AROUND the world, courthouses are adorned with a statue of a blindfolded woman holding a set of scales and a sword: Justice personified. Her sword stands for the power of the court, her scales for the competing claims of the petitioners. The blindfold (a 15th-century innovation) represents the principle that justice should be blind. The law should be applied without fear or favour, with only cold reason and the facts of the case determining what happens to the accused. Lawyers, though, have long suspected that such lofty ideals are not always achieved in practice, even in well run judicial systems free from political meddling. Justice, say the cynics, is what the judge had for breakfast. Now they have proof.
A paper in the Proceedings of the National Academy of Sciences describes how Shai Danziger of Ben-Gurion University of the Negev and his colleagues followed eight Israeli judges for ten months as they ruled on over 1,000 applications made by prisoners to parole boards. The plaintiffs were asking either to be allowed out on parole or to have the conditions of their incarceration changed. The team found that, at the start of the day, the judges granted around two-thirds of the applications before them. As the hours passed, that number fell sharply (see chart), eventually reaching zero. But clemency returned after each of two daily breaks, during which the judges retired for food. The approval rate shot back up to near its original value, before falling again as the day wore on.
To be sure, mealtimes were not the only thing that predicted the outcome of the rulings. Offenders who appeared prone to recidivism (in this case those with previous convictions) were more likely to be turned down, as were those who were not in a rehabilitation programme. Happily, neither the sex nor the ethnicity of the prisoners seemed to matter to the judges. Nor did the length of time the offenders had already spent in prison, nor even the severity of their crimes (as assessed by a separate panel of legal experts). But after controlling for recidivism and rehabilitation programmes, the meal-related pattern remained.
The researchers offer two hypotheses for this rise in grumpiness. One is that blood-sugar level is the crucial variable. This, though, predicts that the precise amount of time since the judge last ate will be what matters. In fact, it is the number of cases he has heard since his last break, not the number of hours he has been sitting, which best matches the data. That is consistent with a second theory, familiar from other studies, that decision making is mentally taxing and that, if forced to keep deciding things, people get tired and start looking for easy answers. In this case, the easy answer is to maintain the status quo by denying the prisoner's request.
Two further findings buttress the idea that it is the psychological load of decision making which matters. First, the average unfavourable decision (unfavourable to the prisoner, that is) took less time to arrive at (5.2 minutes) than the average favourable one (7.4 minutes). Second, it also took more time to explain. Written verdicts in favourable rulings averaged 90 words, compared with just 47 for unfavourable ones.
In truth, these results, though disturbing, are unsurprising. Judges may be trained to confine themselves to the legally relevant facts before them. But they are also human, and thus subject to all sorts of cognitive biases which can muddy their judgment. Other fields are familiar with human imperfectibility, and take steps to ameliorate it. Pilots, for instance, are given checklists to follow, partly in order to combat the effects of fatigue. Lorry drivers in the European Union are not allowed to drive for more than four and a half hours without taking a break. Dr Danziger's co-author, Jonathan Levav of Columbia University in New York, wonders whether the law should consider similar arrangements. Some, of course, already do. English judges, legendary for their prandial proclivities, are way ahead of him.
Gun Laws
Take a walk around Waikiki and it's only a matter of time until someone hands you a flyer of scantily clad women clutching handguns, overlaid with English and maybe Japanese text advertising one of the many shooting ranges in Honolulu. The city's largest, the Royal Hawaiian Shooting Club, advertises instructors fluent in Japanese, which is also the default language of its website. For years, this peculiar Hawaiian industry has explicitly targeted Japanese tourists, drawing them away from beaches and resorts into shopping malls, to do things that are forbidden in their own country.
Waikiki's Japanese-filled ranges are the sort of quirk you might find in any major tourist town, but they're also an intersection of two societies with wildly different approaches to guns and their role in society. Friday's horrific shooting at an Aurora, Colorado, movie theater has been a reminder that America's gun control laws are the loosest in the developed world and its rate of gun-related homicide is the highest. Of the world's 23 "rich" countries, the U.S. gun-related murder rate is almost 20 times that of the other 22. With almost one privately owned firearm per person, America's ownership rate is the highest in the world; tribal-conflict-torn Yemen is ranked second, with a rate about half of America's.
But what about the country at the other end of the spectrum? What is the role of guns in Japan, the developed world's least firearm-filled nation and perhaps its strictest controller? In 2008, the U.S. had over 12 thousand firearm-related homicides. All of Japan experienced only 11, fewer than were killed at the Aurora shooting alone. And that was a big year: 2006 saw an astounding two, and when that number jumped to 22 in 2007, it became a national scandal. By comparison, also in 2008, 587 Americans were killed just by guns that had discharged accidentally.
Almost no one in Japan owns a gun. Most kinds are illegal, with onerous restrictions on buying and maintaining the few that are allowed. Even the country's infamous, mafia-like Yakuza tend to forgo guns; the few exceptions tend to become big national news stories.
Japanese tourists who fire off a few rounds at the Royal Hawaiian Shooting Club are breaking three separate Japanese laws -- one for holding a handgun, one for possessing unlicensed bullets, and another violation for firing them -- the first of which alone is punishable by one to ten years in jail. Handguns are forbidden absolutely. Small-caliber rifles have been illegal to buy, sell, or transfer since 1971. Anyone who owned a rifle before then is allowed to keep it, but their heirs are required to turn it over to the police once the owner dies.
The only guns that Japanese citizens can legally buy and use are shotguns and air rifles, and it's not easy to do. The process is detailed in David Kopel's landmark study on Japanese gun control, published in the 1993 Asia Pacific Law Review, still cited as current. (Kopel, no left-wing loony, is a member of the National Rifle Association and once wrote in National Review that looser gun control laws could have stopped Adolf Hitler.)
To get a gun in Japan, first, you have to attend an all-day class and pass a written test, which are held only once per month. You also must take and pass a shooting range class. Then, head over to a hospital for a mental test and drug test (Japan is unusual in that potential gun owners must affirmatively prove their mental fitness), which you'll file with the police. Finally, pass a rigorous background check for any criminal record or association with criminal or extremist groups, and you will be the proud new owner of your shotgun or air rifle. Just don't forget to provide police with documentation on the specific location of the gun in your home, as well as the ammo, both of which must be locked and stored separately. And remember to have the police inspect the gun once per year and to re-take the class and exam every three years.
Even the most basic framework of Japan's approach to gun ownership is almost the polar opposite of America's. U.S. gun law begins with the second amendment's affirmation of the "right of the people to keep and bear arms" and narrows it down from there. Japanese law, however, starts with the 1958 act stating that "No person shall possess a firearm or firearms or a sword or swords," later adding a few exceptions. In other words, American law is designed to enshrine access to guns, while Japan starts with the premise of forbidding it. The history of that is complicated, but it's worth noting that U.S. gun law has its roots in resistance to British gun restrictions, whereas some academic literature links the Japanese law to the national campaign to forcibly disarm the samurai, which may partially explain why the 1958 mentions firearms and swords side-by-side.
Of course, Japan and the U.S. are separated by a number of cultural and historical difference much wider than their gun policies. Kopel explains that, for whatever reason, Japanese tend to be more tolerant of the broad search and seizure police powers necessary to enforce the ban. "Japanese, both criminals and ordinary citizens, are much more willing than their American counterparts to consent to searches and to answer questions from the police," he writes. But even the police did not carry firearms themselves until, in 1946, the American occupation authority ordered them to. Now, Japanese police receive more hours of training than their American counterparts, are forbidden from carrying off-duty, and invest hours in studying martial arts in part because they "are expected to use [firearms] in only the rarest of circumstances," according to Kopel.
The Japanese and American ways of thinking about crime, privacy, and police powers are so different -- and Japan is such a generally peaceful country -- that it's functionally impossible to fully isolate and compare the two gun control regiments. It's not much easier to balance the costs and benefits of Japan's unusual approach, which helps keep its murder rate at the second-lowest in the world, though at the cost of restrictions that Kopel calls a "police state," a worrying suggestion that it hands the government too much power over its citizens. After all, the U.S. constitution's second amendment is intended in part to maintain "the security of a free State" by ensuring that the government doesn't have a monopoly on force. Though it's worth considering another police state here: Tunisia, which had the lowest firearm ownership rate in the world (one gun per thousand citizens, compared to America's 890) when its people toppled a brutal, 24-year dictatorship and sparked the Arab Spring.
