Assessing the Dangerousness of Redball Criminals: Two Israel Examples

My forthcoming book Yesterday's Monsters examines the parole hearings of the Manson Family, who have been consistently denied parole for decades. A key issue in the book is the notoriety of the murders and the prevalence of a narrative about them, which I call "the Helter Skelter narrative", that portrays the crimes as bizarre, sui generis occurrences. You'll have to read the book to see how the Board of Parole Hearings handles these cases. For now, since I'm visiting Israel for a few weeks, here are two stories of local "redball criminals" and how their requests for parole and vacation have been handled.

A few words about prison sentences for murder in Israel: Until a recent amendment, the only sentence possible for murder was life in prison. The court did not announce a minimum time like in the U.S. (such as "twenty-five to life"); it merely announced "life". The authority to decide how long "life" lay solely in the hands of the President of Israel--a role he inherited from the British High Commissioner prior to Israeli independence. Life prisoners submitted a request to set the length of their prison sentence, and a special department at the President's office made a recommendation. From then on the sentence would be treated as a finite sentence for release purposes, whose clock starts ticking after the inmate has served two thirds of the sentence; for example, if the President set the sentence at, say, thirty years, the prisoner would come up for parole after twenty years. There's been a recent amendment that Americanizes the scheme of homicide offenses in Israel, but it's not particularly relevant to this post.[1]

Another important note pertains to vacations. Under the Prison Ordinance and relevant regulations, prisoners are eligible for short vacations from prison. These depend on the prisoner's level of dangerousness, the purpose for the vacation (an important family event, such as a funeral or an important birthday), and the time the prisoner has spent behind bars. Some of my lifer clients from the late 1990s have been receiving vacations regularly.

In 1995, as not only Israeli readers know, Prime Minister Yitzhak Rabin was murdered by political assassin Yigal Amir. The murder shook the country to the core, and as we all know, irrevocably changed the course of history by derailing the peace process, assisting Netanyahu in ascending to the Prime Minister role, and legitimizing hate campaigns against Israeli Arab citizens, Palestinian residents, and the Israeli left-wing. But closer to the events themselves, there was still some horror and shock about the crime, which led the Knesset to legislate a special personal law, colloquially known as the "Yigal Amir Law": a law that binds the discretion of the parole board in cases of people who murder the Prime Minister for political-ideological reasons. There's only one such person (so far), and the law was specifically tailored to address his particular case. The President may theoretically disregard the Board's legally-mandated "recommendation" not to release Amir, and in these times it's not completely farfetched to imagine a President who might do so, but disincentives abound (the committee is chaired by a Justice of the Israel Supreme Court.)

Interestingly, some members of Meretz, the left-wing, civil-rights political party, abstained from the vote. They explained that creating a special, personal law for just one person was a violation of the principle of legality, no matter who the person was. Others expressed similar trepidation, but thought this was such a rare and unique case that there was no concern about a snowball effect (things have gone so seriously awry in the civil rights arena in Israel to the point that I'm no longer sure this is true.)

Another famous case involved the horrific murder of Asaf Shtierman in 1996, which remained unsolved until 2000. When a woman named Sandrine Ben-David reported severe domestic violence incidents to the police, the investigation revealed that her young husband, Rei Horev, and two young women, Sigalit Heimovitch and Lihi Gluzman, were responsible for the murder. Horev, the main instigator (for psychopathic reasons that are very hard to undestand - Shtierman was a stranger to him), received life in prison, and has been behind bars for nearly twenty years. He is, according to reports, a model prisoner with a clean disciplinary record, entrusted with responsibilities such as working on a computer. When Horev's son with Ben-David turned 13, Horev received a short vacation from prison to attend his Bar Mitzvah (under heavy Prison Authority guard.) However, when Horev's son enlisted in the army, Horev's request for a vacation was denied. The judge who chaired the committee wrote a decision that reminded me a lot of the Californian equivalent Board's vague justifications to keep the Manson Family behind bars: "According to his employers in prison, he is a responsible, essential prisoner, devoted to work, contributing, serious, and meaningful. . . he participates in educational activities and has successfully completed several therapeutic group. His psychological assessment diagnosed a significant tendency to avoid negative feelings, aggressive urges, and to see the world in an overly optimistic way. This mechanism serves him now, but might make things difficult for him when he confronts situations that evoke strong feelings. Despite a high level of insight about his past, he is lacking a deep understanding about the destructive dynamics of his past close relationships, which could be a source of difficulty in the future."

A couple of days ago I posted about convicted rapist-murderer Shlomo Haliwa, who gets out in 2024; Horev, if he receives the customary reduction of a third of his sentence ,gets out in 2025. Who is to say which of these men is or is not dangerous? Anyone who's heard Haliwa on tape explaining to crime documentary producers that he "likes to fuck" and that all his "relationships" were consensual with girls who "wanted them" can conclude that this is not someone who's shown a smidgeon of insight. When he gets out, he will be 75 years old, and is still a strong, healthy man, probably as easily capable of overpowering and coercing a woman as he did in his thirties. Horev, on the other hand, has expressed remorse for his horrific crime; the extent to which he can be believed is debatable.

These cases raise the same difficulties that Yesterday's Monsters raise about the Manson Family inmates. To what extent does the notoriety of a case impact decisions to release? And is it a legitimate consideration? Is it legitimate to factor the public's distaste for a particular murderer in decisions to deny parole or vacations? And is there a proper measure of whether the distaste is justified? Redball crimes matter a lot in creating public policy and fueling the public's imagination about crime, but they also feature real victims and real perpetrators who are, after all, just people.

Yesterday's Monsters comes out early 2020 from UC Press.


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[1] It is, however, relevant to some of my other work: I've been studying American influences on Israeli criminal justice.

Residence Requirements for Sex Offenders Struck Down

This morning, in re William Taylor et al., the California Supreme Court struck down the provisions of Jessica's Law that restricted registered sex offenders from residing within 2000 feet of a school or park.

The bottom line is as follows:

[W]e agree that section 3003.5(b)‟s residency restrictions are unconstitutional as applied across the board to petitioners and similarly situated registered sex offenders on parole in San Diego County. Blanket enforcement of the residency restrictions against these parolees has severely restricted their ability to find housing in compliance with the statute, greatly increased the incidence of homelessness
among them, and hindered their access to medical treatment, drug and alcohol dependency services, psychological counseling and other rehabilitative social services available to all parolees, while further hampering the efforts of parole authorities and law enforcement officials to monitor, supervise, and rehabilitate them in the interests of public safety. It thus has infringed their liberty and privacy interests, however limited, while bearing no rational relationship to advancing the state‟s legitimate goal of protecting children from sexual predators, and has violated their basic constitutional right to be free of unreasonable, arbitrary, and oppressive official action.

Nonetheless, as the lower courts made clear, CDCR retains the statutory authority, under provisions in the Penal Code separate from those found in section 3003.5(b), to impose special restrictions on registered sex offenders in the form of discretionary parole conditions, including residency restrictions that may be more or less restrictive than those found in section 3003.5(b), as long as they are based on, and supported by, the particularized circumstances of each individual parolee.

While the Orange County Register believes that it is unclear whether the ruling has effect outside San Diego County, it seems that a legal provision that is unconstitutional in one area of California is just as unconstitutional in another. Of particular interest is the impact of San Francisco, which, because of the layout of schools and parks in it, is essentially inhabitable to sex offenders under Jessica's Law. This meant a large proportion of homeless and transient sex offenders, which, as one of them said to ABC news, "are actually walking time bombs out here because we are suffering from sleep deprivation". 

