tag:theconversation.com,2011:/au/topics/criminal-justice-3919/articlesCriminal justice – The Conversation2024-03-12T12:31:12Ztag:theconversation.com,2011:article/2249412024-03-12T12:31:12Z2024-03-12T12:31:12ZPennsylvania overhauled its sentencing guidelines to be more fair and consistent − but racial disparities may not disappear so soon<figure><img src="https://images.theconversation.com/files/581063/original/file-20240311-28-gp310p.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">According to the state's new guidelines, juvenile convictions that are 10 years or older should no longer be considered when determining a person's sentence.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/close-up-of-human-hand-with-handcuffs-royalty-free-image/1254827260">Seksan Mongkhonkhamsao via Getty Images</a></span></figcaption></figure><p><em>Pennsylvania’s new <a href="https://pcs.la.psu.edu/guidelines-statutes/sentencing">sentencing guidelines</a> went into effect on Jan. 1, 2024. They mark the eighth iteration since the state first introduced such guidelines in 1982 and are perhaps the most comprehensive revision to date.</em></p>
<p><em>Since Philadelphia has by far the <a href="https://www.prisonpolicy.org/origin/pa/2020/county.html">largest share of incarcerated people</a> in the state, the new sentencing guidelines affect many Philadelphia residents.</em> </p>
<p><em>C. Clare Strange, an <a href="https://scholar.google.com/citations?user=AbnZo6YAAAAJ&hl=en">assistant research professor</a> in the Department of Criminology and Justice Studies at Drexel University, is the <a href="https://nij.ojp.gov/funding/awards/15pnij-23-gg-01365-nijb">principal investigator in a study</a> that will evaluate the impacts of the new guidelines on racial and ethnic disparities in sentencing outcomes over the next five years. She spoke with The Conversation U.S. about how the guidelines have changed and what people with a criminal history in Philadelphia need to know about them.</em></p>
<h2>How do judges determine a person’s sentence?</h2>
<p>Pennsylvania uses what are known as <a href="https://www.pewtrusts.org/en/research-and-analysis/reports/2008/07/01/state-sentencing-guidelines-profiles-and-continuum">advisory sentencing guidelines</a>. This means that judges are required to consider what the state guidelines suggest a criminal sentence should be, but they are not required to comply with the guidelines. That’s different from other states <a href="https://robinainstitute.umn.edu/publications/sentencing-commissions-and-guidelines-numbers-cross-jurisdictional-comparisons-made">such as Minnesota and Oregon</a> that have mandatory sentencing guidelines. Meanwhile, a majority of U.S. states have <a href="https://www.uscourts.gov/federal-probation-journal/2017/09/state-sentencing-guidelines-garden-full-variety">no sentencing guidelines</a> at all. </p>
<p>In Pennsylvania, judges primarily consider what crime the person is charged with along with their prior record or criminal history. </p>
<p><a href="https://pcs.la.psu.edu/guidelines-statutes/sentencing/">A matrix</a> tells judges what the standard recommended sentencing range would be. Typically, judges sentence a defendant to a minimum term and then, after that minimum term, a parole board decides when it’s appropriate for the person to be released.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/580258/original/file-20240306-26-859ax4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Pennsylvania's sentencing guidelines based on offense severity and criminal history." src="https://images.theconversation.com/files/580258/original/file-20240306-26-859ax4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580258/original/file-20240306-26-859ax4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=776&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580258/original/file-20240306-26-859ax4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=776&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580258/original/file-20240306-26-859ax4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=776&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580258/original/file-20240306-26-859ax4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=976&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580258/original/file-20240306-26-859ax4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=976&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580258/original/file-20240306-26-859ax4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=976&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Pennsylvania’s 2024 sentencing guidelines matrix.</span>
<span class="attribution"><span class="source">PA Commission on Sentencing</span></span>
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<h2>What’s new in the 2024 sentencing guidelines?</h2>
<p>A lot has changed. Probably the most significant change is re-weighting the two categories in the matrix — offense severity and criminal history. These categories are officially known as the Offense Gravity Score and the Prior Record Score. There are now fewer categories of criminal history and far more categories of offense severity. </p>
<p>The revised guidelines have more than double the number of categories for Offense Gravity Score, which aim to ensure that sentences better align with crime severity. This is important because there is less opportunity for disparities to come through when a sentencing recommendation is more specific and more consistent between similar types of crimes. </p>
<p>Changes to Prior Record Score calculations and categories aim to address racial disparities and refocus sentence recommendations on the current offense. Lapsing policies, for example, have been expanded to reduce the impact of criminal history on sentencing for less serious offenders. These can involve the removal of specific prior offenses from inclusion in the Prior Record Score calculation after a certain amount of time has passed or after the person has had an extended crime-free period. </p>
<h2>What’s the goal of the new guidelines?</h2>
<p>Pennsylvania’s sentencing guideline system was <a href="https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/42/00.021.054.000..HTM">mandated by the state legislature</a>. The guidelines themselves were created by the <a href="https://pcs.la.psu.edu/">Pennsylvania Commission on Sentencing</a> with the the goal of promoting fair and uniform decisions on the severity of people’s punishment. </p>
<p>The commission was not explicitly formed to reduce punishment. That said, it has taken explicit efforts to reduce disparities in punishment that are linked to race and ethnicity. </p>
<p>The commission has <a href="https://pcs.la.psu.edu/policy-administration/about-the-commission/members/">11 members</a> who are appointed by the state Legislature. The members are typically judges, legislators and other criminal justice professionals. These commission members provide direction and oversight and are unique from <a href="https://pcs.la.psu.edu/policy-administration/about-the-commission/staff/">commission staff</a>, who collect, analyze and monitor the sentencing data for the state.</p>
<h2>What’s been the reaction so far?</h2>
<p>Anytime there’s talk about reducing the impact of criminal history on punishment, people express a whole spectrum of beliefs. Not everybody has the same primary concern of reducing disparities. For example, some people prefer more tough-on-crime policies. As a legislative body, the commission answers to many different constituencies.</p>
<p>The new guidelines mirror the <a href="https://www.ussc.gov/guidelines">federal sentencing guidelines</a> in that there are many offense gravity categories. One critique I’ve heard is that the Offense Gravity Score now has too many categories and adjustments, and that this might complicate things such as plea negotiations. </p>
