Author: Steven Erickson

The Persistent Myths of Mass Incarceration

by · Jan 18, 2024 1:41 pm

Professor Paul Robinson and a fellow colleague from Penn have posted an in-depth article that is worth a read.  The abstract, sans the roadmap:

Few claims have won such widespread acceptance in legal academia as the “mass incarceration” narrative: the idea that the rise in America’s prison population over the last half century was fueled largely by the needless and unjust imprisonment of millions of criminal offenders due to punitive changes in sentencing. To many academics and activists, the question is not how accurate the mass incarceration narrative is, but how mass incarceration can be ended. This Article argues the “mass incarceration” narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding of America’s past and present carceral practices. A more accurate understanding is needed to produce effective reform.

The central myth of the mass incarceration narrative is that exceptional and unjustified punitiveness largely explains America’s significant increase in prison population since the 1960s. This explanation overlooks the numerous non-sentencing factors that increased incarceration: a near doubling in U.S. population, higher crime rates, increased justice system effectiveness, deinstitutionalization of the mentally ill, new and tightened criminalizations, worsening criminal offender histories, and more. While this Article makes no attempt at statistical precision, these non-sentencing factors can easily explain most of America’s elevated incarceration compared to the 1960s—a fact in direct conflict with the mass incarceration narrative. Additionally, while some punishments have increased in severity since the 1960s, most of these increases are likely to be seen as moving sentences closer to what the community – and many incarceration reformers – would believe is appropriate and just, as in cases of sexual assault, domestic violence, stalking, human trafficking, firearm offenses, and child pornography, among others. Continue reading . . .

Cannabis Field Sobriety Tests

by · Aug 3, 2023 5:26 am

As cannabis use becomes more commonplace, given state legalization efforts, a pressing issue is enforcement of impaired driving laws.  A new study published in JAMA Psychiatry, however, suggests high false positives rates are a problem with field sobriety tests for cannabis intoxication.  From an accompanying commentary:

In this issue of JAMA Psychiatry, Marcotte et al1 report that field sobriety tests (FSTs) as administered by highly trained police officers are insufficient to detect cannabis-induced impairment in a double-blind, placebo-controlled, parallel randomized clinical trial involving a large sample of 184 cannabis users. Although the group receiving active doses of Δ-9-tetrahydrocannabinol (THC), the active ingredient in cannabis, performed worse on the FSTs as compared with the placebo group; about half of the participants in the placebo group were classified as impaired. These findings are in line with previous placebo-controlled studies that also reported high false-positive FST rates under placebo. The legal implication of these findings can be major given that FSTs are currently part of the evaluation protocol in North America to detect drivers who are cannabis impaired. Yet, the lack of sensitivity of FSTs to detect THC-impaired individuals does not come as a big surprise, as FSTs have primarily been validated to detect gross alcohol impairment at high (more than 0.10%) blood alcohol concentrations. To add to this problem, there is no cannabis equivalent of a breathalyzer to verify exposure induced impairment, as trace amounts of THC in biomarkers correlate poorly with cannabis-induced behavioral impairment.

The need for a reliable method to assess cannabis intoxication is desperately needed.

 

A Fascinating Video on Men and Our Culture

by · Dec 1, 2022 7:16 am

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

by · Apr 21, 2022 3:54 pm

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

by · Mar 30, 2022 11:55 am

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

by · Mar 17, 2022 5:25 am

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

by · Dec 8, 2021 5:34 am

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

by · Dec 2, 2021 6:48 am

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

by · Nov 22, 2021 11:27 am

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

by · Mar 24, 2021 5:11 am

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 . . .