Nail Polish, or Why Left Realism Fights Rape Culture Better than Radical Demagogy

An interesting invention is making the rounds on social media website: four college students have invented nail polish that would allow its wearer, by inserting their finger into their drink, to detect whether a roofie--frequently used by rapists to overpower their victims--has been mixed into it. The company is called Undercover Colors.

This is a very practical, simple cautionary tool, and may help to spare many women, and some men, too, a traumatic and horrible experience. But the new invention has found some detractors, who in the name of radical feminism criticize the inventors as facilitating rape culture by placing the preventive responsibility onto the shoulders of the victims (see here and here.)

I'm sorry, I have to call bullshit when I see it. And this presumably feminist critique of prevention is grade-A bullshit.

It should probably go without saying that, like any decent human being on the planet, I am committed to ending rape culture, and that I believe that the fault for rape lies squarely on the shoulders of the rapist, which is why I really liked this campaign. Happily, evaluative research has found it to be effective in teaching men to be more respectful toward their partners.

But I get very, very upset when the people who purport to be fighting rape culture seem to be okay with not fighting rape itself, and especially with the radical demagogy that equates sensible self-protection with embracing rape culture.

Of course it is not the victim's responsibility to prevent crime. It is, of course, anyone's right to go anywhere they wish, wearing whatever they wish, without inviting physical or sexual assault. Nonetheless, we know that crime happens when there is opportunity, and many rapists are opportunists. And each of us takes preventive measures daily, to the extent that they are compatible with our lives and appreciation of freedom. We lock our house doors, we don't leave valuables in the car, we don't escalate arguments with angry drivers. And sometimes we make the choice not to engage in excessive self-protection, when we feel it infringes upon our lives too much, such as, for example, going out anywhere we wish, at any time of the day, wearing whatever we like. Doing so, of course, does not make us blameworthy if something bad happens to us. But taking measures that don't infringe upon that feeling of freedom has the potential of minimizing our odds of victimization, and doing that shouldn't make us blameworthy, either, for inventing such measures, using them, or recommending them to others.

The rhetoric against rape culture also pulls the rug under sensible and empowering acts like taking a self-defense class, even though we know that fighting back significantly reduces the odds of rape completion. Why, in the name of self righteousness and feminist idealism, would I deny myself, my family members and my friends the odds of survival and victory? How is this empowering? How is this preventing rape?

Moreover, as my friend and colleague Edi Kinney mentioned in a Facebook conversation about this:

[T]aking the opportunity to recenter discussions about rape culture to blame rapists is something activists have to do, but to me, we need to take advantage of allyship in its diverse forms and applaud practical efforts to engage in efforts to address sexual violence. What we've been doing hasn't worked. I think we should be emphasizing the fact that the men who developed the product were inspired to do because so many of their own friends had been drugged & sexually assaulted and they wanted to do something to empower their friends and other women w/ tools to identify risks. They apparently had scientific/lab/other expertise that they could deploy to that end, and were motivated to do so out of an effort to give women tools to help them protect themselves. IMHO, their allyship intentions -- AND the fact that bros who see social media accounts of this now might think twice re. engaging in predatory behavior at parties, bars, etc. -- trump the potential to reinforce 'blame the victim' rape culture. Rapists are opportunists, and I'd reckon there's a slippery slope between date rape and predatory behavior, and any tools to identify folks who engage in such behavior seems like a good start (and at least it's raising awareness?)

I think we have enough room for short-term and long-term strategies in the war against rape culture. In the long term, our commitment should be to eradicate it off the face of the earth. But in setting our sites on that and firing up our keyboards with feminist rhetoric, let's not forget that this thing we're fighting is not just an ideology. IT'S REAL AND IT'S VICTIMIZING WOMEN RIGHT NOW. And our first and foremost commitment to potential victims is to prevent their victimization as effectively and practically as possible, without stigmatizing them for it. Let's not lose sight of real rape when talking about the culture that produces it.

Patricia Krenwinkel Speaks Up

A few years ago we reported on Patricia Krenwinkel's parole denial. Today's New York Times includes an emotional opinion piece by Krenwinkel, looking back on her life and speaking about the Manson family, her crimes, the years in prison, and her self identity.



Will Krenwinkel ever receive parole? I doubt it. Even with our recasting of old and infirm inmates from risky to expensive, the Manson Family murders have a strong symbolic hold over our culture and imagination, and our revulsion of violent crime expresses itself in our fears and vindictiveness. As some readers may recall, another Family member, Susan Atkins, died in prison and was denied parole despite advanced cancer and disability.

But what I find notable here is something that sometimes gets forgotten in anti-prison advocacy: the importance of a message of responsibility. This is what makes me a radical realist. I truly believe that violent crime is real. I don't think it's common, nor do I think it justifies the mass incarceration machine and the human rights violations behind bars. But to victims, actual and potential, homicide, assault, and sexual abuse are frightening and damaging and debilitating. And no matter what environmental considerations we take into account, we must not discount the importance of taking personal responsibility. Not as part of a retributivist approach, but as part of a social prevention strategy.

When people who committed violent crime take personal responsibility for their crime, they teach us that redeeming the soul from shame and guilt is possible. They teach us that the victim is no "other" and that our shared humanity means we can have empathy for one another. It means that women are not hoes, cops are not pigs, rival gang members are not animals, people at work one begrudges are not monsters, old people are not dispensable, people of different ethnicities and family structures are not despicable. They teach us that life goes on behind bars, and that even though conditions may be atrocious and require a struggle, there may also be an internal struggle to mature and understand and know yourself better. And perhaps, if victims and potential victims are people, then the inmates serving time for violent crimes are not monsters, either--they are people, like you and me, who did terrible things, and while we expect them to pay a price, and to protect society from the danger they pose, we also should treat them as human beings.

Bail: Freedom, Capitalized

This video, produced by the ACLU and Beyond Bars, was posted in a story that appeared this week on The Nation, titled, Should It Cost Less to Get Out of Jail If You're Rich?  It is an introduction to the bail bonds industry, its budgetary backing, and the way it affects people of different economic backgrounds.

Bail research is fascinating. In the late 1980s, Michele Sviridoff found out that judges gave a "discount" to defendants making bail in cash. G.P. Monks found that the police was ineffective in assuring that people showed up for trial. But research from 2011 shows the extent to which the bond industry has been privatized. Mary Phillips, doing research in New York, finds that bail bondsmen's share of the industry has significantly grown, and that their actions magnify the alredy-existing socioeconomic gaps.  Brian Johnson and Ruth Stevens find that states place very few regulations on the bonds industry and on licensing to become a bail bondsman. According to this Justice Policy Institute report, the bail industry is not cheaper than the alternatives, and it is incredibly prone to overcharging and corruption. It is also backed by powerful profiteers. Shadd Maruna and colleagues even predict that people will be able to leave prison on parole after posting "post-conviction bail."

Conversations about prison privatization often ignore bail bonds, which are one of the first stops on the criminal justice train. It is worthwhile to take a look at costs, incentives, and class disparities even in these early stages of the criminal process.

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Props to Amir Paz-Fuchs for The Nation link.

Regulating Public Space: Excluding BART Offenders from Trains

Photo credit Rhett Aultman.

