Neuroscience, Treatment, and Drug Courts

After the morning panels, it seemed that reforming our sentencing scheme was almost as impossible as being in three places at once, which is why I was only able to attend one of the concurrent panels on alternative sentencing. Dr. Emily Murphy, a behavioral neuroscientist working at Stanford, provided us with some fascinating information on the potential of neuroscience in rehabilitation in general, and in drug addiction situations in particular.

One of the problems with the emerging trend of neurolaw, which is otherwise a fascinating and promising field, is the tendency of some professionals to aggrandize its promise and advocate it as a cure-all, magic bullet for social ills. Murphy strongly advised against such simplistic perspectives, and her talk was an excellent example of nuanced, intelligent, sane discourse on the promise and limitations of science. Having briefly examined California’s history with brain-altering therapies, in particular the controversial UCLA Violence Project of the 1970s, Murphy turned to dicussing three avenues in which neuroscience could be helpful in criminal justice enterprises.

The first of these, prediction, focuses on the ability to foresee who might recidivate or benefit from a certain kind of treatment. This is a goal we are, at this point in time, far from achieving; there is no such thing as a single “crime spot” or a “violence spot” in the brain we can identify. One thing some scientists have done is focus on the category of psychopathy; psychopaths, sophisticated and manipulative, are highly overrepresented in the incarcerated population. Current diagnostic tools are not very helpful for screening purposes, since they consist of lengthy interviews by extensively trained people; however, Dr. Kent Kiehl has done some research on this on New Mexico inmates using a portable MRI scanner and is optimistic about its predictive potential.* Another issue is the possibility of predicting dangerousness. The Macarthur foundation has devleoped some multifactorial quantitative measures which, albeit imperfect, might have some predictive value. The key would be to obtain brain mapping, follow up on the inmates after their release from prison to see recidivism patterns, and then use the correlation to offer predictions. It should be remembered, however, that typical analysis of MRI relies heavily on statistical correlations, rather than on identifying a single spot on the brain, and therefore cannot be dispositive. It is also quite difficult to predict whether a certain type of treatment would be suitable for a certain offender; pharmacological treatment is akin to a sledgehammer in that it impacts the entire brain, and therefore often has complicated side effects.

Some treatment options are also being explored. In drug addiction cases, this mostly consists of substitution (replacement of the drug with another drug) and/or direct antagonism (drugs which suppress the craving by creating adverse consequences). Going through the existing substitutes – the well-known methadone and several others – was fascinating; naturally, treatment efficacy is seriously impacted by compliance. Also, some of the antagonizing drugs produce other bad reactions that might, ironically, exacerbate drug use.

Some more extreme treatment measures include psychosurgery and brain stimulation, which share an ugly, frightening history. However, brain stimulation has been found to be effective for treating Parkinson’s disease, and may also be valuable for various addictive conditions. The problem is finding dependable studies, based on ethical research, and published in reputable journals, that would confirm the efficacy of treatment.

The mixed results of treatment led Murphy to advocate a research focus on prevention. Several avenues were explored, such as the possibility of vaccination against addiction (which raises compliance issues) and the potential for actual erasure of drug-related memories, thus eliminating the positive associations to drug use. The problem is, as some audience members pointed out, that drug use becomes such a pervasive aspect of a person’s whole life, that a great many things and situations may be associations.

Murphy closed her talk by emphasizing the fact that neuroscience cannot be, in itself, a magic answer to drug prevention, and that holistic, environmental factors should also be taken into account. The perfect environment for considering all these factors is a drug court, which could create the sort of support system that would enhance the efficacy of any treatment chosen. She also reminded us of the need to be subtle and sophisticated about raising ethical questions – not accepting things at face value, but also not ruling them out with a knee-jerk reaction.

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* props to Nadja Habinek for the link.

Parole: An Overview, and a Personal Story


As prison population grows, the parolee population grows too. A series of pieces on the North County Times has recently highlighted the experiences of parolees and the challenges of parole agents.