Too Many Prisoners
The Justice Department in its recent annual report on federal sentencing issues wisely acknowledged that public safety can be maximized without maximizing prison spending. As it noted, the growing federal prison population, now more than 218,000 inmates, and a prison budget of almost $6.2 billion are “incompatible with a balanced crime policy and are unsustainable.”
The department calls for reforms “to make our public safety expenditures smarter and more productive.” Yet it fails to address sentencing changes that should be made, which would significantly reduce the problem of overincarceration in federal prisons.
Last fall, the United States Sentencing Commission issued a comprehensive report that said mandatory minimum sentences are often “excessively severe,” especially for people convicted of drug-trafficking offenses, who make up more than 75 percent of those given such sentences. Mandatory minimums have contributed in the last 20 years to the near tripling of federal prisoners, with more than half the prisoners now in for drug crimes.
There is no good evidence that long mandatory sentences deter crime. There is very good evidence that older prisoners (45 and up) are the least dangerous and that many should be released.
The Justice Department report does not mention mandatory minimum sentences or their major contribution to overincarceration in federal prisons. And it fails to urge Congress to make repealing mandatory minimums a high priority, as it should. It does not mention releasing older prisoners, which the Federal Bureau of Prisons has the power to do.
Nor does it mention adjusting its own policies on drug cases so it would put away fewer offenders not considered dangerous. About 25,000 people were convicted of federal drug offenses last year, almost the same number as during the Bush administration in 2008 — a substantial proportion in low-level roles of drug trafficking, according to the Sentencing Commission.
The department sensibly calls for more cost-effective prison policies, but that would require reconsideration of the basic purpose of punishment. The unsustainable federal prison budget and the rising inmate population reflect the country’s long, wasteful embrace of retribution. Both numbers are higher than they need to be for public safety.
Jeremy Clarkson on Laws
While on a tour of a factory in South America recently, David Cameron appeased the nation’s meat-eaters by saying that at some point in the next parliament there might possibly be a referendum on whether Britain stayed in the European Union.
Isolationism is very popular at the moment. Not just with middle England but with the Scotch, too, and the Corns — everyone. If you gave people in Leicester the chance to form their own government and their own state, I bet you any money a majority would say, “Ooh, yes please.”
Certainly the idea of Chipping Norton breaking free from the shackles of Westminster and Brussels is very appealing. There is little crime, so we wouldn’t need a police force. Or an army. Many people own guns, so we’d easily be able to hold out should we be attacked by Stow-on-the-Wold or Moreton-in-Marsh. We have meat, trout and vegetables. We could trade jam for oil. And we have wind for power.
Taxes would be very low, since we would only really need a school, two doctors and a fire station. And we could introduce some new laws relevant to our way of life. We could make it illegal to be Piers Morgan or to harbour a badger. Campanology would be outlawed, too, along with motorcycles. On the face of it, then, life would be peachy.
To understand where all of this might end, you need to go back to the 1850s in what at the time was known as “darkest Africa”. British explorers stumbled on a tribe living on the tranquil northern shores of Lake Victoria. People had been living there for tens of thousands of years, assuming that they were the only people on earth. They had never met anyone from another tribe, let alone an Arab or a white man. And it was interesting to see how their society had developed.
They had not invented the wheel or the plough. But they had invented beer. And they could carry it around in vessels woven exquisitely from reeds. They also had fine cloth and knew to wash their hands in the lake before eating. They had also come up with the idea of extreme violence.
With no one looking, how long would it be before we were hanging people for having a beard If a child was making too much noise over lunch, it would be beheaded. If it got up without clearing its plate? That was a beheading offence, too. Beheading was their society’s equivalent of the naughty step. It was also a cure for snoring, nagging or looking at someone in a funny way.
It could be worse, though. You could have ended up as one of the king’s wives. They were kept bound on the floor and forced to drink milk for eight hours a day, non-stop.
This ensured that when the head honcho fancied a spot of rumpy-pumpy, the girl he selected would be nice and fat. Kate Moss? She would have been beheaded before she’d reached puberty.
Now remember, this was the middle of the 19th century. Elsewhere in the world there were steam engines and ladies with parasols taking tea in the park. People in India wore clothes made in Huddersfield. People in Louisiana drank tea from Ceylon. And yet in the middle of it all was a civilisation in which you could be beheaded for talking with your mouth full.
What stopped it was the arrival of other people. People who said, “Yes, cutting your daughter’s head off is certainly one way of teaching her not to use her fingers at meal times. But have you tried a stern word? Or a smacked bottom, because where we come from that works quite well, too?”
This argument is still relevant today. What do you think stops American police forces waterboarding pretty much everyone they take into custody? The answer has nothing to do with the inner goodness of a man’s soul. It’s the sure-fire knowledge that other people are watching.
Why do you think Robert Mugabe is such a monster? Because Zimbabwe is cut off. He can do as he pleases because he doesn’t have people from other places raising an eyebrow and saying, “Are you sure?”
Closer to home we have the Isle of Man. Because it’s not really in the EU and not really part of the UK and because people from abroad are viewed by locals as Romulan stormtroopers, it was 1992 before they stopped birching homosexuals in front of a baying mob. And why? Because that’s when satellite TV from other countries showed them that homosexuality wasn’t a lifestyle choice and that birching was a bit last week. Maybe one day soon its idiotic government will also learn that it can’t just go around confiscating people’s gardens.
Most governments in the civilised world are constitutionally bound by checks and balances to ensure they don’t do something idiotic. And what are those checks and balances? They usually have fancy names but, actually, they all boil down to the same thing: other people.
In Britain every single poll on the death penalty suggests that the vast majority of us would like to see the gallows reintroduced. And, of course, if we weren’t in the EU, a government would be free to bring it back.
But what for? At first, it would be premeditated murder and rape. However, with no one looking, how long would it be before we were hanging people for having a beard, or for shouting at meal times, or for being Peter Mandelson? How long before disaffected Muslim youths started disappearing? And before child molesters and bell-ringers were hung from lampposts by lynch mobs?
Take the case of Abu Hamza. Every fibre of your being wanted him gone and you didn’t really care where. If he’d ended up becoming part of a new flyover on the M6, you’d have been relieved. But would that have been a good thing? Really?
We need to be in Europe, to trade with the Germans and holiday in France. We need to be Spain’s checks and Sweden’s balances. For the sake of decency and the advancement of science, we need to share ideas, to compromise, to be a team. We need to look after one another. Not the Greeks, though. They can get lost.
Juries
Trial by jury — “the lamp which shows that freedom lives” in Lord Devlin’s memorable phrase — is under attack. Tomorrow parliament will debate a bill that almost abolishes jury trials in libel cases, while the seemingly moronic questions asked by the Vicky Pryce jurors have sparked demands for the abolition of juries, or at least to subject jurors to IQ tests. The right not to be imprisoned for more than a year except after a “guilty” verdict by “the gang of 12” resonates in British history, but is it now time to embrace European rationality and leave the delivery of justice entirely to lawyers?
Jury independence was won in the 17th century in free speech cases. In 1670 a jury foremanned by Edward Bushell refused a judge’s direction to convict two Quakers for sedition, despite being locked up in their jury room for two nights without food, water or a chamber pot. Releasing them on habeas corpus the chief justice declared that a jury was entitled to act according to its conscience, irrespective of judicial direction or expectation. Bushell’s case is the foundation of the constitutional independence of the jury: it can do justice whatever the law may be.
This is not something that judges like to remember. To the seemingly silliest question asked by the Pryce jurors — can the verdict be based on a reason not presented to the court, unsupported by facts and evidence? — the correct answer is: yes, it can, if the jurors’ consciences so dictate. It was the answer given through gritted teeth by Lord Mansfield in 1784 to a jury that wanted to acquit: in the jurors’ duty of “blending law and fact” they might follow “the prejudices of their affections and passions”.