The picture on the left is of a public ad found in many BART cars recently. The text reads:

A new state law allows BART to prohibit individuals who have committed violent acts, certain misdemeanors or felonies on the system from entering BART property.

The state law references is Assembly Bill 716. The BART website elaborates:

Assembly Bill 716 allows BART to issue a “prohibition order” against anyone who commits certain offenses on BART property, banning them for 30 days to a year, depending on the offense. For infractions such as defacing property or urinating in public, a person must be cited on at least three separate occasions within a period of 90 days to receive a prohibition order. For more serious crimes such as violence against passengers or employees, the ban can take effect after the first instance.

There is a committee that decides on issuing the prohibition orders. And, there are apparently mechanisms in place to curb misuse of this law:

The new law also contains extensive safeguards to address concerns that the authority it grants could be misused. Anyone receiving a prohibition order can request an administrative hearing, the law states. The hearing officer can overturn the order if he or she determines the person “did not understand the nature and extent of his or her actions or did not have the ability to control his or her actions.” 

If the cited person is dependent upon transit for “trips of necessity,” including travel to or from medical or legal appointments, school, work, or to obtain food and clothing, the order must be modified to allow for those trips. If the person is not satisfied with the hearing officer’s decision he or she may seek judicial review.

The new law raises a lot of interesting considerations regarding the regulation of public space. BART property is the property of a governmental agency, and this exclusion is not unlike the exclusion of, say, sex offenders from public fairs and events. While it is important to keep in mind that there's a thematic connection between the conduct and the sanction - the violation has to be related to BART - it does beg the question how are said individuals to be identified and apprehended in busy stations without recurring to profiling methods that are banned by the BART police manual. It also brings up sad and angry memories from the Oscar Grant killing on New Year's Eve of 2009; Grant and his friends were arrested after a brawl on BART.

Excluding offenders from public space, especially mobility, also has important class implications. I'm happy to see that the law allows for modifying the order to accommodate "necessary trips", but verifying whether a given trip is "necessary" or not is a complicated matter and does not eliminate hassle and suspicion in the first place. It also means that folks who may not be able to afford alternative means of transportation to "non-necessary" destinations are now curbed from reaching these destinations.

We'll have to wait and see how "prohibition orders" are issued and executed. Email us if you experience anything related to this law on BART.

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Props to Richard Boswell and to Rhett Aultman.

Crime, Incarceration, and the Human Spirit: On Billy Sell and the Escape from Alcatraz

Frank Morris, Clarence Anglin, and John Anglin, courtesy
the BBC UK.

Billy Sell's tragic death yesterday, ruled a suicide by CDCR, raises some disturbing and urgent questions. How many such casualties will it take for CDCR to take the inmates seriously? We are on Day 21 of the hunger strike and there is serious concern for inmates' well being, especially those of them who are aging and infirm. Their physical condition is being monitored. Conditions in the SHU debilitate and harm not only people's mental health, but their physical constitution. It is admirable that, under these circumstances, inmates are committed to deprive themselves of food and drink. And if being prepared for the ultimate sacrifice, because a life of torture and indignity is worse, is not a good reason for CDCR to reconsider its position on isolation, I really don't know what is.

I wonder how much coverage Sell's death will receive in the mainstream media. Any effort to honor and remember his honorable sacrifice in the struggle for better incarceration conditions is likely to be blighted by ignorant commentary negating its value because, after all, he was doing time in prison, and therefore he must have been a very bad person, or worse, not a person at all. This is the same pervasive thinking that leads people on the outside to think that inmates are somewhat coddled by what folks who are not in the know perceive as "free health care." This dehumanizing attitude means not only that people can be disinclined to stand side by side with the hunger strikers and demand better conditions for them, but also that they could completely miss the heroic aspect of the struggle and not find anything admirable in it.

The tragic news of Sell's passing were particularly poignant for me yesterday, as I received them after completing my sixth successful Alcatraz crossing, which made me think about sacrifice and heroism within walls. Every time I jump off the ferry near Alcatraz and start swimming toward San Francisco I take a few moments to look behind my shoulder. In the first ten minutes of the swim it seems as if The Rock is not getting any smaller. And then, I think about the many documented attempted escapes from Alcatraz, and particularly about Frank Morris, John Anglin, and Clarence Anglin, who in 1961 plotted (with Allen West, who could not join them due to technical difficulties) the most daring, and likely successful, escape through the ventilation ducts, ingeniously using dummies and a raft.

More than fifty years after the escape, the file remains open, and among the thousands of athletes who attempt Alcatraz crossings there are many, like yours truly, who are convinced that Morris and the Anglin brothers made it safely to shore. I like to think of them, now very old men, sitting in a suit and a beret or a fedora at a cafe in North Beach, sipping a strong espresso, reading the Chronicle and chuckling quietly to themselves.

To them, the frustration of looking back and seeing The Rock looming dark and threatening must have been fraught with terrible fear and apprehension, compounded by the serious concerns about their welfare once they got to shore. Would they suffer hypothermia? Who would help and shelter them on the outside? Where would they get money, and how could they avoid being recaptured?

Time has been kind to Morris and the Anglin brothers. Millions around the world admire and respect their courage, ingenuity and bravery. But they were not saints. Morris' record included daring robberies, and the Anglin brothers robbed a bank (with a toy gun.) They received lengthy sentences and perhaps, to the average citizen in the early 1960s, would appear unsympathetic, dangerous, and undeserving of respect. Just as some people may be thinking about today's hunger strikers and their struggle.

But crime and criminality do not negate the value of the human spirit, or its ability to soar in courage and conviction. Last week many of us saw Fruitvale Station in the theaters and enjoyed Michael Jordan's humanizing rendition of Oscar Grant, a man who did not live a grand life of achievement, but rather a life of fatherhood, flawed partnership, and teetering between drug dealing and an honest day's work. And we cried for him, and we appreciated the ember of humanity within his soul, because it is also in ours, and we wept when that ember was extinguished by a gunshot. Billy Sell's death teaches us a related, and perhaps more important, lesson. It's not just that each and every life is precious and imbued with intrinsic value. It's also that the human spirit does not die if someone has broken the law. Indomitable courage, initiative, creativity, commitment to one's values, perseverance, and the yearning for personal freedom, are as admirable in prison as they are on a freedom ride or at a protest in the park, and perhaps more so because of the risk of retaliation and mistreatment, not to mention death. There are courage and bravery and principled positions behind walls. There is much there that we can find inspiring and respectable, even as there is plenty there (as on the outside) that we would find petty and deplorable.

May Billy "Guero" Sell's memory not be in vain, and as generations of athletes are inspired by Frank Morris and the Anglin brothers, may generations of activists and advocates within walls and on the outside honor his sacrifice with an undying struggle for dignity.

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Props to Jonathan Simon, whose conversations with me last year inspired this post, to Caitlin Henry, whose work on behalf of the strikers inspires me daily, and to Chad Goerzen and Rhett Aultman for talking to me yesterday about Alcatraz and the power of myth.

Redball Crimes and Criminalization: Why Gun Control Makes Sense

The last few days have seen abundant web commentary for and against President Obama's gun control legislation plan, as well as some localized efforts in that direction. Critiques based on the Second Amendment as a constitutional right are not as interesting to me as the ones that argue this is unnecessary regulation based on moral panic.