<p><a href="https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/pleabargainingresearchsummary.pdf">About 95% of criminal cases</a> are settled in plea negotiation and never go to trial. Plea negotiations are a hidden interaction where the prosecution negotiates charges and punishments with defense attorneys and their clients in exchange for a plea of guilty or no contest. Having more Offense Gravity Score categories could lead to more complicated and slower plea negotiations.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/581033/original/file-20240311-26-4fpfju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Philadelphia law enforcement officers stand together in front of church in downtown Philadelphia" src="https://images.theconversation.com/files/581033/original/file-20240311-26-4fpfju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/581033/original/file-20240311-26-4fpfju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/581033/original/file-20240311-26-4fpfju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/581033/original/file-20240311-26-4fpfju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/581033/original/file-20240311-26-4fpfju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/581033/original/file-20240311-26-4fpfju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/581033/original/file-20240311-26-4fpfju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Racial disparities exist throughout the criminal justice process, from arrests and charges to sentencing and parole.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PhiladelphiaOfficersShot/807f48dd90604210854a1a15d5e393e7">Joe Lamberti/AP</a></span>
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<h2>Will the guidelines reduce racial disparities in Pa.’s criminal justice system?</h2>
<p>National statistics show that, on average, a Black person is more likely than a white person to be <a href="http://www.doi.org/10.1038/s41562-020-0858-1">stopped by police</a>, <a href="https://doi.org/10.1177/1098611117708791">to experience police use of force</a> when stopped, <a href="https://doi.org/10.1177/0093854815628026">to be charged</a> when arrested, <a href="https://nij.ojp.gov/library/publications/opening-pandoras-box-how-does-defendant-race-influence-plea-bargaining">to receive more charges</a> when charged, <a href="https://www.jstor.org/stable/23367476">to receive a harsher sentence</a>, <a href="https://nij.ojp.gov/library/publications/opening-pandoras-box-how-does-defendant-race-influence-plea-bargaining">to be sentenced to confinement</a> and so on. It’s a cumulative disadvantage across the justice process. </p>
<p>These disparities occur within Pennsylvania, too. For example, a <a href="https://www.rand.org/pubs/external_publications/EP70332.html">December 2023 analysis</a> by the <a href="https://www.rand.org/">Rand Corporation</a>, a nonprofit global policy think tank, looked at racial disparities within the criminal justice system in Allegheny County, which includes Pittsburgh and is Pennsylvania’s second-most populated county after Philadelphia. It found that significant racial disparities exist at each of the key stages of people’s encounter with the criminal justice system, from having charges filed against them to having their parole revoked.</p>
<p>Courts to some degree inherit disparities from police and prosecutor decision making, though the new guidelines may help to reduce them at later stages, such as sentencing.</p>
<p>Racial and ethnic disparities in sentencing are <a href="https://doi.org/10.1093/acrefore/9780190264079.013.241">widespread in the U.S.</a> and are almost never entirely explained by legally relevant factors such as type of crime committed or criminal history. So researchers like me explain this leftover variation as the “<a href="https://www.jstor.org/stable/23367476">race effect</a>,” or “race and ethnicity effect.” </p>
<p>Part of the commission’s charge is to collect and monitor data, which can be used by the state and other criminal justice researchers. Some states may lack the infrastructure to collect or monitor data to the degree that Pennsylvania does. </p>
<p>That’s where my project comes in. It is designed to use commission data so that at the end of the five years we can determine whether these changes to the guidelines had the intended impact on disparities – and if they didn’t, why not.</p><img src="https://counter.theconversation.com/content/224941/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>C. Clare Strange receives funding from the National Institute of Justice (NIJ). </span></em></p>The new guidelines are not intended to reduce punishment but aim to reduce disparities in punishment that are linked to race and ethnicity.C. Clare Strange, Assistant Research Professor of Criminology and Justice Studies, Drexel UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2217332024-01-24T01:03:52Z2024-01-24T01:03:52ZThe government has announced the scope of its sexual violence inquiry. Here’s what it gets right (and what it doesn’t)<p>This week, the government announced the start of its promised inquiry into justice responses to sexual violence. </p>
<p>The <a href="https://www.alrc.gov.au/inquiry/justice-responses-to-sexual-violence/">terms of reference</a> were developed from national <a href="https://www.ag.gov.au/crime/publications/outcomes-summary-national-roundtable-justice-responses-sexual-violence">discussions</a> last year. Federal, state and territory ministers took part, as well as victim-survivors and advocates. For many with experience and expertise in the area, the challenges highlighted were nothing new.</p>
<p>There has been a significant amount of time and energy poured into sexual violence law and policy reform in Australia since the 1970s, highlighting the <a href="https://www.aic.gov.au/sites/default/files/2020-07/rape-law-reform.pdf">persistent barriers</a> faced by victim-survivors in seeking criminal justice responses to sexual violence and harm. </p>
<p>It is, therefore, pleasing to see the Australian Law Reform Commission finally listening. However, we are cautious about what impact reforms like this will realistically have, given previous attempts have been <a href="https://link.springer.com/article/10.1007/s10691-022-09499-1">routinely undermined in practice</a>.</p>
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Read more:
<a href="https://theconversation.com/does-australia-need-dedicated-sexual-assault-courts-215708">Does Australia need dedicated sexual assault courts?</a>
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<h2>What do the terms of reference get right?</h2>
<p>As much as they sound highly procedural, terms of reference are important because they determine what can and cannot be investigated.</p>
<p>Two important features are a step in the right direction. One is the inclusion of a lived-experience Expert Advisory Group. The second is the explicit mention of a trauma-informed approach to victim-survivor and stakeholder engagement through <a href="https://www.alrc.gov.au/inquiry/justice-responses-to-sexual-violence">counselling services</a> to those who participate in the consultation process. </p>
<p>The inclusion of a such a group is now a staple of many law reform inquiries and government departments (like the <a href="https://www.vic.gov.au/victim-survivors-advisory-council">Victim Survivors’ Advisory Council</a> in Victoria) to collaborate on policy. While this is welcome, there are important things for the Australian Law Reform Commission to consider. </p>
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<p>Firstly, there are significant <a href="https://journals.sagepub.com/doi/abs/10.1177/10778012211024266?journalCode=vawa">personal and psychological risks</a> for victim-survivors who may contribute. The commission will need to ensure they’re supported. </p>