It is a sad reflection on the British press that it appears blind to the most immediate threat to freedom of speech — the removal of its right to jury trial when sued for defamation. This right should, indeed, be extended to enable juries to try privacy cases. Max Mosley, for example, was libelled by the News of the World when it accused him of holding a “Nazi sex orgy” (it turned out to have been a very English sex orgy). By suing for breach of privacy he cleverly removed the newspaper’s right to jury trial. The judge, controversially, held that Mosley’s privacy had been invaded but a jury might not have agreed. If it had, its decision would have been much more acceptable. Trial by jury of civil claims of invasion of privacy would provide not only socially acceptable verdicts but also an effective deterrent to conduct that 12 good men and women consider intolerable.
It might be objected that the jury has done its historical work: we no longer have dragnet laws, political prosecutions or morally antiquated crimes. This places too much trust in parliament not to pass bad laws and in prosecutors not to apply them. Clive Ponting, the civil servant who broke the Official Secrets Act to reveal the truth about the sinking of the Belgrano, owed his acquittal to what Americans, always more honest about these issues, call “jury nullification” — the jurors’ right, as an act of conscience, to acquit.
Even in run-of-the-mill cases in crown courts today up to 10% of acquittals may be “sympathy verdicts” because juries decide the police have been oppressive or the defendant is more sinned against than sinning.
This may sound irrational to European ears: juries were abolished by Napoleon and the right to jury trial is unmentioned in the European convention on human rights. But it would have pride of place if ever we were to replace it with a British bill of rights.
The problem with modern juries is that their workings are swathed in secrecy and it is impossible to argue — for or against them — with empirical evidence.
The law that threatens jurors with up to two years in jail if they open their mouths came as a panic reaction after the New Statesman published the revelations by a juror about the acquittal of Jeremy Thorpe.
The star prosecution witness — a former Liberal MP — had before the trial been paid £25,000 for his story by The Sunday Telegraph, with a £25,000 bonus if he managed to secure Thorpe’s conviction. The juror revealed that his colleagues could not convict Thorpe on this tainted evidence.
The attorney-general irrationally decided to prosecute — not the Telegraph for perverting justice, but the New Statesman. In its defence I displayed a collection of memoirs written about jury service by the likes of Graham Greene, Alan Coren and Simon Hoggart and the High Court ruled that there was no law against jurors writing memoirs. This ruling provoked “QC MPs” in parliament to rush through a law that made it a serious crime. If we are to understand the jury system this law will have to be repealed — or at least reduced to a ban on jurors selling, rather than telling, their experiences.
Politicians have an insatiable appetite for tinkering with the jury system, usually without justification. Once defendants could know jurors’ occupations — a right abolished by a Conservative government lest trade unionists on trial could use their right of challenge to get more trade unionists on the panel. Then there were scare stories about how defence barristers were challenging “intelligent looking” jurors, so the right to challenge was abolished. This was nonsense — intelligent jurors are more likely to find reasonable doubt.
During the Blair years some bright spark had the notion that more bad people would be convicted if lawyers and policemen and even judges were obliged to sit on juries. Of course it had no impact on the conviction rate. I was one of the first recorders (part-time judges) called for jury service, warned by a letter from the chief justice that judges should do their best not to let on to fellow jurors. As soon as we entered the jury room, one convivial fellow broke the ice by saying “let’s go round the room and tell each other what we do”. (I said I was a “grievance counsellor”, which was arguably true.)
My experience as a juror was instructive. Like many judges I used to give my directions on law to jurors in the late afternoon and sum up the facts when they were fresh the next morning. Having sat on a hard bench all day concentrating on evidence, by 3.30pm I had difficulty following the legal directions that I had often given myself. Perhaps judges should not give directions on law late in the afternoon? Thanks to the ban on jury research we will never have the empirical basis to know and to change.
Juries make mistakes. They failed to see through perjurious policemen in the Birmingham Six and other Irish miscarriage cases and I do think that defendants faced with public prejudice whipped up by the popular press should have a right to choose trial by judge alone. Occasionally and inevitably you get objectionable juries (such as the one that sought guidance from a Ouija board) and objectionable jurors. But by and large most do not conform to Hilaire Belloc’s cynical definition of a jury as “12 persons chosen at random to decide which party has the better lawyer”.
The Americans, so much more rational about adversary trial, have developed ways of weaning out biased and incompetent jurors in selection procedures fair to both sides. How absurd it is, for example, to empanel jurors who cannot grasp the English language. Or who cannot read it in a case requiring the contemplation of documents or the study of financial transactions. Allowing some gentle questioning by the judge or by counsel would identify potential problems of bias or misunderstanding.
Such reforms would startle traditionalists and dissatisfy cynics. But before parliament decides tomorrow to dump the body that has played such a historic role in the struggle for press freedom, it might at least amend the Contempt of Court Act so that we could understand how juries work. Any who think the criminal law would be better off without juries should visit countries that have never had them. Take Georgia, where the judges boast of convicting 99.6% of all defendants, or Ukraine where they convict 99.8%. It is no bad thing to have a system that permits the possibility of innocence and allows mercy to season justice.
Lawyer
What is it like to be the defense attorney of someone you strongly believe to have commited the crime? A whole hell of a lot better than being the defense attorney of someone you strongly believe did not commit the crime.
Representing the guilty is pretty straightforward. The burden is on the government to prove their case beyond a reasonable doubt. If your client tells you they committed the act, you look for an affirmative defense (e.g. self-defense) that is supported by the evidence. If they haven't admitted the act to you, then you do your best to hold the government to its proof by impeaching its witnesses, questioning the foundations of its evidence, and arguing against the inferences being made.
Representing the innocent, however, is completely different. In addition to the above, you also have a constant gnawing at you that no matter what you do, it isn't going to be enough. The burden has shifted to you to prove their innocence, and it is much, much harder to prove a negative (that someone didn't do something) than it is to prove someone did something. The case will easily consume you, trumping everything else in your life because someone you have become convinced is truly innocent is at risk of going to prison or facing the death penalty and you are the only one that can prevent it.
If they are convicted, you then get the pleasure of trying to go to sleep each night knowing that if you had just done a little bit more, perhaps asked a different question of a witness or spent just a few more hours digging through documents looking for exhibits, the outcome would have been different and the innocent would be free. It becomes your fault that the innocent person is in prison, even though you did all you could to prevent it. You should have done more. Why didn't you do more? What could possibly have been more important than that? The case gnaws at you for months, years even decades and becomes one of the things that you will never, ever forget.
Prostitution
STREET-WALKERS; kerb-crawlers; phone booths plastered with pictures of breasts and buttocks: the sheer seediness of prostitution is just one reason governments have long sought to outlaw it, or corral it in licensed brothels or “tolerance zones”. NIMBYs make common cause with puritans, who think that women selling sex are sinners, and do-gooders, who think they are victims. The reality is more nuanced. Some prostitutes do indeed suffer from trafficking, exploitation or violence; their abusers ought to end up in jail for their crimes. But for many, both male and female, sex work is just that: work.
This newspaper has never found it plausible that all prostitutes are victims. That fiction is becoming harder to sustain as much of the buying and selling of sex moves online. Personal websites mean prostitutes can market themselves and build their brands. Review sites bring trustworthy customer feedback to the commercial-sex trade for the first time. The shift makes it look more and more like a normal service industry.
It can also be analysed like one. We have dissected data on prices, services and personal characteristics from one big international site that hosts 190,000 profiles of female prostitutes (see article). The results show that gentlemen really do prefer blondes, who charge 11% more than brunettes. The scrawny look beloved of fashion magazines is more marketable than flab—but less so than a healthy weight. Prostitutes themselves behave like freelancers in other labour markets. They arrange tours and take bookings online, like gigging musicians. They choose which services to offer, and whether to specialise. They temp, go part-time and fit their work around child care. There is even a graduate premium that is close to that in the wider economy.
The invisible hand-job
Moralisers will lament the shift online because it will cause the sex trade to grow strongly. Buyers and sellers will find it easier to meet and make deals. New suppliers will enter a trade that is becoming safer and less tawdry. New customers will find their way to prostitutes, since they can more easily find exactly the services they desire and confirm their quality. Pimps and madams should shudder, too. The internet will undermine their market-making power.