We've talked before about moral panic in the context of shootings. Legitimate horror and shock aside at such events, they are not as common as they might seem; as a cause of death, shootings generate much less death than illnesses (some of them preventable and treatable.) So is gun control an exaggerated, moral-panic-triggered response to Newtown? Should we hesitate more before introducing such legislation?

There's an important difference between gun control and criminalization, and it goes to the proportionality of state reaction. While CNN seems to have serious doubts as to whether this legislation will pass congress, the content of the legislation itself does not feel too onerous or dramatic. No one goes to prison for years for victimless crimes, which is often the end product of moral crusades. People can still have guns and shoot them to their heart's content, as long as they don't use assault rifles and/or high-capacity magazines. Mental health access is improved, as is school security. In short, this is more of a situational crime prevention measure, which is exactly what we advocated here, rather than an initiative that demonizes a group of people. In short, nothing truly earth shattering. The panic that these fairly sensible and mild reforms is generating among the NRA and their allies is a sobering reminder of how partisan politics closes one's ears to reason.

Guns, Pediatricians, and Framing Violence Risks

Joey, 11, killed his first deer when he was 7. He lives with
his family in Kentucky.
Image from New York Times "Where Children Sleep"
photo essay.

Is it within a pediatrician's authority to warn parents about unlocked guns in the homes of child patients?

That question came up in Florida last year, and the recent tragic events in Newtown have brought it back to the forefront. This fascinating article, by Schaechter et al., provides a good overview of the question in the context of a Florida law that was supposed to block pediatricians from asking about gun ownership, pointing out the risks to patients' families, and recommending that they don't keep a gun in the home, or at least that the gun is kept locked.

Now, the legal controversy was about whether the law protected people from the pediatricians' supposed infringement upon their Second Amendment rights. A Florida court found that it did not:

“Despite the State’s insistence that the right to ‘keep arms’ is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights,” wrote U.S. District Judge Marcia Cooke. “A practitioner who counsels a patient on firearm safety, even when entirely irrelevant to medical care or safety, does not affect nor interfere with the patient’s right to continue to own, possess, or use firearms.”

Subsequently, the law was permanently blocked, as violating the physicians' First Amendment rights:

“What is curious about this law — and what makes it different from so many other laws involving practitioners’ speech — is that it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient, whether relevant or not at the time of the consult with the patient,” Cooke wrote, citing the benefit of such “preventive medicine.”

 But rather than a doctrinal debate about the First or Second Amendments, let's focus on something that I find more interesting: The question of how one defines what is the legitimate business of a pediatrician and what isn't. This Time article provides some interesting quotes from the sparring parties about what's really at stake: Whether warning parents about gun ownership risks is within the provenance of the medical profession or an unwarranted moral intervention.

”We take our children to pediatricians for medical care — not moral judgment, not privacy intrusions,” NRA lobbyist Marion Hammer told NPR in May.

“The law was crazy,” says Louis St. Petery, a pediatric cardiologist in Tallahassee and executive vice president of the Florida Pediatric Society. “The NRA [National Rifle Association] argued that we were out to rid the state of firearms, but that’s a distortion. Our issues as pediatricians are all about safety.”

Now, there is no doubt that bringing in someone who has been shot by a gun is a medical issue. But does that extend to pointing out the risk that that might happen with a gun kept in the house? On one hand, there are studies linking carrying guns to the risk of being shot, and studies linking keeping guns at home to similar risks. It is these studies that prompted the American Academy of Pediatrics to adopt a policy stance against gun ownership. On the other hand, I suppose studies of causal inference in this regard do not require medical education to understand.

But this raises the question of how much of violence prevention (with injury or death being possible result of said violence) is within the provenance of the medical profession. Interestingly, medicalization is often offered as a counterbalance to criminalization. In the context of drugs, making them a medical, rather than a criminal, issue is sometimes considered a benign approach. And, in Governing Through Crime, Jonathan Simon suggests supplanting the war on crime with war on something else, such as on cancer.

Whenever I've heard Jonathan speak about this, I've thought (and sometimes commented) that the problem is not with the subject of the war; it is war itself as a model to tackle problems. But I also think that Conrad and Schneider were right in pointing out that medicalization can be just as pervasive and intrusive as criminalization, and sometimes more. A case in point is our locking up of sexual violent predators in civil commitment long after their sentences have been served. I also think that the expansion of the field of medicine is perhaps easier to do now that we tend to see disease in holistic, environmental terms. Studies increasingly link disease to factors that involve people's overall lifestyle: Stress, smoking, overworking, sexual habits. Doctors are bound to touch upon these topics when discussing their health risks, and all of these are, to some extent, statements that go beyond treating the person's immediate problem.

Seems to me that one's acceptance of, or outrage at, a doctor's mention of the connection between a given lifestyle is a good litmus test as to one's political beliefs. Remember the fear in the early days of AIDS discoveries that it was a form of "gay cancer?" And the battles in San Francisco and in New York over shutting down bathhouses? Gay activists at the time protested that the medical profession was using AIDS as a tool to oppress them and morally sanction their sexual behavior. We now know that the HIV virus is transmitted through unprotected sex, and that refraining from unprotected sex was sound medical advice. But the community's sentiment that there were political repercussions to these medical policies can be understood. They are not much different than the sentiments expressed by NRA activists.

While I understand the concerns about medicalization as a way to legitimize political interference in private choices, I tend to err on the side of allowing the doctors to rely on studies of risk to educate and warn us about our choices. The bottom line is that providing advice and warning is nothing more than medical advice, which we might heed or discard depending on our priorities in life, risk averseness, and values. And if we get bent out of shape because a doctor tells us that keeping a gun in the house increases the odds that our child will be injured, maybe it's because we are feeling a bit insecure about the choice we made in the first place.


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Props to Viet Bui for bringing the article to my attention, and to Aatish Salvi for the conversation that helped me clarify my ideas on the topic.

On Sandy Hook, Moral Panic, and Legitimate Fear

Map of shooting incidents courtesy Mother Jones;
interactive version on the website.

Much of the commentary on Sandy Hook has highlighted the rise in the number of public shooting incidents in the course of the last few years. Some of the aggregate data on the shootings can be found on Mother Jones or on the Citizens Crime Commission of New York City website. Does the fact that there seem to have been many recent incidents of mass murders and spree killings of this sort mean that we have a phenomenon we need to worry about in a systematic way? We are, of course, saddened, heartbroken, angry--but should we also be afraid?

The answer to that question depends on how one defines "phenomenon" and how one decides what to worry about. Since there is no official measurement for "worrisomeness that merits criminalization/heightened enforcement", the extent to which we take steps to criminalize, police, and curtail rights depends on how severe we assess the threat to be. And that is, generally speaking, a question that involves politicians, the media, and the public.

One criminological concept that pops up in these discussions quite often is moral panic. A term coined by Stanley Cohen in his classic book about the Mods and the Rockers, it is "a condition, episode, person or group of persons [who] become defined as a threat to societal values and interests." Cohen emphasized that the panic is amplified by media reports and often culminates in a call to do something on the matter. Goode and Ben Yehuda identify consensus, a heightened level of concern, and hostility, as important factors in a moral panic.

Unmentioned in the definition, but implied in the literature, is the assumption that the panic is exaggerated. That is, that there is no real cause for concern, or at least not to the extent that justifies criminalization or curtailment of personal rights.