<p>Secondly, it is unclear how people will be selected to form the group. The commission needs to ensure the group is representative of diverse experiences and backgrounds. </p>
<p>Thirdly, power imbalances between survivors and the government can <a href="https://bristoluniversitypressdigital.com/view/journals/jgbv/7/3/article-p450.xml">undermine victim-survivors’ contributions</a> to reform efforts. The commission needs to consider how those with experience will be <a href="https://link.springer.com/article/10.1007/s10691-022-09499-1">adequately listened to</a>. </p>
<p>An important feature of the terms of reference is the focus on reforming the broader criminal legal system, not just laws. While <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/sexual-violence/latest-release">more than 90%</a> of victim-survivors never report to police, for those who do, we need to minimise the likelihood of the system being <a href="https://link.springer.com/article/10.1023/A:1022847223135">encountered as a “second rape”</a>. </p>
<p>The commission’s focus on practices such as education for criminal justice personnel, access to a legal representative, and <a href="https://www.mdpi.com/2075-471X/9/4/31">reforms to procedures</a> and <a href="https://aifs.gov.au/research/research-reports/victimsurvivor-focused-justice-responses-and-reforms-criminal-court">laws of evidence</a> therefore has the potential to improve survivors’ <a href="https://www.tandfonline.com/doi/pdf/10.1080/13200968.2021.1930434">experiences of the system</a>. </p>
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Read more:
<a href="https://theconversation.com/male-soldiers-cant-help-themselves-is-among-many-rape-myths-that-need-debunking-212568">'Male soldiers can't help themselves' is among many rape myths that need debunking</a>
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<p>However, international <a href="https://apo.org.au/node/26507">research</a> indicates these measures may have limited impact or <a href="https://journals.sagepub.com/doi/10.1177/1748895819851848">unintended outcomes in practice</a>. Such initiatives would require close monitoring if introduced. </p>
<p>Likewise, having uniform legislative definitions of sexual violence across jurisdictions could help to ensure access to (formal) justice is not contingent on where you happen to live. However, getting harmony across states <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4478006#:%7E:text=We%20identify%20four%20main%20obstacles,historical%20failures%20and%20political%20disincentives">could prove challenging</a>. </p>
<p>It is also positive to see the commission adopt what’s called an <a href="https://www.jstor.org/stable/1229039">intersectional framework</a>. This approach recognises particular groups may be disproportionately impacted by sexual violence, and face unique or additional barriers to engaging with the criminal legal system. The needs of some groups, such as older women, are currently poorly responded to and require urgent attention. </p>
<h2>What are the limits of the inquiry?</h2>
<p>Many communities mentioned in the terms of reference are often unwilling or unable to engage with the formal legal system. It is unclear how the Australian Law Reform Commission intends to meaningfully engage with marginalised communities and ensure that these groups’ needs and perspectives are included.</p>
<p>For instance, an explicit role for Aboriginal and Torres Strait Islander victim-survivors and advocates is missing from the terms of reference outside of the consultation phase. A specific First Nations advisory group could boost engagement with the commission’s process so their perspectives could be better captured.</p>
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<a href="https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A courtroom with the scales of justice in the wood of the judge's bench" src="https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571017/original/file-20240124-19-wb5nqn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The criminal justice system’s ability to deal with sexual violence cases is the subject of a new inquiry.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/balance-sign-court-room-1812892960">Shutterstock</a></span>
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<p>The terms also limit the scope for alternative justice to be explored. A law reform inquiry inherently centres the criminal legal system as the main way sexual violence is dealt with. However, we know victim-survivors have a <a href="https://journals.sagepub.com/doi/full/10.1177/0964663918761200">diverse range of justice needs</a>, some of which are difficult to meet in the traditional system. Some forms of sexual violence, such as public sexual harassment, are <a href="https://link.springer.com/article/10.1007/s10691-017-9350-3">challenging to respond to</a> using the law.</p>
<p>Some scholars and activists advocate for a <a href="https://journals.sagepub.com/doi/abs/10.1177/0269758020970414">shift away</a> from the criminal legal system. They argue the system is fundamentally harmful. We know, for example, sexual violence occurs within the system through practices like <a href="https://sistersinside.com.au/qhrc-review-into-strip-search-in-womens-prison/">strip searching</a>. It’s also perpetrated by criminal justice actors including <a href="https://www.theguardian.com/australia-news/2024/jan/18/high-ranking-victoria-police-officer-charged-with-three-counts-of-sexual-assault-alleged-to-have-occurred-while-on-duty?CMP=share_btn_tw">police officers</a>. </p>
<p>In addition, the terms of reference don’t include examining the persistent disbelief of victim-survivors by some within the criminal legal system.</p>
<h2>Watch this space…</h2>
<p>There is also the larger question about how the recommendations of the inquiry will be resourced and implemented in practice. While the commission appears to take a holistic approach, it remains to be seen whether this will have any bearing on future reforms to legislation, policy and practice. </p>
<p>The recent Victorian Law Reform Commission <a href="https://www.lawreform.vic.gov.au/project/improving-the-response-of-the-justice-system-to-sexual-offences/">inquiry on sexual offences </a> also included a focus on innovative justice responses. So far, more innovative recommendations have been sidelined by the government in favour of <a href="https://www.justice.vic.gov.au/victorias-new-sexual-offence-laws-an-introduction">legislative reform</a>. </p>
<p><a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/final_report_133_amended1.pdf">Recent</a> Australian <a href="https://humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/wiyi-yani-u-thangani">inquiries</a> have called for alternatives to criminal legal responses for Indigenous women’s safety. Despite a <a href="https://www.womenstaskforce.qld.gov.au/__data/assets/pdf_file/0009/691218/wsjt-submission-dr-marlene-longbottom-and-dr-amanda-porter-university-of-wollongong-and-university-of-melbourne.pdf">strong evidence base</a> for community-controlled, restorative solutions, there has been little action on these recommendations to date. </p>
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Read more:
<a href="https://theconversation.com/a-royal-commission-wont-help-the-abuse-of-aboriginal-kids-indigenous-led-solutions-will-216526">A royal commission won't help the abuse of Aboriginal kids. Indigenous-led solutions will</a>