One of these articles discusses the impact of a constantly growing parolee population on the ability of parole officers to supervise – and rehabilitate – their clients successfully:

This is California’s parole system, an overworked, underfunded system that is ill-equipped to deal with a crushing caseload of former prisoners who leave prison with a meager $200 allowance to feed, clothe and house themselves.

It’s a caseload that stands to get much worse if a panel of federal judges conducting a trial in San Francisco to address overcrowding orders the early release of nearly 40,000 men and women now behind bars to ease prison overcrowding.

“California’s parole population is now so large and its parole agents so overburdened that parolees who represent a serious public safety threat are not watched closely and those who wish to go straight cannot get the help they need,” said a federally funded report released last month by three experts on the criminal justice system.

Interestingly, the article sees imprisonment and parole as inversely impacting each other. Naturally, the ecology of imprisonment, release, and reimprisonment, is something that merits attention; but is the problem really the growing rate of release, and if so, is the solution for parole officers’ caseload simply to release less people? Curious to hear your thoughts.

Another piece recounts the optimistic story of George Loving, a parolee who managed a group home in Vista. Among other things, he says:

“I didn’t think I was ever gonna change. I was either gonna die on the streets or die in prison. I didn’t grow up with a whole lot of schooling, so I basically only knew one thing: how to steal. I really didn’t know nothing else.

“You know, the (parole) department can make all the changes they want, but if you’re not ready to change, it really doesn’t matter. And then a lot of us don’t be ready to change. And when you basically been spending your life out and in, out and in, you don’t have no education and all that, you only really know that one way. A lot of people, you get my age and you don’t wanna be talking about going back to school and all that. So you just, like, feel hopeless, like maybe this is all I will ever do.

“And then I took a few programs in prison. After sitting there and listening to people tell their stories, I’d sit back and be thinking, ‘Damn, I did some (stuff) like that,’ and ‘Damn, am I that (messed) up and don’t know about it?’ The programs have a lot to do with me wanting to change, because I thought that there was nothing wrong with me. But there was a whole lot wrong with me.

“It just clicked. I was tired. I was tired, I was getting older, my kids was getting bigger. I just got tired. I been doing this since I was 11.

“This job (at a sheet metal company) don’t pay a whole lot of money, but it beats 10 cents an hour or whatever I was getting in prison.

“I just feel good where I’m out now. Sometimes I think about what took me so long to realize that it’s actually not hard to do that right thing. You know, and I really don’t even get all them old thoughts of doing this and doing that no more, you know. Life has just been good. Just living it the best I can.”

Happy Thanksgiving.

Court of Appeal Strikes Down Voter-Approved Restrictions on Released Sex Offenders

(image from Megan’s Law website)

As many readers may know, many states have implemented laws that meticulously regulate the lives of released sex offenders after imprisonment. These restrictions often include a requirement to register on a sex offender database, which can be searched online, and a requirement to notify the community about a paroled sex offender who has moved in. In addition, some states impose residence restrictions on sex offenders.

In 2006, CA voters approved Prop 83 (“Jessica’s Law”), which included a series of such restrictions. Yesterday, the 4th District Court of Appeal found the residence restrictions to be unconstitutional. Per Prop 83, sex offenders were prohibited from living within 2,000 feet of a school or a park; the court, according to the Chronicle, has ruled that Prop 83 is “banishment by another name”.

This ruling is quite interesting, because, as the good folks blogging on the Criminal Appeal blog astutely observe, CA district courts have interpreted other pieces of sex offender related legislation in deference to, and consideration of, the perceived voters’ wishes. For example, the court has interpreted a discrepancy between laws regarding the two-year-commitment of sexually violent predators in favor of the voters’ perceived wishes. It seems, though, that the residency requirements in particular were more controversial and more “ripe for constitutional attack”, as per the other team of good folks blogging on CrimProf Blog.

To get a sense of the extent of the limitations, I recommend you click on the Family Watchdog link, which will provide you with a map of registered sex offenders in your area, as well as information on each and every one of the registered sex offenders. As you’ll see in the maps, which include school locations, residence restrictions might rule out many areas for living, including much of San Francisco.