In 1999, Ronald Burns and Charles Crawford published an article on Crime, Law and Social Change about school shootings as a moral panic. The article shows the interaction between politicians, media reports, and public outcry, in the aftermath of Columbine. As they analyze the political and media attention to school shootings, they offer the following to show that the concern was disproportionate:


Were these massive societal responses to what were indeed heinous, threat- ening offenses against schoolteachers and students justified? A closer look at statistics regarding juvenile crime and more specifically school violence suggests that what occurred was arguably an overreaction to the situation. For example, consider the following sample of recent findings regarding juvenile crime in the context of the aforementioned societal responses: 

• There has been no increase in the number of children under age 13 arrested for homicides in the U.S. In 1965, 25 children under age 13 were arrested for homicides and in 1996 it was 16, a 36 percent decline (Donahue, Vincent and Schiraldi, 1998). 
• Overall, fewer than 3 percent of the killings in America in 1996 involved someone under age 18 killing someone else under age 18 (FBI, 1997). 
• FBI data suggest that national youth violence arrests went down both in number and in share of total youth arrests between 1992 and 1996 (“Violent youth . . .,” 1998). 
• Three of four young murder victims – 90% of them under age 12 and 70% of them agged 12–17 – are killed by adults, not by juveniles (Males, 1998). 

While one cannot discount the substantial increases in juvenile crime during the late 1980s, recent reports suggest that the problem is diminishing. Bernard (1999) suggests that although there exists conflicting trends, the most consist- ent interpretation is that juvenile crime, with the exception of homicide, has declined by about one-third over the last twenty years. In their chapter titled: “Juvenile Superpredators: The Myths of Killer Kids, Dangerous schools and a Youth Crime Wave,” Kappeler, Blumberg and Potter (2000) elaborate upon these and similar findings. There has been a similar, and probably more pro- nounced decrease in the amount of school violence. Consider the following: 

• There were 55 school shooting deaths in the 1992–1993 school year; 51 in 93–94; 20 in 1994–995; 35 in 1995–96, 25 in 1996–97; and 40 in 1997–98 (Lester, 1998). There are more than 50 million students and more than 80,000 schools across the country (Sanchez, 1998). 
• A child’s chances of being struck by lightning are greater than the million- to-one odds of being killed in school. The number of children killed by gun violence in schools is about half the number of Americans killed annually by lightning (Byrne, 1998). 
• According to PRIDE, the number of students bringing guns to school dropped from 6 percent in 1993–94 to 3.8 percent in 1997–98 (“1 million . . .,” 1998). 
• In Los Angeles, 15,000 people have been murdered during the 1990s. Five occurred at school. Of 1,500 murders in Orange County during the 1990s, none took place at school. Institutions in these areas serve 2 million students, including 700,000 teenagers (Males, 1998). 
• The United States has approximately 338 million children between the ages of ten and seventeen who attend roughly 20,000 secondary schools. In 1994, there were no school shootings in which more than a single person was killed; in 1997, there were four; and in 1998 there were two (Glassman, 1998).

Available data from sources such as the Centers for Disease Control, National School Safety Center, National Center for Education Statistics, U.S. Depart- ment of Education, and The Sourcebook of Criminal Justice Statistics support the suggestion that the recent school shootings were idiosyncratic events and not part of any recognizable trend. Ironically, the shootings may have received such intense coverage because of the infrequency of these occurrences rather than their frequency (Donohue, Schiraldi and Ziedenberg, 1998).

Similar arguments can be made today. While there has been an uptick in the number of these murderous incidents, crime, and violent crime in particular, is on the decline nationwide. And while the prospect of falling victim, or losing a loved one, to a mass shooting is terrifying and horrible, the odds of this occurrence are still very, very low.

Does that mean that the concern is unjusfied? Disproportionate? I don't think so. I think that fear of crime is an entirely real and reasonable response to such an incident. We respond strongly to experiences and events not just on account of their frequency, but also on account of their magnitude and meaning. So, yes. We are sad, and heartbroken, and angry, and have every right to be sad, and heartbroken, and angry.

The next question to tackle, after we dry our tears and sit at the policymaking desk, is how do we want the odds of another horrific occurrence to shape and affect the architecture and organizational culture of our schools. Do we want more metal detectors? More armed guards? More search points at the entrance to schools? How would that affect the learning experience, intellectual growth, and social interactions of the nation's children? All of those balances will have to be done delicately and carefully, because, by contrast to a horrifying mass murder scene, their effects will be subtle and intangible. And we should keep in mind, that it is okay to be sad, and heartbroken, and angry, and at the same time, wise and thoughtful in our policymaking reactions.

Sandy Hook, Gun Control, and Situational Crime Prevention

Image courtesy clubrunwithus.com.

Among the information that has come to light in the last few days was the fact that the innocent children and adults who were slaughtered two days ago were shot with guns owned by Adam Lanza's mother--and murder victim--Nancy. This is one more data point consistent with the bulk of peer reviewed research confirming that gun ownership, and keeping guns at home, significantly increases the odds of household members dying of accidents, suicide, and homicide.

The hoarse calls for Second Amendment freedoms, and the ludicrous suggestions that teachers keep guns in the classroom "for protection", I set aside here. I find them tasteless, misinformed, and impossible to reasonably interact with. But I do want to express some surprise not at private citizens and internet commenters, but at situational crime prevention criminologists. For all the advice on how to make crime more difficult to commit, not a word about gun control?

I learned about situational crime prevention in the early 2000s from David Weisburd, one of the world's foremost experts on it. After learning many lofty theories about the etiology of crime in grad school--free choice, medical pathology, difficult childhood, racism, patriarchy, deprivation, labeling, strain--there was something almost disappointing about delving into a theory that advocated keeping CDs locked behind the counter at the record store, displaying only one shoe of a pair  at the sports store to prevent theft from the shelves, and placing armrests on park benches to prevent homeless people from sleeping on them. Figuring out why people commit crime is a big enterprise, said David at the time; "crime" is a general name for a family of diverse and unrelated phenomena, and there is no shame in manipulating the non-offender factors to reduce its occurrence.

In grad school, and as a postdoc, I confess I looked down on this literature, but I've since become wiser and grateful for the time I got to spend with David and read this stuff. Having done some fieldwork on open drug markets, I've realized that even the most constrained situations--rife with social inequalities, municipal indifference, and racial injustices--offer offenders some measure of rational choice, however confined it might be. Even within the tough and distressing realities of the Tenderloin drug market, drug traffickers sell their merchandise not under the private SRO surveillance cameras, but away from there, near the municipal cameras they know don't work. I don't really buy Ron Clarke's adherence to rational choice as the principal model explaining human behavior--I find its poverty disturbing--but denying agency and ascribing everything to social ills is equally disturbing and simplistic. To some extent--when done in concert with an effort to understand more deeply what is going on--manipulating the environment to make crime less appealing or more difficult to commit is not a bad idea. Displacement is a problem, of course, but that can be addressed, as David Kennedy reminds us, with tough enforcement at "hot spots".

But for all the grants, contracts, and consulting that situational crime prevention experts do, their efforts are mostly addressed at quality of life crime and at property crime. Take a look at the advice offered on the Center for Problem-Oriented Policing website, for instance, and click on all the squares. It is geared toward vandalism and petty theft. I expected to see a word about gun control in their "control tools and weapons" tab. Instead, we are told to manufacture "smart guns" and to restrict spray-paint sales to juveniles.