But everyone else should cheer. Sex arranged online and sold from an apartment or hotel room is less bothersome for third parties than are brothels or red-light districts. Above all, the web will do more to make prostitution safer than any law has ever done. Pimps are less likely to be abusive if prostitutes have an alternative route to market. Specialist sites will enable buyers and sellers to assess risks more accurately. Apps and sites are springing up that will let them confirm each other’s identities and swap verified results from sexual-health tests. Schemes such as Britain’s Ugly Mugs allow prostitutes to circulate online details of clients to avoid.
Governments should seize the moment to rethink their policies. Prohibition, whether partial or total, has been a predictable dud. It has singularly failed to stamp out the sex trade. Although prostitution is illegal everywhere in America except Nevada, old figures put its value at $14 billion annually nationwide; surely an underestimate. More recent calculations in Britain, where prostitution is legal but pimping and brothels are not, suggest that including it would boost GDP figures by at least £5.3 billion ($8.9 billion). And prohibition has ugly results. Violence against prostitutes goes unpunished because victims who live on society’s margins are unlikely to seek justice, or to get it. The problem of sex tourism plagues countries, like the Netherlands and Germany, where the legal part of the industry is both tightly circumscribed and highly visible.
The failure of prohibition is pushing governments across the rich world to try a new tack: criminalising the purchase of sex instead of its sale. Sweden was first, in 1999, followed by Norway, Iceland and France; Canada is rewriting its laws along similar lines. The European Parliament wants the “Swedish model” to be adopted right across the EU. Campaigners in America are calling for the same approach.
Sex sells, and always will
This new consensus is misguided, as a matter of both principle and practice. Banning the purchase of sex is as illiberal as banning its sale. Criminalisation of clients perpetuates the idea of all prostitutes as victims forced into the trade. Some certainly are—by violent partners, people-traffickers or drug addiction. But there are already harsh laws against assault and trafficking. Addicts need treatment, not a jail sentence for their clients.
Sweden’s avowed aim is to wipe out prostitution by eliminating demand. But the sex trade will always exist—and the new approach has done nothing to cut the harms associated with it. Street prostitution declined after the law was introduced but soon increased again. Prostitutes’ understandable desire not to see clients arrested means they strike deals faster and do less risk assessment. Canada’s planned laws would make not only the purchase of sex illegal, but its advertisement, too. That will slow down the development of review sites and identity- and health-verification apps.
The prospect of being pressed to mend their ways makes prostitutes less willing to seek care from health or social services. Men who risk arrest will not tell the police about women they fear were coerced into prostitution. When Rhode Island unintentionally decriminalised indoor prostitution between 2003 and 2009 the state saw a steep decline in reported rapes and cases of gonorrhoea.
Prostitution is moving online whether governments like it or not. If they try to get in the way of the shift they will do harm. Indeed, the unrealistic goal of ending the sex trade distracts the authorities from the genuine horrors of modern-day slavery (which many activists conflate with illegal immigration for the aim of selling sex) and child prostitution (better described as money changing hands to facilitate the rape of a child). Governments should focus on deterring and punishing such crimes—and leave consenting adults who wish to buy and sell sex to do so safely and privately online.
How The US Police Got Militarised
FERGUSON, Mo., has become a virtual war zone. In the wake of the shooting of an unarmed black teenager, Michael Brown, outsize armored vehicles have lined streets and tear gas has filled the air. Officers dressed in camouflage uniforms from Ferguson’s 53-person police force have pointed M-16s at the very citizens they are sworn to protect and serve.
The police response has shocked America. The escalating tension in this town of 21,200 people between a largely white police department and a majority African-American community is a central part of the crisis, but the militarization of the police is a dimension of the story that has national implications.
Ferguson’s police force got equipped this way thanks to the Pentagon, and it’s happening all over the country. The Department of Defense provides military-grade weapons and equipment to local law enforcement agencies through the 1033 program, enacted by Congress in 1997 to expand the practice of dispensing extra military gear. Due to the defense industry’s bloated contracts, there is a huge surplus. To date, the Pentagon has donated military equipment worth more than $4 billion to local law enforcement agencies. And the giving goes on, to police forces in all 50 states in the union.
Ferguson’s police department is just one recipient; small towns all over America are now the proud owners of “MRAP” armored vehicles. The largess has gotten so out of hand that a congressman, Hank C. Johnson, is introducing a bill to block the 1033 handouts.
Whereas the Department of Defense hands over weapons directly, the Department of Homeland Security provides funding for arms. It has distributed more than $34 billion through “terrorism grants,” enabling local police departments to acquire such absurd items as a surveillance drone and an Army tank.
For a police department like Ferguson’s, the path to becoming a paramilitary force is a short one. After loading up with free military gear, it is no surprise that law enforcement agents want to use it. In fact, the 1033 program’s regulations require that the police use what they receive within one year.
In the absence of extreme violence or actual terrorist threat, what happens — as the American Civil Liberties Union has documented — is that the equipment and weapons are used by SWAT teams in routine situations, such as low-level drug raids or the execution of search warrants. As Ferguson shows, this militarizing of routine police work exacerbates tensions and increases the likelihood of disorder. This, in turn, appears to justify a militarized police response, and so the cycle continues.
The federal government can stop this increased militarization at its source. The Pentagon must end its transfer of military-grade weapons through the 1033 program. And the Department of Homeland Security should stop handing out the terrorism grants. The ease with which police departments can avail themselves of Homeland Security funding for enormous caches of weapons and ammunition in the name of counterterrorism is deeply disconcerting.
Veteran police chiefs who have served on the front lines of America’s biggest police forces are voicing their concern. Norman H. Stamper, the former police chief of Seattle, has written with regret about the military-style tactics employed during the protests against the 1999 World Trade Organization conference in Seattle; he now advocates “an authentic partnership in policing the city,” involving rank-and-file officers, civilian employees and community representatives.
Militarizing our police officers does not have to be the first response to violence. Alternatives are available. Attorney General Eric H. Holder Jr.’s statement Thursday highlighting resources like the Department of Justice’s Community Oriented Policing Services office is welcome. This is where the government should be investing — instead of grants for guns.
Police militarization is a growing national threat. If the federal government doesn’t act to stop it, the future of law enforcement everywhere will look a lot like Ferguson.
Changing Policing
Even the most straightforward arrest is built upon an incredibly complex foundation: the moment the handcuffs go on is the moment some of our society’s most hotly contested ideas about justice, security, and liberty are brought to bear on an individual. It’s also a moment that’s poised to change dramatically, as law-enforcement agencies around the country adopt new technology—from predictive-policing software to surveillance cameras programmed to detect criminal activity—and incorporate emerging research into the work of apprehending suspects.
Not all of the innovations that are in the works will necessarily become widely used, of course. Experts say that many of them will ultimately require trade-offs that the public may not be willing to make. “We’re approaching a world where it’s becoming technologically possible to ensure 100 percent compliance with a lot of laws,” says Jay Stanley, a senior policy analyst at the American Civil Liberties Union. “For example, we could now pretty easily, if we wanted to, enforce 100 percent compliance with speed limits.” That doesn’t mean we will.
Here, drawn from interviews with a range of thinkers and practitioners, is a glimpse of how tomorrow’s police officers may go about identifying, pursuing, and arresting their targets.
How They’ll Know a Crime Is Taking Place
Devices designed to detect questionable activity are proliferating. Several cities have recently put in place networks of microphone-based gunshot sensors, and others are likely to adopt similar systems. When a sensor picks up a suspicious noise, a computer program analyzes the sound and, if it resembles gunfire, determines its point of origin to within a few yards. A human reviews the report and, if warranted, dispatches officers to the scene—all within about 40 seconds of the gunshot. Meanwhile, a Vancouver company is testing marijuana breathalyzers that can approximate the amount of THC in a person’s system; Guohua Li, an epidemiologist at Columbia University, thinks they will probably be in routine use within five years. Police may also start making use of intelligent surveillance cameras equipped with sensors that can identify abnormal or suspicious behavior. According to Jennifer Lynch of the Electronic Frontier Foundation, such technology is being tested in several American cities and is already sophisticated enough to “notice” when someone leaves a bag unattended, or when a car repeatedly circles the same block.
At the federal level, an initiative called Next Generation 911 will enable victims and witnesses to send texts and, eventually, photos and videos to emergency dispatchers - something that’s currently impossible because the 911 network runs on analog technology from the 1970s. People caught in situations - home invasions, for instance, or domestic-violence incidents - in which they can’t safely speak into a phone will be able to get help, and police will receive valuable real-time crime-scene footage.