The Chronicle reports that the 4th District Court ruling will not change the situation for new offenders, but will only impact limitations imposed on people whose crimes were committed prior to Prop 83’s passage.

A couple of other interesting things regarding sex offender registration, which probably would merit posts of their own: The UC Irvine Center for Evidence-Based Corrections’ report on the implementation of GPS tracking of sex offenders, and a fascinating study by J.J. Prescott and Jonah E. Rockoff, which finds that notification and registration laws might have a much different effect on reoffending than lawmakers intended.

Bogeymen? The CDCR’s “Operation Boo”


This story comes in a bit too late for Halloween, but I think it merits some reflection. The CDCR parole department conducted a special operation on Halloween, called “Operation Boo”.

The plan, according to the CDCR, was for parole officers to make sure all sex offenders spend Halloween with their lights out and their doors locked. The reason, according to Tom Hoffman, CDCR Director of Parole, is to “ensure kids are free to have fun without added worries about potential predators and that communities are safe from potential contacts with sex offenders”.

I should probably mention that CA is not the only state to have taken such measures. ABC news report similar measures taken in New York, New Jersey, and Ohio, where parole departments sometimes even require all sex offenders to be present for a special counseling program on Halloween night to make sure they are not on the street. Here’s another interesting report from Rochester.

Given the recent emphasis on creating fact-based parole proceedings, one would expect some factual basis for these broad operations; I have searched the internet for statistics on sex offenses related to Halloween trick-or-treating and have yet to find one such incident. In fact, the only isolated violent Halloween incident I managed to find from recent years was this tragedy in South Carolina, which had nothing whatsoever to do with sex offenders (note, though, the fact that the shooter is described as an ex-felon in the headline).

Moreover, and contrary to public opinion, sex offender recidivism is actually quite low. The Bureau of Justice Statistics reports a 5.3% recidivism rate, and that statistic does not distinguish between child abuse and such things as public exposure or statutory rape. Also, as Chrysanthi Leon, from University of Delaware, has found, punitive measures against sex offenders in California have risen with no connection to actual sex offense rates.

Parental concern on Halloween, while not entirely justified by the facts, is nevertheless understandable. But there is something else at operation here. Halloween is by nature a holiday that makes the veil between our daily lives and their dark side particularly thin. Its Pagan origins can be traced to seasonal memorials of the dead, both in Celtic culture and, as we know, in the widely observed Latin American Dia de los Muertos. As such, it has always been a magnet for dark myths, such as the infamous poisoned candy myths. As the Chicago Tribune explains, these stem from a very small number of incidents, which were, for the most part, committed by relatives of the children. Incidentally, this is similar to the heightened concern about sexual assaults committed by strangers, when most rapes are in fact committed by a person known to the victim.

So, the Halloween policies regarding sex offenders could be the combined product of two powerful cultural narratives: the Halloween mythology and our communities’ fears and concerns about sex offenses, which have not followed factual evidence, but which cannot be discounted. Fear of crime is a very real phenomenon, and in recent years has proven to be a very powerful narrative driving policies that extend much beyond law enforcement. For more on that, I strongly recommend Jonathan Simon’s recent, and excellent, Governing Through Crime, and his fabulous blog.

It is, of course, also difficult to discount the trauma and horrors of victimization. For those looking for a more emotional – possibly even visceral – understanding of the complexities of these multi-sided dynamics, I’ve recently seen the magnificent, and masterfully acted, 2006 movie Little Children, based on Tom Perrotta’s excellent book, which provides some frameworks for understanding the multiple perspectives on sex offender release. My intention in this post is not to argue that these horrors do not exist; I would, however, like us to be more aware of the power of cultural myth and of the differences between facts and fear.

New Parole Violation Approach


In early October, CDCR announced that it was “moving forward with a new evidence-based system for dealing with parole violations.” The new model is designed to rationalize CDCR’s use of prison as a punishment for parole violations, by focusing “custody resources on higher risk offenders while targeting less serious offenders with proven treatment programs that seek to address the root of their problems.”

