Author: Steven Erickson

A Fascinating Video on Men and Our Culture

It is well known that the largest factor associated with crime is biological: being a man. However, the etiology of crime in most other respects is driven by culture.  NYU Professor Scott Galloway provides a fascinating interview that covers many topics, including the crisis (and it is a crisis) of masculinity in modern America.  Not all will agree with every point he makes, but it is a sobering account of what is wrong and what can be done.

Cannabis and Sex Offenses

As more jurisdictions legalize cannabis for medicinal and recreational use, it is worth considering how the ineludible uptick in its use might affect society.  For most users, this effect has no bearing on criminal justice issues.  But cannabis might have a plausible role in the commission of sex offenses, given its unique effects on sexual drive and practices.  My colleague Michelle Vorwerk and I examine the topic (subscription required) in a forthcoming article in Behavioral Sciences and the Law.

Kentucky’s Misguided Approach on the Death Penalty

The Kentucky legislature has passed HB 269 and sent it to the Governor for approval.  The Bill precludes the death penalty for individuals who had “active symptoms” and a “documented history” of certain enumerated mental disorders at the time of the offense conduct.  The list includes schizophrenia, schizoaffective disorder, bipolar disorder and delusional disorder.  The proposed legislation does not require proof that the “active symptoms” had impaired the defendant’s rationality in any manner during the commission of the crime.

This approach has many problems, but I will briefly discuss two.

First, the term “active symptoms” is not defined and is thus a legislative construction. However, many of these disorder are notable for their negative symptoms.  These include reduced motivation and a diminished experience of pleasure in life.  These are real symptoms and their effects can profoundly adversely affect a person’s quality of life, particularly since they tend to endure even when other symptoms of the disorder have abated.   However, given their nature, it is likely that anyone who has a documented history of one of the enumerated mental disorders will qualify as having “active symptoms” despite their level of lucidity.

Second, there is no logical or just reason why people only with a “documented history” should be treated differently.  Obviously, the legislation envisions fraud as a reason for this requirement.  But it is relatively common for people with these disorders to have no treatment history during the early course of their illness —not to mention that there is no moral reason to treat those who have not had the opportunity for treatment to be subject to a different punishment.

This is a bad Bill whatever your stance is on the death penalty.

The Grim Reality of Yale Law School

The Washington Free Beacon has the story.  The details are sad but expected in today’s world of academia.  Universities are illiberal institutions that are opposed to their core tenets of intellectual exploration and freedom of ideas.  This captures the issue squarely:

Ellen Cosgrove, the associate dean of the law school, was present at the panel the entire time. Though the cacophony clearly violated Yale’s free speech policies, she did not confront any of the protesters.

Perhaps the law school will decry the mob’s activity; but without consequences any statement is worse than mere words since it tacitly condones it.  Rules are only followed if they are enforced, which is obviously not the case at Yale.

Like any issue there are a myriad reasons why higher education has become anathema to its mission of openness to ideas.  But the chief reason is money.  Higher ed is big business.  There is too much money in these once august institutions.  The money has proved to be a corrupting influence, which is painfully obvious.  In 1970, the cost of tuition at Yale college was $2,550 (~$18k in today’s dollars).  Current tuition is close to $60k.  There’s the problem.

Risky Drug Dealing

Mental states are imperative for ascribing blame for most crimes.  We care whether someone does something purposefully, knowingly or recklessly.  Selling heroin is risky and unlawful behavior.  It is, of course, risky because you may get caught and go to prison.  But it is fraught with risk to those who buy the drugs.   People sometime die from the poison being sold to them.

But what if you are told by others that the heroin you are selling is unusually strong? Suppose further, those drugs eventually cause the death of another person?   Is that sufficient evidence of recklessness for a manslaughter conviction?

Apparently not in New York, according to the Court of Appeals in People v. Gaworecki.   New York uses the familiar Model Penal Code definition of recklessness, which requires evidence that a person consciously disregards a substantial and unjustified risk.  Even though the defendant in Gaworecki was told by another that the heroin he sold was exceptionally potent, the Court finds the fact that “[t]he People presented no evidence that defendant had been told that other people had overdosed or died after using the heroin he had sold them” (slip op. p. 8) as persuasive that that the evidence was insufficient for conviction.

Methamphetamine Use: It’s Getting Worse

The new issue of JAMA Psychiatry has an alarming article on trends in illicit methamphetamine use.  Not only are more people using; more are dying:

Among adults aged 18 to 64 years from 2015 to 2019, we found a substantial increase (180%) in overdose deaths involving psychostimulants other than cocaine (largely methamphetamine), but this increase was considerably larger than the growth in the number of adults who reported past-year methamphetamine use (43%), indicating riskier patterns of methamphetamine use.

The toll of drug use is a cancer on our society.

Cannabis and Mental Disorder

I meant to blog about this a few months ago, but time got away from me.  There is an established link between mental disorders and crime.  Of course, most people who have mental disorders do not commit crime, but the link is well established.  For many years, there has been mounting evidence that cannabis use, particularly during adolescence, increases the risk of developing schizophrenia.  There is an ongoing debate about whether this is a causal or correlational relationship.