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<p>While the outcomes of the inquiry are outside the immediate control of the commission, it does raise concerns about the merits of continuing to tinker with a broken system. Despite many decades of law reform in jurisdictions such as Victoria, <a href="https://www.crimestatistics.vic.gov.au/research-and-evaluation/publications/attrition-of-sexual-offence-incidents-through-the-victorian#:%7E:text=Attrition%20was%20highest%20during%20the,of%20those%20offenders%20they%20identified">reporting rates</a> remain low and attrition rates remain high. </p>
<p>Given the limits of criminal legal reform, we need to think bigger and more boldly. The inquiry is a good start, but for a comprehensive solution, we will need to be willing to question the role of a criminal justice system that has so far failed victim-survivors.</p><img src="https://counter.theconversation.com/content/221733/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rachel Loney-Howes receives funding from the Commonwealth Government Attorney-General's Department, the Victorian Government, and, previously, the Australian Institute of Criminology for research on alternative reporting options for survivors of sexual violence. </span></em></p><p class="fine-print"><em><span>Bianca Fileborn receives funding from the Australian Research Council to undertake research on justice responses to sexual violence.</span></em></p>The inquiry into justice responses to sexual violence is taking a holistic approach, which is a welcome step in the right direction. But there’s still elements missing from the terms of reference.Rachel Loney-Howes, Senior Lecturer in Criminology, University of WollongongBianca Fileborn, Senior Lecturer in Criminology, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2171832023-12-04T13:27:05Z2023-12-04T13:27:05ZPhiladelphia reduces school-based arrests by 91% since 2013 – researchers explain the effects of keeping kids out of the legal system<figure><img src="https://images.theconversation.com/files/563102/original/file-20231203-15-71hdlk.jpg?ixlib=rb-1.1.0&rect=19%2C24%2C3189%2C2102&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A change in policy means more Philly students are staying in school and out of the legal system.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PhiladelphiaSchools/32fea4648c1744b99f8f5b78f85ad2a6/photohttps://newsroom.ap.org/detail/PhiladelphiaSchools/32fea4648c1744b99f8f5b78f85ad2a6/photo">AP Photo/Matt Rourke</a></span></figcaption></figure><p>Across the United States, arrest rates for young people under age 18 have been declining for decades. However, the proportion of youth arrests associated with <a href="https://www.ojjdp.gov/ojstatbb/njcda/pdf/jcs2013.pdf">school incidents</a> <a href="https://www.ojjdp.gov/ojstatbb/njcda/pdf/jcs2019.pdf">has increased</a>.</p>
<p>According to <a href="https://ocrdata.ed.gov/estimations/2017-2018">the U.S. Department of Education</a>, K-12 schools referred nearly 230,000 students to law enforcement during the school year that began in 2017. These referrals and the 54,321 reported school-based arrests that same year were mostly for minor misbehavior like marijuana possession, as <a href="https://eric.ed.gov/?id=EJ1179204">opposed to more serious offenses</a> like bringing a gun to school. </p>
<p>School-based arrests are one part of the <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/defining-and-redirecting-school-prison-pipeline">school-to-prison pipeline</a>, through which students – especially Black and <a href="https://theconversation.com/stop-using-latinx-if-you-really-want-to-be-inclusive-189358">Latine</a> students and those with disabilities – are pushed out of their schools and into the legal system. </p>
<p>Getting caught up in the legal system has been linked to negative <a href="https://doi.org/10.1016/j.acap.2022.08.009">health</a>, <a href="https://doi.org/10.1017/S095457942000200X">social</a> and <a href="https://doi.org/10.1177/0038040712448862">academic</a> outcomes, as well as increased risk for <a href="https://doi.org/10.1111/1745-9125.12039">future arrest</a>. </p>
<p>Given these negative consequences, public agencies in states like <a href="https://www.chdi.org/our-work/school-based-mental-health/sbdi/">Connecticut</a>, <a href="https://doi.org/10.1177/1541204014521249">New York</a> and <a href="https://doi.org/10.1016/j.childyouth.2019.03.022">Pennsylvania</a> have looked for ways to arrest fewer young people in schools. Philadelphia, in particular, has pioneered a successful effort to divert youth from the legal system. </p>
<h2>Philadelphia Police School Diversion Program</h2>
<p>In Philadelphia, police department leaders recognized that the city’s school district was its largest source of referrals for youth arrests. To address this issue, then-Deputy Police Commissioner <a href="https://www.inquirer.com/news/philadelphia/philadelphia-school-diversion-program-kevin-bethel-police-20160926.html">Kevin Bethel developed and implemented</a> a school-based, pre-arrest diversion initiative in partnership with the school district and the city’s department of human services. The program is called the <a href="https://www.jjrrlab.com/uploads/1/2/4/1/124158680/diversion_finalreport_8.2022.pdf">Philadelphia Police School Diversion Program</a>, and it officially launched in May 2014. </p>
<p>Mayor-elect Cherelle Parker named <a href="https://www.inquirer.com/news/philadelphia/kevin-bethel-philadelphia-police-commissioner-cherelle-parker-20231121.html">Bethel as her new police commissioner</a> on Nov. 22, 2023.</p>
<p>Since the diversion program began, when police are called to schools in the city for offenses like marijuana possession or disorderly conduct, <a href="https://doi.org/10.1016/j.childyouth.2019.03.022">they cannot arrest the student involved</a> if that student has no pending court case or a history of adjudication. In juvenile court, an adjudication is similar to a conviction in criminal court. </p>
<p>Instead of being arrested, the diverted student remains in school and school personnel decide how to respond to their behavior. For example, they might speak with the student, schedule a meeting with a parent or suspend the student. </p>
<p>A social worker from the city also contacts the student’s family to arrange a home visit, where they assess youth and family needs. Then, the social worker makes referrals to no-cost community-based services. The student and their family choose whether to attend.</p>
<p>Our team — the <a href="https://www.jjrrlab.com/">Juvenile Justice Research and Reform Lab</a> at Drexel University — evaluated the effectiveness of the diversion program as <a href="https://www.jjrrlab.com/diversion-program.html">independent researchers</a> not affiliated with the police department or school district. We published four research articles describing various ways the diversion program affected students, schools and costs to the city. </p>
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<h2>Arrests dropped</h2>
<p>In our evaluation of the diversion program’s first five years, we reported that the annual number of <a href="https://doi.org/10.1037/lhb0000440">school-based arrests in Philadelphia decreased by 84%</a>: from nearly 1,600 in the school year beginning in 2013 to just 251 arrests in the school year beginning in 2018. </p>
<p>Since then, school district data indicates the annual number of school-based arrests in Philadelphia has continued to decline — dropping to just 147 arrests in the school year that began in 2022. That’s a 91% reduction from the year before the program started.</p>
<p>We also investigated the number of serious behavioral incidents recorded in the school district in the program’s first five years. Those <a href="https://doi.org/10.1037/lhb0000440">fell as well</a>, suggesting that the diversion program effectively reduced school-based arrests without compromising school safety.</p>