Spray-paint sales?

I think what is happening here is that criminologists who have been dealing with municipalities and police departments don't want to rock the boat. The minute they make recommendations that might require someone, God forbid, to appear to be pro-regulation or what Americans mistakenly refer to as "socialist", police chiefs and politicians will stop listening. Sit-lie ordinances, or making benches uncomfortable, do not make politicians tremble. But take something on which there is basically a professional consensus - more easily obtained guns mean more deaths - and everyone is suddenly very quiet.

I want my friends who have given such excellent advice to retailers and housing project managers (I say this with appreciation and admiration, and without a shred of cynicism) to grow a backbone and tell the people who work with them that some government regulation might be necessary. If they are genuine in stating that situational crime prevention is wholly apolitical, and not merely an incarnation of criminological conservatism, isn't this a good time to argue for gun control? I want my friends to do more than quality-of-life architecture. Research is on their side. All it takes is for one respected scholar in the prevention field, not a shrill-voiced lefty, to say words of reason and science. Who is it going to be?

On Sandy Hook and Violence Prediction

Photo courtesy ibtimes.co.uk.

In the aftermath of the dreadful Sandy Hook tragedy, much of my Facebook wall is the arena of political debates about gun control and about national mental health care. But what of the human factor? Can we predict such horrific violence?

A recent story in the New York Daily News provides a profile of mass murderer Adam Lanza as described by former classmates and neighbors. He's described as having either Asperger's syndrome or some other disorder, and there are abundant details about his parents' amicable divorce and generous alimony arrangement. What is interesting to me is that many of the commentators on the piece express lack of surprise at the identity of the murderer.

 . . . 

 A “longtime” family friend said Lanza had a condition “where he couldn’t feel pain.” “A few years ago when he was on the baseball team, everyone had to be careful that he didn’t fall because he could get hurt and not feel it,” said the friend. “Adam had a lot of mental problems.” 

 . . . 

 Lanza walked the halls of his middle school carrying a black briefcase while most students lugged their belongings in backpacks. “That stuck out,” said Tim Lalli, 20, who graduated with Lanza in 2010. “It was different.” Lalli said Lanza wasn’t a total outcast, but he didn’t speak much. “Everyone just assumed he was a smart kid and that’s why he didn’t like talking to people all the time,” he said. “He hung out with the smart crowd.” 

 . . . 

 One family friend described Adam Lanza as a gamer who “rarely spoke.” “He was weird,” said the friend, who asked to remain anonymous. “He was quiet.” 

 . . . 

 Do these remind you of anything? In the aftermath of the Columbine shooting, the media and the public were quick to blame and label Goth youth who wore trench coats to school. Dave Cullen's 2009 book Columbine debunked these stories. The killers' personal journals reveal that Eric Harris was a sophisticated psychopath, while Dylan Klebold was deeply depressed and captivated by Eric. But it was much easier to look for external signs of not fitting in than for the killers' personal psyche.

And so, after every senseless tragedy that claims the lives of innocent people, we are subjected to these generalizations. The price we pay is much more intangible and less noticed. And that is the stigmatization of entire populations of youth who may not fit in at school, who carry a briefcase in lieu of a backpack, whose hobbies involve gaming. Fortunately, the vast majority of these people will never kill. And this is true for the many harmless, kind, nonviolent people many readers probably know who have Asperger's or other personality disorders.

So how can we tell who might do this? The answer may be more situational than anything, really. As Gavin de Becker reminds us in The Gift of Fear, watching a situation attentively and paying attention to our feelings is important, and it is equally important not to let fear paralyze us so much that we stop paying attention in the situations in which it is there as a friend, to warn and alert us. If we now fear and loathe all our fellow human beings who behave eccentrically and suffer from mental illness, we will lose our valuable, precious instinct for predicting a violent situation near us. Because we will start stereotyping and hating, and we'll stop watching and paying attention.

And after all that is said and done, the only thing left to do is cry for the many lives that were lost, for the potential squandered, for friendships and toys and notebooks and story time, for fish fingers and peas and coloring books, for a love of learning and a love of teaching. And maybe to remind ourselves that these incidents are horrific, but uncommon. And that love wins over fear. Most of the time.

Prop 36 and the Gift of Fear

Current polls show Proposition 36, the initiative to amend the Three Strikes Law to require that the third strike be not just any felony but a serious or violent felony, leading by a significant majority. In a previous post, we provided an analysis of the proposition, concluding that it was a step in the right direction, though we would have liked to see more reforms (including some hope for second strikes and a consideration of the simultaneous strike problem.) Today I'm thinking about the minority of Californians who still oppose Prop 36 and pondering the sources of said opposition.

As my colleague and friend Josh Page argues in The Toughest Beat, the original Three Strikes Law was heavily promoted by the CCPOA--California's prison guard union--and victim organizations puppeteered by the union. Spearheading the law were families of victims of heinous crimes perpetrated by habitual offenders on parole. The original idea behind the law was not to deter potential criminals from committing crime; if we allow simultaneous strikes to be counted in the same trial, we're pretty much dismissing the deterrent effect. Rather, the idea was to incapacitate; namely, to identify risky individuals and put them behind bars for life.

A Legal Analyst's Office analysis conducted in 2004 stated that only a third of the then-Three-Striker population had committed their third strike offense against a person. The remainder two thirds had committed a nonviolent third strike--a drug or a property offense. Moreover, less than half of the Three Strikers had committed an offense that could be considered serious or violent. However, as the report stated, while the third offenses were often not serious or violent (and sometimes, according to distressing news reports, rather petty), third strikers do have more serious criminal histories than other state inmates.

So, let's look at this from a prism of risk. Does a serious or violent criminal history consisting of two prior offenses predict that more violent might be perpetrated in the future, even if the person's third offense is actually not a violent one? The answer to that question is fairly complicated. Some criminal offenses are better predictors of risk than others.

I've recently read Gavin de Becker's The Gift of Fear. De Becker is a private consultant, specializing in violence prediction. The book examines various scenarios of violence--death threats, stalking, abuse, violence wrought by fired employees, stranger violence--and strongly advocates that readers pay close attention to their own intuition in situations that feel instinctually wrong or dangerous. De Becker's point is that, in any given situation, there are many clues that might help a potential victim predict a violent eruption. Some of these clues may be difficult to verbalize, as the potential victim might only notice them briefly, but our intuition works faster than our logic; therefore, the gut feeling in itself, without the verbal articulation of the grounds for danger, is important.

De Becker's message is well taken in the context of individuals and immediate violence. He is combating many years of socialization that implore us, especially women, to be "nice" and kind to strangers even when we feel something is awry, and the good will that might lead us to discount our instincts as stereotypes which must not be heeded. Being wise, rather than nice, could save our lives, which I think is an important message.

But it would be a big mistake to confound de Becker's message with a message to vote no on 36 because our instinct tells us that people with two prior violent offenses are dangerous, and here's why. First, there's a big difference between predicting imminent violence at the interpersonal, immediate level, and predicting it at the policymaking level as an uncertainty that might occur sometime in the future. For the latter task, one has the luxury of employing statistical predictions that a layperson cannot access in a given situation. Also, assessing a particular situation based on its context is an entirely different task than trying to predict violence without any reference to time, place, and circumstances. The factors that come into play in the latter situation will necessarily be generalized and based on many years of statistical prediction - which is why most parole boards have come to rely on statistical software, rather than on individualized clinical predictions.