Back in July, JAMA Psychiatry published a population-based study from Denmark.  One of the great benefits of the Nordic countries is the ability to conduct population studies due to their public health system structure.  The study, Development Over Time of the Population-Attributable Risk Fraction for Cannabis Use Disorder in Schizophrenia in Denmark, shows that as the prevalence of Cannabis Use Disorder increased, so too did schizophrenia.   As the authors conclude, the results from these longitudinal analyses show the proportion of cases of schizophrenia associated with cannabis use disorder has increased 3- to 4-fold during the past 2 decades.

Another recent study revealed a rise in congenital anomalies among newborns has been observed in Colorado and Washington since 2013, the first states to legalize adult recreational use.  We are in uncharted territory when it comes to cannabis, regardless of one’s opinion about its legal status.

The Legalization of Marijuana and Its Link to Psychosis

A growing body of scientific studies suggest that marijuana use increases the risk of developing psychotic illnesses such as schizophrenia.  There is an ongoing debate among scientists regarding the exact nature of the risk, including whether the risk is largely confined to those who are already genetically predisposed to these illnesses.  But many scientists have raised the concern whether legalization of marijuana might lead to increases in these illnesses.

Which leads me to the current issue of JAMA Psychiatry, with the viewpoint article Balancing the Public Health Costs of Psychosis vs Mass Incarceration With the Legalization of Cannabis.  In essence, the article argues that marijuana prohibition is a unique risk factor for the development of psychotic illness.  How so, you may ask?   Let’s take a look.

First the authors make the observation that legalization of marijuana is a trend among the states.  They then make the very reasonable claim that marijuana use is associated with an increased risk of psychotic illness.  Then the authors state:

The US has the world’s highest incarceration rate, at 655 per 100 000 adults (followed by El Salvador at 590 per 100 000) and the world’s largest total prison population, at 2 121 600 (followed by China at 1 700 000), according to the World Prison Brief database. The criminalization of cannabis is a significant contributor with approximately 8 million cannabis-related arrests between 2001 and 2010, most owing to possession. Cannabis possession accounts for 36.8% of all drug use arrests in the US according to 2018 US Federal Bureau of Investigation data.

So, as written, the reader is to believe that many marijuana users are languishing in jail for mere possession.  If we dig into the some of the latest DOJ data, however, we learn that about 14% of the state prison population are serving time for drug offenses — and that includes both possession and distribution offenses.   To be sure, it is a nontrivial number of citizens, but anyone who works in the trenches knows that personal possession of small amounts of marijuana does not lead to a lengthy (if any) prison sentence.

Which matters as the authors then state:

Although psychosis is not the only form of psychological distress that may result from incarceration, it is worth considering the consequences of incarceration as a potential trauma or stressor that may contribute to the onset or exacerbation of psychosis given that psychosis risk is a primary argument raised against the legalization of cannabis.

Continue reading . . .

The Muddy Waters of Miller

Today the Court heard arguments in Jones v. Mississippi.  Although I have not read the briefs in detail, the central issue is whether the “permanent incorrigibility” dicta announced in the landmark case of Miller v. Louisiana requires a finding of that fact by the trial court in order to sentence a juvenile to LWOP.  The case presents two issues, that speak to the difficulty of the Miller holding.

First, and perhaps most apparent, is that if the Court holds such a finding is required, how would it be defined and applied?  Reasonable people can differ in what constitutes permanent incorrigibility and as the Court has said previously, it is not bound by psychological science in defining legal concepts.

Thank goodness.

The obvious first question is whether this finding is based primarily on predictions of a juvenile defendant’s future conduct.  This is problematic because although the scientific literature has shown that some juveniles are life persistent offenders, it remains an arduous task determining which wayward youths will become enduring recidivists.  This is particularly the case if we are to discount the offense conduct and examine other factors, such as adverse childhood experiences, which appear to elevate risk in many juvenile offenders – although nowhere near what past offense conduct does.

The next question is what do we mean by “permanent” incorrigibility?  Life is long for most of us.  One of the most robust findings within criminology is that recidivism risk declines with age.  Even among the most assiduous offenders, criminal behavior is rare in the golden years.  If permanent incorrigibility means something else, such as a person’s overall productive life, difficult definitional questions remain.   Presumably, any standard established by the Court would rely on expert testimony about future risk.  But there are good reasons to suspect that experts’ predictions would be wanting since it is challenging to forecast behavior many decades into the future.

But the real problem in Jones lies with the Court’s past work in Miller.   In Miller, the Court held that LWOP for juveniles violated the federal constitution because it ran afoul of the Court’s determination that juveniles deserve less punishment than adults due to their inherent immaturity and unfledged sense of responsibility, vulnerability to peer pressure, and underdeveloped character.  The Court imbued these as developmental stages that invariably accompany the transition between adolescence and adulthood.

Yet these are not stages insomuch as they are skill sets acquired by most adolescents as they pass into adulthood.   The process of becoming an adult entails understanding and accepting responsibility for one’s behavior, becoming an independent agent, and forming one’s own character.  What life-course-persistent offenders lack throughout their life are exactly these traits of lawful living.  These culpability exceptions implicated in excusing LWOP for juveniles are what makes these kids so dangerous and incorrigible.

The Court has dug itself into a difficult place and my guess is that it will devise a rule that relies on psychological science to provide a veneer of truth regarding who deserves mercy or redemption.