<p>Additionally, data showed that city social workers successfully contacted the families of <a href="https://www.ojp.gov/pdffiles1/nij/grants/304409.pdf">74% of students diverted</a> through the program during its first five years. Nearly 90% of these families accepted at least one referral to community-based programming, which includes services like academic support, job skill development and behavioral health counseling. </p>
<h2>Fewer suspensions and expulsions</h2>
<p>We compared data from 1,281 students diverted in the first three years of the school-based program to data from 531 similar students who were arrested in schools before the program began but who would have been eligible if the diversion program existed.</p>
<p>Diverted students were <a href="https://doi.org/10.1037/lhb0000453">significantly less likely</a> to be suspended, expelled or required to transfer to another school in the year following their school-based incident.</p>
<h2>Long-term outcomes</h2>
<p>To evaluate a longer follow-up period, we compared the 427 students diverted in the program’s first year to the group of 531 students arrested before the program began. Results showed arrested students were significantly more likely to be arrested again <a href="https://doi.org/10.1037/law0000397">in the following five years</a>. </p>
<p>Although we observed impacts on arrest outcomes, the diversion program did not appear to affect long-term educational outcomes. We looked at four years of school data and found no significant differences in suspension, dropout or on-time graduation between diverted and arrested students. </p>
<p>Finally, a cost-benefit analysis revealed that the program saves taxpayers <a href="https://doi.org/10.1093/police/paac061">millions of dollars</a>. </p>
<p>Based on its success in Philadelphia, several other cities and counties across Pennsylvania have begun replicating the Police School Diversion Program. These efforts could further contribute to a nationwide movement to safely keep kids in their communities and out of the legal system.</p><img src="https://counter.theconversation.com/content/217183/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Research reported in this article was supported by funding from the U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (2014-JZ-FX-K0003; 2017-JF-FX-0055), the National Institute of Justice (NIJ; 2017-CK-BX-0001), and the Stoneleigh Foundation. The content of this article is solely the responsibility of the authors and does not necessarily represent the views of the United States Department of Justice, its agencies, the Stoneleigh Foundation, or other funding organizations. </span></em></p><p class="fine-print"><em><span>Naomi Goldstein receives funding from the National Institute of Justice (NIJ) and previously received funding from the NIJ,Office of Juvenile Justice and Delinquency Prevention, and Stoneleigh Foundation.</span></em></p>Drexel researchers evaluated a 2014 program implemented by Kevin Bethel when he was deputy police commissioner that led to fewer arrests of students in schools.Amanda NeMoyer, Assistant Research Professor of Psychological and Brain Sciences, Drexel UniversityNaomi Goldstein, Professor of Psychological and Brain Sciences, Drexel UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2169722023-11-20T13:17:01Z2023-11-20T13:17:01ZEducation linked to better employment prospects upon release from prison<p>Better job prospects. Higher wages. A greater chance of staying out of jail. Those are the key outcomes that we discovered for incarcerated people who get an education while serving their time.</p>
<p>Our <a href="https://doi.org/10.1007/s12103-023-09747-3">findings were published</a> in the American Journal of Criminal Justice. They are based on an analysis of research studies on the effects of prison education in the U.S. We examined a range of programs, from adult basic education to college. We analyzed 152 data points from 79 research papers published between 1980 and 2023.</p>
<p>Specifically, our analysis found: </p>
<p>• <strong>Reduced recidivism</strong>: Participating in prison education decreases the chances of recidivism by 6.7 percentage points – from 46% to 39.3%.</p>
<p>This translates to safer communities and significant savings for the state. The <a href="https://doi.org/10.1177/0032855594074004004">average prisoner</a> in the U.S. spends nearly three years in prison, at a total cost of US$107,000.</p>
<p>Education programs in prisons not only decrease the likelihood that released prisoners commit future crimes and victimize more people and communities, but they reduce the likelihood of future incarceration costs.</p>
<p>• <strong>Improved employment prospects</strong>: Inmates who participated in educational programs had a 3.1 percentage point higher likelihood of securing employment after release than inmates who did not participate in programs – from 44.8% to 47.9%. In a society where ex-inmates often find <a href="https://www.irp.wisc.edu/publications/focus/pdfs/foc232h.pdf">doors closed because of their past</a>, this increase in employability is crucial for released prisoners’ successful reintegration.</p>
<p>• <strong>Increased earnings</strong>: Educated prisoners are not only more likely to find work but also more likely to find higher-paying jobs. Education increases the yearly wages of employed ex-offenders by $564. Though modest, the benefit is considerable when calculated over years.</p>
<p>While all forms of education yielded benefits, college programs, despite their higher costs, had the most profound impact on inmates with higher earnings and rates of employment. Most college programs are two to four years – representing a more intensive investment – but also a more transformative impact.</p>
<h2>Why it matters</h2>
<p>The <a href="https://www.prisonpolicy.org/research/economics_of_incarceration/">economic strain</a> of maintaining a vast prison population is already immense.</p>
<p>Our study finds that each dollar spent on all four major forms of education – adult basic education, secondary, vocational and college – <a href="https://doi.org/10.1007/s12103-023-09747-3">more than pays for itself</a>. The return on investment for prison programs varies from 61.15% for college to 205.13% for vocational coursework.</p>
<p>While our study considers only the measurable factors of incarceration and employment, many <a href="https://www.mackinac.org/archives/2023/s2023-01.pdf">other benefits</a> of decreased crime cannot be easily measured. These benefits include reduced costs to victims, courts and police. Fully including these benefits will only increase the return on investment.</p>
<p>The <a href="https://www.ed.gov/news/press-releases/us-department-education-launch-application-process-expand-federal-pell-grant-access-individuals-who-are-confined-or-incarcerated">recent restoration of Pell Grants for incarcerated students</a> – eliminated in 1994 during the “<a href="https://www.brennancenter.org/our-work/analysis-opinion/1994-crime-bill-and-beyond-how-federal-funding-shapes-criminal-justice">tough-on-crime</a>” era – is a testament to the growing acknowledgment of the importance of prison education. The Federal Bureau of Prisons has reintroduced <a href="https://www.bop.gov/resources/news/20230712_pell_grant.jsp">Second Chance Pell programs</a>, with promising results in the form of <a href="https://abcnews.go.com/US/wireStory/thousands-prisoners-us-free-college-paid-government-100436967">graduation and job offers</a>.</p>
<h2>What’s next</h2>