Second, it's important to keep in mind that risk prevention in general only goes one way. Sure, if we lock up all convicts with a criminal history indefinitely we might end up safer; we eliminate the risk of false positives; our pity or compassion would be neutralized and we'd make no predictive mistakes. But what about all the people whom we may be locking up needlessly? And what about first-time offenders, for whom we have no such predictors?

And third, violence prevention is only one factor in designing penal policy. The third strikers we incarcerate for twenty-five years to life have already been punished for their two prior offenses. Retribution and proportionality are also important from a justice standpoint, as is the prospect of hope for release.

Which is why I wholeheartedly recommend The Gift of Fear - and voting YES on 36 - and do not see these messages as contradictory at all.

Concern in Pelican Bay: Increase in Solitary Confinement?

A disconcerting trend predicted on the San Francisco Bay View: The depopulation of prisons may be accompanied by an increase in the use of solitary confinement. The mostly-unreported hunger strike of September and October was in manifestation of inmate concerns with the change in security groups. Here's more information, as per letters from Todd Ashker, the strike organizer:

Written Jan. 22, postmarked Jan. 27, 2012 – As soon as I first heard during our face to face meeting with former Undersecretary Kernan of CDCR’s plans to go to a “security threat group” (STG) system of classification, I recognized the very real potential for manipulation and abuse of such by certain factions in power positions in CDCR – e.g. CCPOA (California Correctional Peace Officers Association), gang unit etc. I immediately detailed my concerns to our attorneys – this was part of the reason for hunger strike no. 2 in September and October.


Briefly, here’s what I’m concerned about: Right at the time – in May – when the U.S. Supreme Court upholds the lower court’s prison population reduction order, in seeming response to our July hunger strike, CDCR unveils their STG plan. Here’s how it looks to me: The prison population reduction of 35,000-40,000 prisoners equals a potential loss of $2 billion in the yearly CDCR budget and the loss of approximately 7,000 CCPOA members. That’s the loss of a lot of union dues!


A clever way to offset some of this loss is to create a “new” security threat designation scheme – used in a lot of states, including Arizona, where it’s used to isolate all inmates labeled southern Hispanic from California – enabling CDCR to segregate a lot more men. Segregation costs nearly double general population and requires more staff.

Does any of our readers have more information about this?

Book Review: Thinking, Fast and Slow

Daniel Kahneman's new and fantastic book Thinking, Fast and Slow is a fascinating journey into an intellectual career spanning more than forty years. Kahneman, who won the Nobel prize for his work on rationality with Amos Tversky, presents a lifetime of research and findings into human rationality and its fallacies in a coherent, intriguing and convincing way. It is a book I would wholeheartedly recommend to anyone regardless of the context of criminal justice. Kahneman and Tversky's ideas on rationality, however, have special bearing on issues of criminal justice policy, and the book might therefore be particularly interesting to this blog's readership.

To fully understand the novelty Kahneman's (and Tversky's) Nobel-winning ideas, it is important to keep in mind that they were generated against the backdrop of very traditional ideas of human rationality in economics. Classic economic theory assumes a human subject who is fully rational, fully knowledgeable, and operates within a framework of cost-benefit analysis. Kahneman and Tversky, students of human behavior rather than of economics, devoted their careers to questioning and refining this model of human cognition to accommodate flaws and fallacies in rationality, revolutionizing the field of economics and enriching it with empirical insights about the actual and irrational workings of human behavior patterns. Which is how a psychologist ended up receiving a Nobel prize for economics.

Kahneman introduces his ideas to the public through a fresh perspective that serves as the leitmotif of the book. Our thinking, he argues, is characterized by two modes, or systems, if you will. System 1 is responsible for the quick-and-dirty judgments and conjectures that allow us to instantaneously make sense of the world. When more effort is needed, System 2 snaps into action, and engages in the complex thinking required to solve problems or think outside our cognitive box. The problem is that System 2 is lazy. It does not come into play unless it absolutely must, and it takes an effort to engage. So, our default mode is to slack and allow System 1 to do our work for us. The result is that we generate our opinions about the world in ways that rely on shortcuts, assumptions, stereotypes, overly causal interpretation, and anchors, that are flawed and lead us to making a myriad of mistakes.

Kahneman proceeds by mapping for us, chapter by chapter, a series of these fallacies. Among the heuristics and biases he mentions are the halo effect (forming an opinion of something based on one or two qualities and extrapolating), What-You-See-Is-All-There-Is (WYSIATI - relying on whatever information is available, no matter how flimsy and unreliable), anchoring (linking our assessments to whatever number is thrown out, no matter how improbable), substituting difficult questions for easy ones, ignoring base lines, ignoring regression to the mean, and creating overly causal narratives for things that could be accounted for through pure chance. He then walks us through the impact these fallacies have on professional decision making, and finally through his more recent work on happiness.

The book is fascinating for anyone who is interested in understanding human behavior, but I found its implications for criminal justice policy particularly startling. The insights on flawed rationality can explain not only public punitivism and voter initiatives, but also the flawed behavior of professionals: judges, prosecutors, and defense attorneys. Here are some of the many examples of possible applications.

A recent Supreme Court decision grappled with the question how to prevent injustices stemming from the prosecution's failure to comply with the Brady requirement to disclose to the defense "any exculpatory evidence". The assumption made by the Court is that monetary compensations to exonerees who were wrongfully accused without an opportunity to receive evidence in their favor are only effective when prosecutors acted out of malice. In a paper I presented at a Constitutional Law conference in Chicago, following Kahneman, Tversky, and a solid body of behavioral research, I suggest that many Brady violations may not be attributable to anyone's fault, but rather to confirmation bias: Prosecutors and defense attorneys simply read evidence differently, and prosecutors, given their professional environment and their pro-government bias and socialization, are less likely to view evidence with an eye toward its exonerative potential. I'm in the process of devising a study to examine the existence and extent of confirmation bias in prosecutorial and defense perception of evidence, as well as its causes.

Another big area where heuristics and biases are important is sentencing. Kahneman's book is full of examples of flawed decision making due to chance issues. Notably, he cites a series of studies comparing judicial decision making to those of computer algorithms, finding that the computer makes less mistakes. But he also shows how judges making parole decisions tended to be more generous in terms of release immediately after eating, when their ability to access System 2, and their cognitive ease, were at their prime. This is, of course, greatly disturbing, and a factor to keep in mind when thinking of the strong judicial opposition to sentencing guidelines and any form of diminished discretion. Contrary to the bon ton in today's analysis of the correctional crisis, it may well be that sentencing guidelines and the diminishing discretion of judges were not a fatal decision reached by overzealous punitive right-wingers and misguided left-wingers, but rather a good decision, whose adverse effects are not due to the decrease in judicial discretion, but due to the increase in prosecutorial discretion.

Another important implication of al this risk prediction and algorithms. Kahneman's experiments strongly support favoring the quantitative tools used by various correctional systems, including CDCR, over the sort of clinical risk assessments popular in the early 20th century. The concern we have with giving machines the power to assess individuals' risk based on stereotypes may be exaggerated, Kahneman's work suggests. Humans may make more serious mistakes, and reliance on past predictors of recidivism or parole violations are more reliable than intuitive impressions of trust and sympathy.