This sounds like an important development and certainly one worth monitoring. If anything needs rationalization, it’s California’s broken parole system.

For more information on the new parole instrument, see: http://www.cdcr.ca.gov/News/2008_Press_Releases/Oct_3.html

Focus on Proposition 6: How To Deal With Gangs and Other Matters


Proposition 6, or the Safe Neighborhood Act, proposes a variety of changes to the CA criminal justice policy. The main idea behind it is addressing street crime from a “war on crime” perspective.

One of the most important things to keep in mind when considering Prop 6 is its financial implications. Currently, CA is allocating $600,000 to law enforcement, and this proposition will raise this amount by $350,000 (a 50% increase). One source provides the breakdown of these additional funds by topic. The question, therefore, is twofold: whether, as voters, you agree with the philosophy that has driven the proposition, and, if so, whether you are comfortable with its costs.

Some of the major and substantive proposed changes include changing evidence rules to allow hearsay, i.e. a victim’s testimony at the police station, in cases in which the victim is later unavailable to testify. “Unavailability” is broadly defined to include situations in which the victim refuses to testify due to trauma. This idea is not as innovative as it might seem in the American context; other countries have broad exceptions to the hearsay rule, brought about in the conservative 1980s as a response to concerns about organized crime and victim intimidation. It seems that this rationale is also behind the proposed new offense, penalizing any activity of preventing or dissuading victims from testifying and complaining to the police, as well as acts of retaliation against victims.

Prop 6 includes several other new offenses; all of these acts seem to be punishable under current criminal laws, and I expect their proposed criminalization is more of a proclamation than a practical change. These include tampering with one’s electronic monitor; driving or taking away other person’s vehicle (year in jail or fine); and graffiti (year in jail or fine). A point of interest about this last one: if juveniles are unable to pay fines for graffiti, their parents may be responsible.

Which is where we come to one of the main focal points of Prop 6: the issue of gangs. the US in general, and CA in particular, has struggled with gang-related polices for many years now. The philosophy behind much of what we have done so far regarding gangs assumes that gang membership is conducive to crime, and that one way to fight gang-related crime is to fight the gangs themselves, before any crime has been committed.

One such early attempt to control gang-related behaviors involved using criminal law to prohibit gang members from congregating. In Chicago v. Morales, the criminal prohibition for gang members to “loiter in public places” was held to violate the Due Process clause due to its vagueness and the broad discretion it leaves to law enforcement officers. But the newer generation of gang-related policies seems to be much more targeted. My student Adam Maldonado, who has done some research on civil gang injunctions in Los Angeles and in San Francisco, found that they prohibit specific gangs from congregating in specific, carefully-defined areas. These areas include, in San Francisco, the Mission, Hunter’s Point, and Western Addition, including a 3-by-4 block not far from Hastings. He has also found that, before an injunction is applied, the gang needs to be thoroughly researched by law enforcement agencies, so there is “clear and convincing evidence” that it constitutes a “public nuisance” (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1256).

How does Prop 6 impact gang-related policy? To start, it adds provisions that make a gang into a legal entity. A gang can be sued, and Prop 6 adds mechanisms by which its members can be served with papers on behalf of the gang, which simplify the process of injunction and potentially other processes of legal dealings with gangs as such. It also includes a list of 33 offenses, ranging from serious violence offenses to much less serious property offenses, which, when committed by a minor in a gang context, would enable CA to try the minor as an adult. Also, the punishment for a long list of felonies is doubled if these are committed in the context of a gang.

Prop 6 also requires more research into gangs, including a registry; failure by a previously convicted gang member to register might be a felony or a misdemeanor, depending on the content of the original conviction.