<p>The <a href="https://www.benstickle.com/">research team</a>, with support from the <a href="https://www.mackinac.org/">Mackinac Center for Public Policy</a>, a Michigan-based nonprofit think tank that promotes free markets and limited government, continues to dive deeper into this topic, evaluating how states can encourage prison education. We are also keen to study how the expanded access to Pell Grants might further influence effectiveness and reach of prison education programs. But more questions remain: How will these programs evolve with increased funding? Will the positive effect of education continue as these programs reach more incarcerated students?</p>
<p><em>The <a href="https://theconversation.com/us/topics/research-brief-83231">Research Brief</a> is a short take on interesting academic work.</em></p><img src="https://counter.theconversation.com/content/216972/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben Stickle receives funding from Mackinac Center for Public Policy. </span></em></p><p class="fine-print"><em><span>Steven Sprick Schuster receives funding from Mackinac Center for Public Policy. </span></em></p>People who get an education while serving time are less likely to return to prison and more likely to enter the job market, an analysis finds.Ben Stickle, Professor of Criminal Justice Administration, Middle Tennessee State UniversitySteven Sprick Schuster, Assistant Professor of Economics, Middle Tennessee State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2123772023-08-29T05:58:10Z2023-08-29T05:58:10ZQueensland is not only trampling the rights of children, it is setting a concerning legal precedent<figure><img src="https://images.theconversation.com/files/545217/original/file-20230829-15-kralxz.jpg?ixlib=rb-1.1.0&rect=280%2C358%2C2086%2C1257&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Last week, the Queensland parliament <a href="https://www.theguardian.com/australia-news/2023/aug/25/keeping-kids-in-watch-houses-why-the-queensland-government-could-change-the-law-to-suit-itself">voted</a> to override its own human rights law in order to enable children to continue to be detained in police watch houses and adult detention facilities. </p>
<p>This was not the first time it had taken such a step. In March, the parliament <a href="https://www.theguardian.com/australia-news/2023/feb/21/queensland-to-override-states-human-rights-act-in-bid-to-make-breach-of-bail-an-offence-for-children">passed</a> amendments to override the state’s <a href="https://www.legislation.qld.gov.au/view/html/inforce/current/act-2019-005">Human Rights Act</a> to create an offence for children who breach bail conditions, require a sentencing court to consider a child’s bail history, and enable a child to be declared a serious repeat offender. </p>
<p>These moves have attracted a significant amount of criticism because they come so soon after the state’s Human Rights Act was adopted. And they are serious because children’s rights are the ones being trampled – twice – and children are among the most vulnerable members of our community, even when they commit crimes.</p>
<p>What has received less attention, however, is the fact the parliament’s actions also go against international human rights protections under treaties such as the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights">International Covenant on Civil and Political Rights</a> and the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child">Convention on the Rights of the Child</a>. </p>
<p>In addition, overriding the Human Rights Act twice could create a pattern we should be extremely concerned about. </p>
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<h2>International human rights protections</h2>
<p>International conventions broadly obligate parties to make the best interests of children a primary consideration in all actions concerning them. These conventions and applicable international standards also assert that the incarceration of children should be a last resort and juveniles should be treated in an age-appropriate way in criminal justice proceedings. </p>
<p>The Queensland government relied on these specific international human rights protections when it drafted its Human Rights Act, which I have extensively reviewed in my <a href="https://store.lexisnexis.com.au/categories/practice-area/jurisdiction-827/an-annotated-guide-to-the-human-rights-act-2019-qld-skuan_annotated_guide_to_the_human_rights_act_2019_Qld">new book</a> (written with Peter Billings).</p>
<p>For instance, section 33 protects children’s rights in the criminal justice process, including a child’s right to be segregated from adults in detention and a convicted child’s right to receive age-appropriate treatment. </p>
<p>In addition, section 32(3) provides that a child charged with a criminal offence has the right to procedures that are age-appropriate and rehabilitation-focused.</p>
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Read more:
<a href="https://theconversation.com/locking-up-kids-has-serious-mental-health-impacts-and-contributes-to-further-reoffending-194657">Locking up kids has serious mental health impacts and contributes to further reoffending</a>
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<p>These rights recognise that children are entitled to special protection because of their younger age, different needs and relative immaturity. Everyone detained by the government is vulnerable, but children are particularly so.</p>
<p>Although Australia has ratified both international conventions, it has done so with objections. These include giving “responsible authorities” some discretion to decide that segregation of child and adult detainees might not be beneficial if it separates children from their families. </p>
<p>However, this objection does not seem relevant to the recent legislative moves in Queensland because detaining youth offenders alongside adults is unlikely to benefit the children concerned. </p>
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<h2>Youth offenders and detention</h2>
<p>Recent news stories about the alleged <a href="https://www.abc.net.au/news/2023-08-23/qld-youth-crime-rally-brisbane-protest-juvenile-justice/102765410">criminal offences</a> committed by juveniles in Queensland are immeasurably sad. Yet, in many respects, everyone is on the same page about these issues. No one has said a child who commits a serious crime should not face consequences. </p>
<p>But consequences for youth offenders must take into account their age, intellectual and physical development and disabilities, and potential for rehabilitation. </p>
<p>Even when a child who has committed a serious offence is sentenced to a significant term of imprisonment, the Victorian Supreme Court has <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2007/489.html">noted</a> his or her prospects for rehabilitation are “very much more advanced” by serving the term in youth detention rather than an adult prison. </p>
<p>In other words, youth offenders should not be held in detention facilities with adults. Police watch houses and adult detention centres are not safe places for any young person. </p>
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Read more:
<a href="https://theconversation.com/we-cant-go-shopping-without-police-coming-north-queenslands-at-risk-youth-feel-excluded-and-heavily-surveilled-211885">'We can’t go shopping without police coming': north Queensland's at-risk youth feel excluded and heavily surveilled</a>
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<p>The Youth Advocacy Centre <a href="https://yac.net.au/2023/05/11/queensland-locking-up-more-children-than-any-other-state">reports</a> that more children are incarcerated in Queensland than in any other state. This is an appalling statistic, especially because many young offenders have themselves been <a href="https://yac.net.au/2023/01/30/stop-youth-crime-get-smarter-not-tougher/">victims of crime</a>, trauma or abuse, were raised in unsafe families or <a href="https://theconversation.com/does-our-child-protection-system-cause-young-people-to-commit-crimes-the-evidence-suggests-so-127024">out of home care</a>, or have severe disabilities. </p>