An area I find particularly compelling is the study of public punitivism, and prospect theory could have a field day with what we know of this. A decent argument can be made that much of what passes for public decision making in the field of voter initiatives is System 1 work. First, the public's reliance on "redball crimes" - shocking instances of horrifying, sensationalized crimes, that receive a lot of media attention - is a prime example of WYSIATI. Rather than engaging with statistics that expose the entire picture of crime reality, we rely on what is salient and reported, rather than with what we know to be truer. Moreover, much of the punitive legislation against sex offenders might be an example of substituting difficult questions with easy ones. Rather than thinking what sort of punishment sex offenders deserve, or how many resources to invest in punishing them, or which measures would reduce recidivism, voters may be thinking on how much they dislike sex offenders. A System 1 mechanism of "translating scales" converts the extent of dislike and revulsion to a measure of punishment, and punitive voter initiatives are born and passed as law.

There could be many more examples of possible applications, and I'm happy to entertain some of these in the comments. i just want to add a  final note on the delights of Kahneman's book: What distinguishes this book from other popular behavioral science books, such as Dan Ariely's Predictably Irrational, or Malcolm Gladwell's Blink, is not only its quality--Kahneman respects his readers, does not oversimplify, and happily shares the depth of his intellectual process, which places this book in a class of its own--but the moving, nostalgic tribute it makes to the working partnership and decades-long friendship between him and Tversky. As many friends who have collaborated on research projects know, the relationship between collaborators is unique and special; the curiosity and give-and-take of the work creates a strong bond. The book is a love letter to Tversky and to the two researchers' community of students and colleagues. One can almost walk side by side with Tversky and Kahneman, listening in on their conversations and debates, witnessing the generation of ideas sparked by their easy, friendly conversations, and feeling the parental warmth of their respect and enthusiasm for the success of their intellectual children and grandchildren: professors, postdocs, and graduate students. It is a pleasure to enjoy this additional dimension on the book, made more poignant by the heartbreak over Tversky's untimely death at 59 in 1996, six years before the Nobel prize win. And it is a reminder of how important it is to appreciate one's scientific community, or scientific family, and its contributions to one's intellectual and emotional life.

----------------
Many thanks to Haim Aviram for our discussions about this post and to Robert Rubin for the recommendation.

Ajami, Part One: Between "Security Crime" and "Ordinary Crime"

As I post this, I am en route to Israel, to participate in the Israeli Law and Society Association Annual Meeting. At the conference, I plan to discuss a recent Israeli-Palestinian film, Ajami. The film examines the complex relationships between Israeli Jews, Israeli Arabs, and Palestinian undocumented workers, in the Ajami neighborhood in Jaffa. The plot is incredibly complicated, and throws the heroes of our story into a web of drugs, violence, political turmoil, and neighborly disputes. It is the perfect film for any criminal justice scholar and practitioner who wants or needs a window into the Israeli criminal underworld.

At the talk, I plan to use scenes from Ajami to uncover and dispel two prevalent myths in Israeli criminal justice: The dichotomy between "crime" and "security" and the romanticization of restorative justice. This post will be devoted to the first of those myths.

Israeli newspapers often report of ongoing police investigations, particularly of violent crime, by pointing out whether the investigation is pursuing a "criminal angle" or a "security angle". The assumption is that these two categories--security crime and ordinary crime--are mutually exclusive, and each requires a different model for understanding and approaching it. These models are different in our perception of them, in our discourse about them, and in the techniques and technologies we apply to them.

"Security crime" is special and takes prevalence over "ordinary crime". When an act is labeled a "security crime", it is placed in the context of the permanent state of emergency in Israel. It is seen not just as a threat among criminals or to the "other", but as a direct threat to "us", the collective Israeli social fabric. As such, it draws in the army as a primary respondent, as well as the increasingly militarized Israeli police (now governed by the Ministry for Internal Security, rather than its former name, the Ministry of Police). Investigations into security crimes bring to life the dilemma of torturing suspects, supposedly forbidden by the Supreme Court, but alive and well (albeit reduced) according to human rights organizations.

The isolation of security crime above all crime, and the approach that it is somehow special and merits special governing techniques, is a feature of the general, ethnicity-based "divide and conquer" taxonomy Israel applies to its residents and their problems. Among some examples of these approach, we can think of the un-Arabizing of Israeli Druze citizens (some of whom serve in the army as military judges and attorneys); the un-Palestinizing of Israeli Arab citizens; and the supposedly impermeable boundaries between race, religion, and degrees of religiousness.

There are several problems with this rhetoric. The first is that it is false. The Israeli crime map, masterfully exposed and illuminated in Ajami, shows that the distinction between security crime and "ordinary" crime is false. Crime occurs across all categories, and the complex motivations behind the crime cannot be reduced to a national/profit-based dichotomy. In fact, the supposedly impermeable boundaries in society constitute optimal conditions for crime to occur: The Israeli car theft industry flourished due to these boundaries, as seventy percent of all stolen cars in Israel found their way to chop shops in the Palestinian authority. Ironically, what reduced much of this activity was a non-security, specified policing unit dedicated specifically to car theft, and unpreoccupied with the security/crime dichotomy.

Another problem with this dichotomy is that it allows the Israeli public to keep criminal activity compartmentalized and labeled, without making the connections between different types of marginalization. That the occupation creates undocumented labor markets plagued by illness and poverty, which in itself gives rise to "regular crime", is conveniently hidden from the overt discussion of "security crime". Moreover, while "security crime", such as the kidnapping of a soldier, serves a Durkheimian function of galvanizing and uniting us, "ordinary crime", especially in the context of organized crime or drugs, creates a sense of alienation and indifference. Not only is this harmful to law enforcement efforts, it is harmful to our national psyche. This approach of alienation reminds me of a phenomenon that Darnell Hawkins discusses in the context of African American crime: While crimes perpetrated by Black offenders against White victims are seen as threatening, crimes within the Black community are treated with relative leniency and indifference.

Some of the implications of this dichotomy can be seen in the realm of criminal courtroom practices and sentencing. Research consistently confirms that Arab defendants are treated worse by the Israeli law enforcement system, starting with arrest rates and ending with sentencing. Is this mere ethnic discrimination? Or does it stem from the suspicion that any crime involving an Arab or Palestinian defendant has some security overtones that require attention and special severity?

But one of the most harmful effects of the dichotomy is related to Jonathan Simon's Governing Through Crime. In the book, Simon argues that one of the perversities of modern society is seeing everything through a lens of crime and victimization. Citizens come to see themselves primarily as potential victims, which affects our modes of living, our choice of vehicles, our recourse to situational crime prevention, and our demonization of cities, urban youth, and the poor. Simon makes the suggestion to shift from models of "war on crime" to "wars" on something else, such as cancer or natural disasters. My critique of Simon's argument builds on the Israeli experience. As opposed to the U.S. experience, in which crime is a metaphor for anything else, in Israel war in itself is the metaphor, for crime among other things. While the boundaries between "security crime" and "ordinary crime" remain in place, the prestige, urgency and importance of security-related concerns creates a warped social universe in which, to gain priority for one's issue, the issue needs to be framed in terms of national security. And so, the police becomes increasingly militarized, in discourse as well as in approaches and technologies; and we launch war against environmental pollution, obesity, and other harms that are analogized to the security survival threat. This survivalist approach creates a culture of fear that magnifies, and sometimes exceeds, its counterpart in the United States.

More on this in our next post.