Other miscellaneous changes included in Prop 6:
o allocating $10,000,000 for conducting background checks on public housing recipients
o excluding the possibility of bail for illegal aliens charged with violence or gang-related crimes (of particular interest in light of San Francisco’s recent “sanctuary city” expose);
o banning O.R. release for violent offenders without a hearing, and placing limitations on OR for violent offenses in the context of guns, parole violations, and others;
o tightening notification to parole authorities of any parolee behavior, ranging from offenses to technicalities (contrast with Prop 5, which advocates a softening of parole revocation based on technical violations);
o allocating funds for reentry programs; however, by contrast to Prop 5, the emphasis is on monitoring and supervision (through GPS devices, etc).

Stay tuned for the last post in the series, discussing some aspects of Prop 9.

On the Ballot: Propositions 5, 6, and 9


On Nov. 4, Californians will not only get to decide between Obama and McCain, but also to weigh in about their priorities and values regarding law enforcement and corrections. There are three relevant propositions on the ballot, and voters will need to realize that, to a great extent, supporting each of these comes at the others’ expense. Moreover, it is important to pay attention to the fact that each of the propositions espouses a different ideology about criminal propensity and crime control.

Prop. 5: Nonviolent Drug Offenses; Sentencing, Parole and Rehabilitation

Proponents of NORA (Nonviolent Offender Rehabilitation Act) argue that current drug laws do not allocate resources to treating the problem from the source, which is addiction. According to the proposition, the idea is to preserve resources by reserving punitive measures for violent offenders, and focusing on treating non-violent offenders through the diversionary methods set in Prop. 36. This would be accomplished through a reorganization of entities, adding special divisions at CDCR that would address substance abuse, vocation and education. For the purposes of NORA, a “non-violent drug offender” is someone convicted of “unlawful personal use, possession for personal use, or transportation for personal use, or being under the influence of any controlled substance”; the prop excludes “possession for sale, transportation for sale, production, or manufacturing of any controlled substance”.

The options for deferred entry of judgment and for supervision are ehnanced. The proposition is very much in the spirit of therapeutic justice.

Prop. 6: Police and Law Enforcement Funding; Criminal Penalties and Laws

By contrast, this proposition, also called the Safe Neighborhoods Act and the Runner Initiative, is very much in the spirit of Packer’s Crime Control model. The idea is to increase funding for more traditional law enforcement activities. The proposition identifies a few key criminal phenomena and focuses on aggressive prosecution toward them. One such focus is gang activity; under Prop 6, any youth 14 years or older convicted of a “gang-related” felony would be tried as an adult. Other “focus areas” include violence and methamphetamine trafficking.

The proposition would also criminalize tampering with monitoring devices such as electric cuffs, and would require anyone receiving public housing subsidies to undergo annual criminal background checks.

The official text also provides for strengthening police intelligence and “mapping” high risk areas.

Prop. 9: Criminal Justice System; Victims’ Rights; Parole
Prop 9 advocates a third type of justice model, namely, one focusing on victims’ rights in various ways. It includes a CA constitutional amendment as well as regular legislation. Some aspects of Prop 9 include a requirement to pay restitution to victims and a prioritization of these requirements. It also expands victims’ legal rights and their impact not only throughout the adjudication process, but also in parole hearings.

The official text ttt bemoans the faulty implementation of the Victims’ Bill of Rights in 1982, and suggests to improve matters by assuring that victims are informed of developments in the case, including pre-sentence reports, plea bargains, and sentence details. Victims would be notified of bail hearings and would have the right to be heard before a bail decision is made.

In addition, Prop 9 also creates additional limitations on parole, and adds years before parole can be obtained in certain cases.

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This is going to be a tough choice. As David Garland argues in The Culture of Control, our criminological “history of the present” is such that several models of criminal justice coexist, along with their contradictory premises. When pitted one against the other, as in the 2008 ballot, the conflict is not only one of ideologies but one of resources. Shifting more resources toward enforcement would come at the expense of rehabilitation and vice versa. Moreover, hiring personnel with a defined agenda, which would be a necessity under each of these propositions, would impact the spirit of criminal justice in general. So, the choice is not merely between priorities, but between paradigms.