Controversially, police departments are starting to monitor social media, which many gangs have embraced as a vehicle for branding and boasting. By searching for specific keywords and mapping interactions among individual users, law-enforcement agencies can keep track of suspected gang members, and identify bubbling gang rivalries. They can also infiltrate networks by posting under aliases and “friending” suspects. The Yale criminologist Andrew Papachristos, who works closely with police departments and gangs, says he hopes that the coming years will see a public debate about how aggressively law-enforcement agencies should use the Web to gather intelligence on people who are not already criminal suspects. Many states have set legal thresholds for classifying someone as a gang member, Papachristos says. “But if all the evidence you need is a Twitter post that says, ‘I hate the Disciples,’ the bar is changing.”
How They’ll Find Their Suspects
Usually predictive policing refers to feeding reams of city data into a computer and dispatching extra officers to areas that are deemed to be at high risk of future crime. There’s potential, though, for predictive policing to be less passive. See, for instance, the approach taken in Albuquerque, where, according to a report from the Police Executive Research Forum, officers took the established (if controversial) practice of leaving “bait” for would-be thieves to the next level: they planted iPads, cars, and spools of copper wire in areas that were flagged by their predictive software, and then arrested people who tried to steal them.
Departments that would rather not rely on probabilities might try the new-fangled “send an airplane with cameras into the sky and have it record every single thing that happens below” technique. According to the Center for Investigative Reporting, that’s more or less what police in Compton, California, have been doing. Kannappan Palaniappan, a computer-science professor at the University of Missouri, says this could one day become a standard method for monitoring high-crime urban neighborhoods. With the use of wide-area surveillance, police would be able to “go to the tape” when, say, a drive-by shooting occurred, and track the assailants’ movements.
Wide-area surveillance is not coming to your town tomorrow, however. For starters, huge leaps in data-storage technology must occur before police can feasibly keep a 24/7 video record of an entire city, according to Palaniappan. What the ACLU’s Jay Stanley calls “societal self-restraint” will likely play a role as well. Last year, he pointed out, the city council in Dayton, Ohio, voted down the local police department’s proposal to use wide-area surveillance, because of privacy concerns. “There’s a lag between when people start to lose their privacy and when they really start to feel it,” Stanley said. “At a certain point, the frog might just say, ‘It’s getting too hot in here,’ and it’ll jump out.”
How They’ll Actually Arrest Someone
Confronting suspects and taking them into custody should become safer for police officers, thanks to so-called real-time crime centers staffed by analysts who can transmit information to officers en route to a crime scene - the criminal histories of the people who live at that address, say, or floor-plan details, or intelligence gathered from surveillance cameras.
An even more profound change involves the personal information that will be collected immediately following an arrest. Tablets equipped with facial-recognition software have already been rolled out in San Diego; meanwhile, the FBI has launched a giant database of biometric information that includes images of people’s faces, irises, fingerprints, and palms, as well as details about tattoos, scars, and other markings. Civil-liberties groups worry that as police make use of new identification tools during routine stops—and in the process collect new kinds of biometric data, including DNA and voice samples—the FBI’s database will swell with intimate information about people who are never convicted of any crime.
Of course, technology can only do so much to alter the way police officers perform their jobs; the rest is up to them and their superiors. On that count, happily, some experts predict significant improvement in the way officers treat suspects once they’ve arrested them. For one thing, the process will become more transparent, thanks to the spread of body-mounted cameras that capture officers’ interactions with the public.
According to the Boise State University psychology professor Charles Honts, interrogations could also become less coercive as agencies across the country decide to abandon their traditional interrogation method, known as the Reid Technique. Newer approaches discourage officers from lying to suspects about evidence or attempting to manipulate them through implicit threats and promises. Instead of, say, looking for signs of deception in suspects’ nonverbal behavior, interviewers are encouraged to create situations that give suspects an opportunity to contradict evidence investigators have already confirmed.
Experimental research by Saul Kassin, a psychologist at the John Jay College of Criminal Justice, has shown that, compared with these newer methods, older methods that rely on deceiving the suspect increase the risk that innocent people will confess. Honts hopes that with time, police departments will respond to the emerging evidence. “There’s no uniform code about how things are supposed to be done by the police, so it’ll take a while,” he told me. “But the force of data is going to make it happen.”
Prostitution Survey
Ninety-one per cent of sex workers describe their work as rewarding and flexible, while two thirds find the job “fun” a study has found.
Of the 240 people questioned, more than half (52 per cent) said that they felt able to stop sex work if they wanted to, compared with just under a quarter of respondents who said they would not.
The survey was carried out by the University of Leeds, working with National Ugly Mugs, a charity that provides access to justice and protection for sex workers.
The research found that sex workers used mainly positive or neutral words when asked about their work.
The study is the first of its kind to focus, with such a large sample, on working conditions and job satisfaction in sex work.
Alex Feis-Bryce, from National Ugly Mugs, said: “Many people, particularly politicians, fall into the trap of seeing sex work as inherently bad without actually asking sex workers what their experiences are and what challenges they face. This research challenges this perspective.
“It is clear from this research that recognising sex work as work and acknowledging its diversity is crucial. Policy makers fall into the trap of assuming that they know better and introducing sweeping proposals intended to ‘save’ sex workers.”
He said that more sex workers cited stigma as a negative aspect of their work than exploitation.
Teela Sanders, the principal researcher for the study, said: “We would recommend that sex workers be allowed to legally work together, as this is the main way in which they believe their safety will be enhanced.
“Societal attitudes need to change, in order to minimise the stigma underpinning sex work and consequently reduce the harm that prejudice and judgment has on sex workers.”
National Ugly Mugs has previously released research highlighting London as having the highest number of reported crimes against sex workers.
The group collected and circulated data on potentially dangerous clients during research collated in August last year. Researchers found there were 970 reported crimes committed against sex workers in the UK over the previous two years, of which about 20 per cent were rapes.
According to the charity, men who murder sex workers frequently have a history of violence against sex workers and others.
Ruling on FOI Law
Court of Appeal
Pub/ished: May 26, 2015 Independent Parliamentary Standards Authority v Information Commissioner and Another Before Lord Dyson, Master of the Ro//s, Lord Justice Richards and Lord Justice Ryder Judgment Apri/ 28, 2015.
A journalist who requested information contained in three invoices submitted by Members of Parliament as expenses claims was entitled under the Freedom of Information Act 2000 to redacted copies of the documents themselves, not merely to a transcript of information contained in them.
The Court of Appeal so held, dismissing the appeal of the Independent Parliamentary Standards Authority against the dismissal by the Upper Tribunal ([2014] UKUT 33 (AAC)) of the authority’s appeal against the dismissal on April 29, 2013 by the First-tier Tribunal of the authority’s appeal against the determination of the Information Commissioner on October 22, 2012, upholding the complaint of Ben Leapman, a journalist, that by not providing copies of the documents themselves the authority was in breach of section 1(1) of the 2000 Act by failing to communicate all the information contained in the requested documents.
Mr Philip Coppel, QC, for the authority; Mr Robin Hopkins for the commissioner. The journalist did not appear and was not represented
LORD JUSTICE RICHARDS said that the authority was the statutory body established by the Parliamentary Standards Act 2009 to oversee the MPs’ expenses claims process. It published details of claims on its website but not copies of the supporting invoices or receipts.
The journalist made a request under the Freedom of Information Act 2000 for the release of information by the authority in the original receipts of three specified expenses claims. The authority provided transcripts of the information but not copies of the invoices.
On appeal by the journalist, the Information Commissioner identified four categories in which information was contained within the invoices over and above that included in the transcripts. The appeal concerned three of them, logos and letterheads, handwriting and/or manuscript comments and a document’s layout, style and/or design.
The first issue was whether there had been a failure to communicate recorded information to which the journalist was entitled. It was the authority’s case that by providing the transcripts, it had communicated all the information to which the journalist was entitled under section 1(1).
The entitlement under section 1(1) related to recorded information but there was no further definition of “information”. It was an ordinary English word not being used in an unusual or narrow sense: see Common Services Agency v Scottish Information Commissioner ( The Times July 14, 2008; [2008] 1 WLR 1550).