<p>The Queensland government claims the recent legislative moves to override the Human Rights Act will enhance community safety and clarify administrative arrangements for youth detention. However, there is overwhelming <a href="https://www.qcoss.org.au/communities-less-safe-detaining-kids">evidence</a> that youth detention does not necessarily make communities safer or deter or rehabilitate young offenders. In fact, it may increase the likelihood of <a href="https://www.couriermail.com.au/news/opinion/opinion-stop-this-mad-race-to-the-bottom-on-youth-justice/news-story/8777ccb214f43089b4741d94976b810c">reoffending</a>.</p>
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<h2>Concerning trend of legislative overrides</h2>
<p>Rather, these amendments in Queensland are largely serving a political purpose. This is because any move by a parliament to override an established law should only be done in exceptional circumstances, such as a war, state of emergency or crisis threatening public safety, health or order. </p>
<p>In Victoria, the override provision in the <a href="https://www.legislation.vic.gov.au/in-force/acts/charter-human-rights-and-responsibilities-act-2006/015">Charter of Human Rights and Responsibilities</a> has been used in the past in situations that did not appear to meet the exceptional circumstances threshold. In 2015, a review of the charter recommended the repeal of the override power, calling it unnecessary and unhelpful. </p>
<p>Surprisingly, no such overrides were declared either in Victoria or Queensland – the two states that have human rights laws with this provision – during the COVID-19 public health emergency. </p>
<p>As the Queensland parliament’s actions demonstrate, legal protections for human rights remain frail and subject to the whims of governments or the prevailing moods of their electorates. The Human Rights Act itself is an ordinary law, which means future governments could dilute, amend or even repeal it. (Hopefully, Queenslanders would not stand for this.) </p>
<p>The Act can also be weakened if the parliament overrides its protections too many times. Queensland has now done it twice in six months. This must be taken seriously. Let’s hope we don’t see a pattern of these types of actions – it would make a mockery of human rights protections in Queensland. </p>
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Read more:
<a href="https://theconversation.com/raising-the-age-of-criminal-responsibility-is-only-a-first-step-first-nations-kids-need-cultural-solutions-186201">Raising the age of criminal responsibility is only a first step. First Nations kids need cultural solutions</a>
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<p class="fine-print"><em><span>Nicky Jones does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In six months, the state’s parliament has voted to override its own Human Rights Act, not once but twice.Nicky Jones, Senior Lecturer, University of Southern QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2103612023-08-21T12:25:17Z2023-08-21T12:25:17ZThe idea that imprisonment ‘corrects’ prisoners stretches back to some of the earliest texts in history<figure><img src="https://images.theconversation.com/files/543081/original/file-20230816-27-7c81zv.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C1022%2C873&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Hymn to the Goddess Nungal, on display at the Institute for the Study of Ancient Cultures at the University of Chicago.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Hymn_to_the_goddess_Nungal_by_a_scribe_accused_of_a_capital_offense_-_Oriental_Institute_Museum,_University_of_Chicago_-_DSC07107.JPG">Daderot/Wikimedia Commons</a></span></figcaption></figure><p>Prisons are places of suffering. But in theory, they aim for something beyond punishment: reform.</p>
<p>In the United States, the goal of prisoner rehabilitation can be traced back, in part, to the 1876 opening of <a href="https://nyupress.org/9780814766231/benevolent-repression/">the Elmira Reformatory</a> in upstate New York. Purported to be an institution of “benevolent reform,” the reformatory aimed to transform prisoners, not just deprive them – though founder Zebulon Brockway, known as the “Father of American Corrections,” was notoriously harsh. </p>
<p>Other states soon adopted the reformatory model, and the notion that prisons are <a href="https://global.oup.com/academic/product/prisons-in-ancient-mesopotamia-9780192849618?cc=us&lang=en&">places to “correct” people</a> has become a staple of the judicial system.</p>
<p>But the idea that imprisonment and suffering were supposedly good for the prisoner didn’t emerge in the 19th century. The earliest evidence <a href="https://global.oup.com/academic/product/prisons-in-ancient-mesopotamia-9780192849618?cc=us&lang=en&">goes back some 4,000 years</a>: to a hymn in Mesopotamia, in modern-day Iraq, praising a prison goddess named Nungal.</p>
<p>Almost a decade ago, <a href="https://rts.academia.edu/NicholasReid">as a graduate student</a> researching <a href="https://ora.ox.ac.uk/objects/uuid:a693cd93-092e-4118-ae02-b9775bc2285e">slavery in early Mesopotamia</a>, I came across numerous texts dealing with imprisonment. Some were administrative documents dealing with everyday accounting information. Others were legal texts, literature or personal letters. I became fascinated with <a href="https://global.oup.com/academic/product/prisons-in-ancient-mesopotamia-9780192849618?cc=us&lang=en&">imprisonment in these cultures</a>: Most of them detained suspects only briefly, but in literary and ritual texts, imprisonment was seen as a transformative, purifying experience.</p>
<h2>The ‘house of life’</h2>
<p>Around 1,800 B.C., students training as scribes at Nippur, an ancient Sumerian city, frequently copied from a selection of <a href="https://www.isdistribution.com/BookDetail.aspx?aId=17307">10 literary works</a>. Using cuneiform, these aspiring scribes would copy texts that included the exploits of the legendary hero Gilgamesh as he <a href="https://etcsl.orinst.ox.ac.uk/section1/tr1815.htm">fought the beast Huwawa</a>, the fearsome <a href="https://www.britishmuseum.org/collection/object/W_1883-0118-AH-2598">guardian of the forest</a>. They wrote about <a href="https://etcsl.orinst.ox.ac.uk/section2/tr24201.htm">a great Mesopotamian king named Šulgi</a>, <a href="https://cdli.ox.ac.uk/wiki/doku.php?id=biography_shulgi">who claimed to be a god</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/543082/original/file-20230816-46396-o65x9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A slate-colored ancient seal has characters and an etching of a kneeling man holding a lion above his head." src="https://images.theconversation.com/files/543082/original/file-20230816-46396-o65x9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543082/original/file-20230816-46396-o65x9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=389&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543082/original/file-20230816-46396-o65x9h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=389&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543082/original/file-20230816-46396-o65x9h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=389&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543082/original/file-20230816-46396-o65x9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=489&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543082/original/file-20230816-46396-o65x9h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=489&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543082/original/file-20230816-46396-o65x9h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=489&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A seal from around the ninth-seventh century B.C. shows Gilgamesh overpowering a lion.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/seal-depicting-a-bearded-hero-gilgamesh-kneeling-and-news-photo/152191411?adppopup=true">Werner Forman/Universal Images Group/Getty Images</a></span>
