again, [but] I think both of us recognize that the crime guidelines are dated.”

Despite the tentative moves in the direction of lessening some sentences, there remain numerous signs that Obama and his aides recognize that the issue could still be politically damaging.

When Obama signed the crack disparity bill, only still photographers were allowed in and the president issued no formal statement. The Justice Department’s sentencing review group has indicated it has no plan to issue a formal report that could become a political football. And, 18 months into his presidency, Obama has yet to issue a single commutation or even a pardon to an elderly ex-con seeking to clear his record.

Some advocates note that the crack sentencing bill was not particularly ambitious: it reduced the crack/powder disparity from 100-to-1 to 18-to-1. And it wasn’t retroactive, so some who were sentenced under mandatory minimum laws may not benefit.

Asked whether Obama might grant requests to commute the sentences of those who would have gotten less punishment if they committed their crimes today, an administration official said the crack-disparity bill “reflected Congress’s judgment that the law should not be retroactive, [and] the president believes that the Fair Sentencing Act will go a long way toward ensuring that our sentencing laws are tough, consistent and fair.”

The official also downplayed the notion that Obama might offer some kind of blanket clemency for earlier crack-cocaine offenders, saying that “as a general matter, the president agrees with the Department of Justice’s long-held view that commutation is an extraordinary remedy that should only be granted in extraordinary circumstances.”

But activists are watching Obama on the issue. “Retroactivity will be the next battle,” Price said. “It would be cruelly ironic for us to take lessons learned from those who are currently serving, change the law for people going forward and then say, ‘OK, the accident of the calendar you are condemned to serve much longer than people who, because of your experience, are getting out sooner.’”

In the heat of the presidential campaign, Obama sent mixed signals on crime. In the primary, he differed with Hillary Clinton by endorsing shortened sentences for some crack offenders already in jail. As the general election neared, he tacked to the right of the Supreme Court by criticizing the court’s 5-4 decision barring the use of the death penalty for child rapists who don’t kill their victims.

Berman said he thinks Obama and his aides can’t fully break with President Bill Clinton’s approach of trying to look as tough or even tougher than Republicans on crime.

“Obama wants to do something, I think, big on criminal justice and I think he’s absolutely afraid to,” Berman said. “Democrats are right to continue to fear tough-on-crime demagoguery. The lessons of Clinton continues to resonate. … This really is, inevitably, low-priority, high-risk kind of stuff.”

Obama also faces one factor Clinton did not: race. While 58 percent of federal inmates arewhite, Berman said some Americans are sure to have the perception that an African-American president is aiding criminals of his own race.

“Whether consciously or subconsciously, everyone understands that the first black president has to tread particularly cautiously in this area,” Berman said.

Portugal Decriminalized All Drugs; Drug Use Dropped

As of this week, it’s been one year since the Cato Institute published its land report “Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies,” authored by Glenn Greenwald. The report examines eight years of Portugal’s drug policy: decriminalization of possession of all substances.

Here in America, last week the Providence Journal (the news source of record for the state of Rhode Island) took a related stance. The editorial board called for, not decriminalization, but taxation and regulation of all substances. The editorial argues, “Even if legalization were to increase drug use, that risk is overshadowed by the benefits. Crime would drop in our streets as dealers lose their livelihood, and users don’t have to rob others to support their habit. Governments can regulate the drugs for purity and collect taxes on their sale.”

However, the Cato report found that Portugal’s total decriminalization actually led to declines both in drug usage rates and in HIV infection rates. People found in possession of drugs are sent to a panel of a psychologist, a social worker, and a legal adviser to consider treatment and rehabilitation options. For the short version, read the TIME Magazine summary. This usage decline suggests that the public safety and economic benefits of drug policy reform would not merely offset harms of any increase in drug use, but rather, represent independent public policy gains.

Mentally Ill Jail Inmates in San Francisco

This morning’s Chron features a piece about mentally ill jail inmates in San Francisco.

Due to a severe reduction in beds, both public and private, for acute treatment, San Francisco is paying a huge price.

Those not given treatment and care are spun out to the streets, often ending up in the criminal justice system. Many ultimately go to state prisons. They are the homeless who live and beg on our streets, consumers of street drugs and both victims and perpetrators of street crime.

. . .

Police bring disturbed individuals to San Francisco General Hospital’s Psych Emergency Services. In 2007, the hospital had 87 locked ward beds. The 2010 budget would convert them to 22 acute beds and 36 sub-acute beds. Acute wards are locked wards with around-the-clock supervision, and provide an alternative to jail for the most severely ill persons, generally those with schizophrenia or bipolar illnesses, brought in by police under a 14-day hold permitted under state law and reimbursed by Medicare. Sub-acute wards are for those patients who are medically stabilized. For the seriously ill, an acute ward is the only alternative to jail.

The San Francisco Behavioral Health Court has been found to significantly reduce recidivism.

RI Leads Nation in Reducing Incarceration

Adding to our last post on the new Pew study, as a transplanted Rhode Islander I was thrilled to see Pew report that Rhode Island now leads the states in prison population reduction. As Bruce’s post reminds me, we never thought we’d see the day RI had fewer than 4,000 state prisoners. The RI General Assembly has recently eliminated mandatory minimum sentences for drug crimes, restoring judicial discretion. The Department of Corrections has increased sentence reductions for inmates’ good behavior.

Last night, the RI Senate Committee on Marijuana Prohibition released its final report, and concluded its business by releasing its final report and voting to recommend that the legislature decriminalize marijuana. This change would result in vast savings: in 2009 RI arrested 2,546 people for first-time marijuana possession. According to re-entry institute OpenDoors’s new report, in 2008 RI imprisoned 188 people and jailed 396–who spent a collective 2,366 days in jail.

Happy Birthday, Community Justice Center

The Collaborative Courts blog Moving Justice Forward features a “birthday post” for the Community Justice Center. Handling serious felony cases as well as quality-of-life offenses, the court engages its clientele in services, many of which have to do with drug treatment or housing. In its first year, the court has handled 1,800 defendants. Given the critique in its early days, the post also mentions the high appearance rate.

The high percentage of felonies handled at the CJC has been a bone of contention between the court and the San Francisco Public Defender, who does not staff the court. As a message to the attorneys who work the court–many talented law students with a strong commitment to public service are graduating this Spring, and many who graduated last year with excellent grades and impressive achievements are still looking for work. Please consider sharing the work with them.