The very fact that detailed exemptions were provided within the complex analytical framework of the 2000 Act showed that “information” itself was not to be narrowly construed: on the contrary, the purpose of the statute was to be given effect by construing it in as liberal a manner as possible.
It was common ground that information was not limited to words and figures but extended to visual and aural information (drawings, photographs, CCTV or audio footage, etc). The conceptual distinction between the record and the information contained in it was acknowledged and that the statutory entitlement related specifically to the latter.
His Lordship said that the dividing line between the record itself and the information recorded might not be susceptible of precise definition, but examples falling either side of it could be identified.
The physical properties of the medium on which the information was recorded, such as the weight or weave of the paper, were features of the record itself outside the scope of section 1(1). An obvious example on the other side of the line was the words and figures the authority transcribed from the invoices. They were recorded information.
The material in dispute was closer to the line but had rightly been found by the commissioner and the tribunals to be recorded information. Of particular importance were the following considerations.
First, the issue related to what appeared on the face of the invoices and had to be resolved in the same way, irrespective of the properties of the record itself or the form in which the document was held.
Second, presentational elements did not automatically fall on the record side of the dividing line. An assessment on the facts of the particular case had to be made.
Third, the invoices contained information in addition to those included in the authority’s transcripts: for example, the design of a letterhead or logo, or the layout or style of an invoice constituted information relevant to the supplier’s identity and the document’s genuineness. The fact that material was capable of informing an inquiry into the genuineness of a document was relevant to the assessment of whether it constituted information.
However, the applicant’s actual purpose or motive in requesting the information was irrelevant. It had been open to the commissioner to conclude that the transcripts had not provided all the information to which the journalist was entitled.
On the second issue of whether the means of communication the authority had adopted were sufficient to comply with the journalist’s request, it was argued for the authority that section 11 prescribed the manner in which a section 1(1)(b) entitlement was satisfied: section 1(1)(b) stated the right, whilst section 11 stated the correlative obligation on the public authority.
His Lordship considered that that argument broke down at the first step. The duty correlative to the section 1(1) entitlement was inherent in section 1(1) itself. Section 1(1) imposed a requirement or duty, with which a public authority was obliged to comply, to communicate the information to which the person requesting it was entitled. That duty was independent of section 11.
The function of section 11(1) was separate. It imposed an additional duty on the public authority where the applicant expressed a preference for communication by one or more of the means specified, giving the authority a discretion as to the means by which the information required by section 1(1) would be communicated, but not empowering that authority to communicate less information than section 1(1) required. It did not qualify the entitlement or the duty under section 1(1).
Where the chosen means of communication resulted in a shortfall as between the information communicated and the information to which the person was entitled under section 1(1), the public authority was in breach of its duty under section 1(1).
The Master of the Rolls and Lord Justice Ryder agreed.
Cultural Law
I do not know Mrs Justice Pauffley but it is probably a safe bet that she is unlikely to pose naked on a sacred Malaysian mountain. The High Court judge would equally, one suspects, know better than to have sex in the back of a taxi in Dubai. She would not rip a page of the Koran in Pakistan, nor engage in an openly gay relationship in Uganda, without being fully aware of the potential consequences.
When we visit a foreign country, we fail to respect its laws and customs at our peril. The vomit, sex and urine-stained streets of Magaluf are a tawdry exception, yet the people who despair at our annual export to Spain of British culture at its most debased are often among those quickest to preach the gospel of cultural relativism here at home.
Mrs Justice Pauffley became their standard-bearer this week when she told police and social workers to make allowances for “cultural context” when immigrant adults are accused of attacking a child.
Her ruling, in the case of an Indian father said to have beaten his sevenyear-old son with a long belt, noted that within “many communities newly arrived” in the UK, children were slapped and hit in a way that “at first excites the interest of child protection professionals”. The judge warned that such concerns failed to take into account “what is almost certainly a different cultural context”. In other words, the physical abuse of British boys and girls is wrong but vulnerable immigrant children are fair game?
“They’re not like us so leave them to get on with it” was an attitude that prevailed for far too long among certain sections of our white, liberal, guilt-ridden professional classes, not least within certain local authorities where it almost became corporate groupthink, fuelling a lethal combination of ignorance and tolerance in which honour killings were left unsolved and forced marriages went unchallenged for years, as did the widespread practice of female genital mutilation (FGM).
There is usually a common theme to such crimes of culture. So often, when imported beliefs and practices clash with English law, under the spotlight are cases involving sex, violence and cruelty. And the victims are invariably women or children.
In 2012, a crown court jury listened as a young witness — abused as a child by more than 20 adults — described the moment when 59-year-old Shabir Ahmed explained that he was doing nothing wrong by repeatedly taking her to be used for sex by Pakistani men because in his country “you’re allowed to have sex with girls from the age of 11”.
Ahmed led a grooming network in Rochdale, Greater Manchester, nine of whose members were eventually jailed for multiple offences against children. It was one of many cases that came to light after The Times exposed a hidden pattern of streetgrooming crimes involving young teenage girls and groups of men, many of them British Pakistanis. The scandal erupted last year when an independent inquiry found that at least 1,400 children in Rotherham, South Yorkshire, were subjected to serial abuse over 16 years and that “almost all” the identified offenders were of Pakistani heritage.
The past reluctance of the authorities to protect children in such cases was blamed, in part, on fears of stumbling into a cultural minefield. The Rotherham inquiry found that frontline staff were afraid of raising “ethnic issues . . . for fear of being thought racist”.
A report on a similar scandal in Oxford noted that “wherever this type of organised abuse has been uncovered, the perpetrators have been mainly from an Asian heritage . . . and with a mainly Muslim culture”.
Why such conduct became a normalised group activity among a sub-section of men from one ethnic minority community demands urgent consideration yet the sensitive subject of differing attitudes towards the age of consent in multicultural Britain remains almost taboo.
Preachers of the “cultural context” gospel would do well to give careful thought to some widely held beliefs in lands from which many immigrants hail. In 2013, after 38,000 face-to-face interviews, the respected Pew Research Centre published a survey of global Muslim public opinion. It found that of the 84 per cent of Pakistanis who wanted sharia to be the official law of the land, 89 per cent favoured stoning for adulterers and 76 per cent backed the death penalty for those found guilty of apostasy.
In Bangladesh, 59 per cent thought family honour killings of women were sometimes justified as a punishment for extra-marital sex, as did 71 per cent of Iraqis and 74 per cent of Afghans. Eighty-five per cent of Egyptians, 88 per cent of Pakistanis and 94 per cent of Afghans said a wife must always obey her husband.
We do not want a thought police in this country. Individuals, many of them white Britons, are entitled to hold beliefs which the majority would consider abhorrent. Putting those beliefs into practice is a different matter, not least when it results in conduct that constitutes a criminal offence.
Damian Green, the former criminal justice minister, was speaking of attitudes towards the age of consent when he said in 2013: “If you are abusing children sexually, then that’s criminality and I am not prepared to accept . . . the argument that in some parts of the world this would be regarded as acceptable.”
He wanted to send a signal that “if you come and live in 21st-century Britain then you obey the laws and observe the conventions of 21st century Britain”. It was a crystal clear message but one that Mrs Justice Pauffley would appear, sadly, not to have fully absorbed.
Prisoners and Wardens
Joyce “Tillie” Mitchell got played. That much seems obvious. When convicted murderer Richard Matt first started putting the moves on the prison tailor-shop supervisor—who has been charged with a felony for allegedly providing Matt and fellow convicted murderer David Sweat with tools they used to break out of the Clinton Correctional Facility in Dannemora, New York—he likely saw her less as a paramour than a pawn, someone who could be manipulated into helping them escape. Now Sweat and Matt are still at large, Mitchell is in custody, and the whole country is wondering how this middle-aged woman from upstate could truly have thought “it was love” between her and Matt, as NBC News has reported. (Mitchell has also been accused of having had an inappropriate relationship with Sweat during Sweat’s tenure in the prison tailor shop.)
The furtive prison sex that Mitchell allegedly admitted to having with Matt may have been enjoyable and exciting, but, in retrospect, it probably wasn’t love. Or, at least, we’re loath to think that such a transgressive and unprofessional coupling could be rooted in something real. Is it ever? Emotional and sexual liaisons between inmates and corrections employees are not uncommon in America’s jails and prisons. These relationships are never appropriate, especially given the power imbalance between corrections workers and inmates—but they happen, even though there are laws against them, and we shouldn’t be surprised that they do. Academic research on this tawdry topic indicates that these relationships are indeed most often rooted in manipulation or coercion. But occasionally it’s something more.
There’s often surprisingly little societal distance between inmates and employees.
How do these sorts of relationships even begin? Many jails and prisons are much less formal places than popular media would have you believe. To a corrections employee, a jail or a prison is a workplace—and just like at your workplace, rules aren’t always strictly followed. In his book Prison Management, Prison Workers, and Prison Theory, Stephen C. McGuinn notes that “absolute rule enforcement [in prison] is probably inappropriate (and unlikely). Context generates situations that warrant departures from codified rule. And autonomy allows prison staff to appear human and reasonable—moved by situational factors.”
Unlike in Frank Darabont movies, where the distance between inmates and staffers is only breached if the inmate is an accountant or possessed of magical healing powers, real-life corrections employees can form working relationships with inmates that sometimes border on the overfamiliar. As Brenda V. Smith observed in a 2012 UCLA Law Review article titled “Uncomfortable Places, Close Spaces,” jails and prisons “are generally staffed by individuals who come from similar, if not the same, economic and social backgrounds as those they are supervising.” There’s often surprisingly little societal distance between inmates and employees, and canny prisoners can recognize this and use it to their benefit.
In a 2003 paper for the interdisciplinary journal Deviant Behavior, Robert Worley, James W. Marquart, and Janet L. Mullings divided inmate “turners”—prisoners who try to forge relationships with corrections staffers in order to extract favors—into three categories. “Exploiters” were the most common category of turner; these inmates initiate relationships with staffers in order to obtain contraband that can be used or resold. One “exploiter” interviewed for the paper described his relationship in colorfully unsentimental terms:
I hooked up with some ole ugly ass boss lady and I told her how great she looked and how she needed a strong dude like me to be her partner. Shit, she fell for that real fast. Next, thing you know I got her bringing in cigarettes by the carton. I was making good money and living good. Hell you give ’em a line a B.S. and you got ’em hooked. We eventually got busted. Ha, she told me how much she loved me. I told her you a fool who was a mule.
“Hell-raisers” are another type of inmate turner, chaos agents who pursue relationships in order to cause trouble and embarrass the prison hierarchy. “I’ve had sex with the wives of two different wardens,” one hell-raising inmate claimed.
I did it ’cause I could. You know what I am saying? Man when they busted me for that, all hell broke loose. It was hilarious. Yeah, I lost my outside trusty job but it was worth it ’cause I embarrassed the shit out of that warden and his family. I still can’t stop laughing ’bout it.
But just as common as the hell-raisers were the “heart-breakers,” inmates who were actually seeking long-term relationships and often claimed to actually love the staffers with whom they had become involved. These turners kept their relationships a secret, and some planned to build a future with their lovers upon release. These played out like traditional romantic relationships, with physical intimacy preceded by long periods of courtship. One heart-breaker described how he and a female corrections officer “would just stay up all night talking, even though I was supposed to be cleaning the wing and she was supposed to be guarding the other inmates.”
Jails and prisons are incredibly stressful, negative environments, and female corrections employees especially can find them intimidating or uncomfortable places to work. In a fascinating Ph.D. dissertation from 2013 titled “A Portrait of Boundary Violations,” a former Colorado prison warden named Susan J. Jones conducted extensive interviews with four female ex-corrections employees who had engaged in romantic relationships with inmates. Among other things, Jones found that these employees felt isolated in their workplaces and they found in their inmate relationships a source of kindness and insulation that they otherwise lacked.
Jones describes how the male inmates by whom female corrections employees are surrounded are physically stronger than them and can take great joy in insulting, harassing, flashing, or masturbating at them. Their male co-workers can be emotionally distant and unsympathetic to their struggles. One corrections officer whom Jones profiled, “Sarah,” was verbally abused by inmates—to the complete disinterest of her male shift commander—until she began a relationship with an inmate, “Mike,” a high-ranking gang member whom she had known during her childhood. “The verbal abuse that was so prevalent when she was making rounds in the yard stopped,” writes Jones. “Not one inmate ever again said anything to her that was offensive while she was making rounds. It was obvious that Mike had taken care of the situation, and Sarah believes: ‘Mike came to my aid. He knew what they were saying, we talked about it, and he took care of it.’ ”
One cop a day arrested in Britain
A POLICE officer is arrested on suspicion of criminal offences almost every day, according to figures released under freedom of information laws.
A total of 1,629 officers were arrested over the past five years — one almost every 27 hours.
Almost a third were detained on suspicion of committing violent offences including assault, grievous bodily harm and manslaughter, according to data released by most of the 43 forces in England and Wales.
More than 500 officers went on to be convicted, cautioned or punished for crimes ranging from rape, drug trafficking and sexual offences to fraud and traffic offences. Some received jail sentences.
The statistics reveal there were 174 arrests for sexual offences, with 39 officers convicted or cautioned; 33 arrests for fraud and 41 for perverting the course of justice. Six officers were convicted of sexual offences involving children.
Lancashire police had the worst record with 1.44% of its 3,000 officers convicted or cautioned for criminal offences, according to an analysis of the latest Home Office figures on police force size.
The Metropolitan police, which has been rocked by a series of corruption scandals in recent years, dominated the statistics due to its size, with 781 officers arrested and 146 convicted or cautioned. Almost 2.5% of the Met force — one in every 40 officers — was arrested over the past five years, with almost one in every 200 convicted of a crime.
Perhaps the best-known recent case was the “Plebgate” affair involving PC Keith Wallis, who was jailed for 12 months after lying about witnessing an altercation at the gates at the end of Downing Street that involved the former Tory chief whip, Andrew Mitchell.
Keith Vaz, the chairman of the home affairs select committee, said he would be raising the findings with Sir Bernard Hogan-Howe, the Met commissioner. “These figures are surprising and the committee will want to put them to the commissioner,” he said. Vaz also expressed surprise the statistics had not already been disclosed by the College of Policing, the national body that is supposed to publish figures on police misconduct.
In other examples of officers who have been convicted of offences, in March Chris Higgs, a former officer with Devon and Cornwall police, admitted 16 crimes, including blackmail, perverting the course of justice, witness interference and fraud. Osman Iqbal, a West Midlands police officer, was given a seven-year prison term in 2014 after his colleagues found he was a gangster involved in moneylaundering, prostitution rackets and the supply of class A drugs.
While the figures are dominated by large, urban forces such as the Met and West Midlands, rural forces also feature. Devon and Cornwall police recorded the highest number of officers arrested on suspicion of fraud while Kent had 19 officers arrested for violent offences and nine for perverting the course of justice — the highest in England and Wales.
All the forces contacted by The Sunday Times said allegations of criminality against its officers were taken seriously and rigorously investigated. Some also stressed that an arrest did not always mean an officer was later found guilty.
Flawed Justice System
In an article that has stirred considerable discussion since it appeared this past summer in the Georgetown Law Journal, Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit provides facts and judgments that should disturb everyone, but especially African Americans, whose encounters with the criminal justice system are dismayingly frequent and frequently dismaying.
Eyewitness testimony is, Kozinski says, “highly unreliable, especially where the witness and the perpetrator are of different races.” Mistaken eyewitnesses figured in 34 percent of wrongful convictions in the database of the National Registry of Exonerations. Fingerprint evidence, too, has “a significant error rate,” as does spectrographic voice identification (error rates up to 63 percent) and handwriting identification (error rates average 40 percent). Many defendants have spent years in prison “based on evidence by arson experts who were later shown to be little better than witch doctors.” DNA evidence is reliable when properly handled but is only as good as are the fallible testing labs.
“Much of what we do in the courtroom relies,” Kozinski writes, “on human memory.” But the more we learn about the way memories are “recorded, stored and retrieved,” the less confidence we can have that memories are undistorted and unembellished by the mind or external influences. And courts rarely allow expert testimony on memory.
The idea that at least confessions are reliable because “innocent people never confess” is refuted by the indisputable fact that they do “with surprising regularity.” They do for reasons ranging from a desire to end harsh interrogations, to emotional and financial exhaustion, and to coercive charging of multiple offenses made possible by the overcriminalization of life.
Kozinski says we know “very little” about how juries decide cases. “Do they assume that the presumption [of innocence] remains in place until it is overcome by persuasive evidence or do they believe it disappears as soon as any actual evidence is presented?” Do they actually distinguish between a “preponderance” of evidence, “clear and convincing” evidence, and evidence “beyond a reasonable doubt”? Research demonstrates that the person — the prosecutor — making a first assertion has a substantial advantage over those who subsequently deny it. In the courtroom, juries first hear from prosecutors.
Prosecutions are preceded by police investigations. Police, says Kozinski, have “vast discretion” about, among many other things, which leads to pursue and witnesses to interview. They also have opportunities “to manufacture or destroy evidence, influence witnesses, extract confessions” and otherwise “stack the deck against people they think should be convicted.” A woman spent 23 years on death row because of an oral confession she supposedly made during a 20-minute interrogation by a detective who Kozinski says was later shown “to be a serial liar.” The conviction of a man who spent 39 years in prison was based “entirely” on the eyewitness testimony of a 12-year-old who saw the crime from a distance, failed to identify the man in a lineup and was fed information by the police.
Kozinski suggests many reforms, including recording all interrogations of suspects, strictly limiting uses of jailhouse informants, allowing jurors to take notes and ask questions during the trial, and repealing three felony statutes a day for three years. He cites “disturbing indications that a non-trivial number of prosecutors — and sometimes entire prosecutorial offices — engage in misconduct.” Because a conscientious FBI agent revealed that Justice Department prosecutors concealed exculpatory evidence, we know that Alaska’s Republican Sen. Ted Stevens was wrongly convicted of corruption. Kozinski, who recommends establishing independent prosecutorial integrity units, thinks the Justice Department’s unit “seems to view its mission as cleaning up the reputation of prosecutors who have gotten themselves into trouble.” Kozinski favors abrogating absolute prosecutorial immunity.
Finally, he advocates careful study of exonerations, of which there have been 1,576 since 1989. And for every one “there may be dozens who are innocent but cannot prove it.” If the error rate is 1 percent, 22,000 innocent people are in prison. If the rate is 5 percent, the number is 110,000. Whatever the number, it almost certainly is disproportionately African American.
False Memories and Confessions
A 28-year-old investment banker was brutally raped and beaten while jogging in New York’s Central Park in April 1989. The city went berserk. Five boys of color, ages 14 to 16, soon confessed and were convicted — but not before being called “animals,” “crazed misfits” and “park marauders” by anyone with a mouth or pen. Indeed, the boys were treated like animals, and they served up to 13 years in prison before being exonerated based on “shocking” new DNA evidence and a real confession from serial rapist Matias Reyes. The Central Park Five had falsely confessed, claiming they’d been coerced by police.
Don’t think that it could happen to you? Sorry, but a first-of-its-kind study shows that it could — easily. With a little misinformation, encouragement and three hours, researchers were able to convince 70 percent of participants that they’d committed a crime.
The college-aged students who participated in the study didn’t merely confess; they recalled full-blown, detailed experiences, says lead researcher Julia Shaw, a lecturer in forensic psychology from the University of Bedfordshire. The results were “definitely unexpected,” says Shaw, who predicted only a 30 percent rate.
So, how did they plant false memory of a crime in young adults who had never even been in contact with the police? Shaw and Stephen Porter, a forensic psychologist at the University of British Columbia, first got a few facts about the faux criminal’s teen years — the name of her best friend, hometown, etc. — from parents or a guardian. (An ethical committee said it was OK.) Then, during three 45-minute interviews, Shaw extracted information from the students about one true experience (which they remembered) and one fabricated experience (of which she convinced them). After a few hours of feeding the students tidbits of the verified info, she added them up to equal her fabricated crime — and a majority of students were persuaded: They were criminals.
One student, when told she had assaulted a classmate in her teens, “elaborately” filled in all the blanks: what weapon she used (a rock), what the argument was over (a boy), what she was having for dinner when the 5-0 came a’knockin — even the color of the officers’ hair.
False memories don’t happen quite like Inception. More like a Wikipedia page that can be edited (by you and others), says Elizabeth Loftus, a cognitive psychologist at the University of California, Irvine. Once people believe something to be true, their imagination kicks in, and they begin to visualize the situation using past experiences from themselves, others, even movies, she says. When the patchwork of memory gets stitched together and internalized, truth and fiction become indistinguishable, Loftus says.
And police use Shaw’s tactics, argues Mark Godsey, co-founder and director of the Ohio Innocence Project, an advocacy group for the wrongly convicted. A really heavy-handed interrogation could consist of all the features of Shaw’s study and worse, criminal consequences.
Sure, “the system isn’t perfect,” says Albie Esparza, public information officer for the San Francisco Police Department. But the idea that police use the good cop, bad cop routine is “very Hollywood,” he says. In fact, it’s standard procedure to record interrogations either using video or audio, he says, preventing fishy business. Plus, the police have just as much interest as the public in nabbing the real criminal, Esparza says. “No department wants the image of locking up innocent people.”
How To Reduce Crime
Mass incarceration is failing to prevent crime, according to the Obama administration — so much so that the president's staff is looking in a few unconventional places for new ideas on public safety.
For example, raising the federal minimum wage to $12 an hour could prevent as many as half a million crimes annually, according to a new report from the White House's Council of Economic Advisers, a group of economists and researchers charged with providing the president with analysis and advice on economic questions.
Spending an additional $10 billion to expand police forces could reduce crime by as much as 16 percent, they project, preventing 1.5 million crimes a year.
In the report, the CEA argues for a broader analysis of the problems of crime and incarceration, touching on subjects that seem unrelated to criminal justice, such as early childhood education and health care. The authors of the report contend that by helping people get by legally, those other elements of the president's agenda would be more effective in reducing crime than incarceration.
"If we reform our criminal justice system, our communities will be safer, and our economy will be stronger," said Valerie Jarrett, a senior adviser to the president, at a conference at the White House on Monday. "The statistics are very clear."
The authors of the report review research on the costs of incarceration as well as the benefits in terms of reducing crime. An inmate in a prison can't commit a crime on the street, and the risk of being imprisoned might deter some from breaking the law.
Criminologists have found, however, that criminals aren't deterred by the prospect of incarceration if they think they won't be caught. The likelihood of being punished is more important to criminals than the punishment's severity. And plenty of inmates aren't habitual criminals. Imprisoning offenders who aren't likely to commit more crimes in the future anyway is an expensive way to keep the public safe.
For these reasons, the authors of the White House's report conclude that mass incarceration just isn't worth the money. Hiring more police officers or investing in public education would do more to reduce crime and create greater monetary benefits for society as a whole, they say.
The authors consider a few ways of reducing crime. They forecast that hiking the federal minimum hourly wage from $7.25 to $12 would reduce crime by 3 percent to 5 percent, as fewer people would be forced to turn to illegal activity to make ends meet. By contrast, spending an additional $10 billion on incarceration — a massive increase — would reduce crime by only 1 percent to 4 percent, according to the report.
In the analysis, Obama's staff assumed that increasing the minimum wage to $12 an hour would have a negligible effect on the number of people working, but the minimum wage can, in theory, discourage employers from hiring. Economists are uncertain, for example, whether or not a federal minimum of $15 an hour would put people out of work, and major increases in the minimum could increase crime by making it more difficult for people to find legal employment.
The most effective way to reduce crime would be to spend more money on policing, the report projects. Research consistently shows that departments with more manpower and technology do a better job of protecting the public, and the United States has 35 percent fewer officers relative to the population than do other countries on average.
The conference was one of several efforts this week by the Obama administration to draw attention to the failures of American criminal justice, both in protecting public safety and in helping criminals becoming productive citizens. Attorney General Loretta E. Lynch is also asking state policymakers to help recently released federal inmates obtain government-issued identification — which is often necessary to get a job.
"The loss of a productive life for someone who is incarcerated for too long is an incalculable cost at some level," said Douglas Holtz-Eakin, a former economic adviser to President George W. Bush, at the White House on Monday.