</figcaption>
</figure>
<p>And as the master scribe dictated these various texts, the students also heard about a prison goddess named Nungal.</p>
<p>Though her justice was inescapable, Nungal was also celebrated for her compassion. Her “house” brought suffering upon prisoners, whose sorrow gave rise to lament. Through that lament, however, prisoners could be purified of their sins and made right with their personal gods, who were their protectors and mediators before <a href="https://www.metmuseum.org/toah/hd/deit/hd_deit.html">the greater gods</a>. </p>
<p>The “Hymn to Nungal,” which dates from the second <a href="https://www.harrassowitz-verlag.de/title_5565.ahtml">or third millennium B.C.</a>, details how a guilty prisoner sentenced to death was not killed, but snatched “from the jaws of destruction” and put in Nungal’s house, which she calls a “house of life” – but also a place of suffering, isolation and pain.</p>
<p>Still, the hymn describes prisoners <a href="https://etcsl.orinst.ox.ac.uk/section4/tr4281.htm">transformed by their time in prison</a>. The goddess says her house is “built with compassion, it soothes the heart of that person, and refreshes his spirits.” Eventually, she continues, they will lament and be purified in the eyes of their deity: “When it has appeased the heart of his god for him; when it has polished him clean like silver of good quality, when it has made him shine forth through the dust; when it has cleansed him of dirt, like silver of best quality … he will be entrusted again into the propitious hands of his god.”</p>
<h2>Fact vs. fiction</h2>
<p>The extent to which the ancients <a href="https://www.classics.ox.ac.uk/event/the-gods-in-literature-myth-theology-and-belief-in-ancient-near-eastern-and-greek-poetry">believed such stories about the gods</a> remains a matter of debate. Were texts like the “Hymn to Nungal” matters of sincere religion or just fairy tales that no one took seriously?</p>
<p>Since it is a literary text, it is not a reliable source about the justice system, either. Mesopotamian kingdoms during that time seem to have used prisons to detain suspects prior to punishment, similar to jails that hold suspects before trial today. They also <a href="https://global.oup.com/academic/product/prisons-in-ancient-mesopotamia-9780192849618?cc=us&lang=en&">detained people to force them to pay a fine or debt</a>, and to coerce labor – sometimes for over three years. But punishment, which typically involved physical or financial consequences, did not include time in prison.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/543108/original/file-20230816-17-g5ko5q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A faded blue tile shows tan-colored figures walking in a line." src="https://images.theconversation.com/files/543108/original/file-20230816-17-g5ko5q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543108/original/file-20230816-17-g5ko5q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=285&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543108/original/file-20230816-17-g5ko5q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=285&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543108/original/file-20230816-17-g5ko5q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=285&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543108/original/file-20230816-17-g5ko5q.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=358&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543108/original/file-20230816-17-g5ko5q.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=358&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543108/original/file-20230816-17-g5ko5q.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=358&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A detail from the Standard of Ur, from third-millennium B.C. Sumeria, shows prisoners of war between soldiers. (Held in the British Museum)</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Standard_of_Ur_-_War_-_Detail_Top_Right.jpg">LeastCommonAncestor/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>Still, detainment entailed suffering, with one prisoner describing the “prison” as a “house of distresses or famine” in <a href="https://brill.com/edcollbook/title/3183">a letter written to his superior</a>. <a href="https://brill.com/display/title/297">In another text</a>, the sender says he was released but complains of beatings that another prisoner endured as part of the investigative process – although the sender does not mention the nature of the suspected offense. </p>
<p>However, scholars <a href="https://www.harrassowitz-verlag.de/title_5565.ahtml">Klaas Veenhof</a> and <a href="https://www.lesbelleslettres.com/livre/9782251446714/la-vie-meconnue-des-temples-mesopotamiens">Dominique Charpin</a> have found evidence of Nungal playing a role in the judicial process. At some temples, oaths would be taken in the presence of a throw-net, similar to what is used to cast for fish, which symbolized Nungal and inescapable justice.</p>
<p>The vision cast in the hymn was likely folded into a later ritual practice where imprisonment was used to purify the king. During <a href="http://www.islet-verlag.de/BandAmbos2.html">the New Year festival</a>, the king was stripped of his regalia and entered a makeshift prison made of reeds, where the king offered prayers to the gods for his sins. Through prayer and ritual, he was deemed purified and able to resume his royal duties.</p>
<h2>Yesterday and today</h2>
<p>While most people may not have spent long periods in Mesopotamian prisons, <a href="https://global.oup.com/academic/product/prisons-in-ancient-mesopotamia-9780192849618?cc=us&lang=en&">they did suffer in them</a>. Perhaps it is that experience that caused a text like the “Hymn to Nungal” to be written, exploring how such an experience could be used <a href="http://www.islet-verlag.de/BandAmbos2.html">to reform the prisoner through lament</a>. </p>
<p>The notion that imprisonment can be good is pervasive, but is it accurate? How prison systems think about reform is very different today than how the “Hymn to Nungal” envisions it. Yet the powerful idea that suffering can be good for prisoners has deep historical roots – allowing incarceration systems to claim that the suffering within their walls is compassionate.</p><img src="https://counter.theconversation.com/content/210361/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>J. Nicholas Reid does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Mesopotamia’s prisons were built for detaining people, not punishing them. But they shaped powerful ideas about justice and reform that aren’t so different from today’s.J. Nicholas Reid, Professor Old Testament and Ancient Near Eastern Studies, Reformed Theological SeminaryLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2114592023-08-11T20:31:29Z2023-08-11T20:31:29ZTrump’s free speech faces court-ordered limits, like any other defendant’s – 2 law professors explain why, and how Trump’s lawyers need to watch themselves too<figure><img src="https://images.theconversation.com/files/542406/original/file-20230811-32774-57feev.jpeg?ixlib=rb-1.1.0&rect=24%2C36%2C8179%2C5424&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The E. Barrett Prettyman U.S. Courthouse in Washington, D.C., where an Aug. 11, 2023, hearing was held on the Trump case. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-e-barrett-prettyman-us-courthouse-in-washington-dc-on-news-photo/1578722707?adppopup=true">Mandel Ngan/AFP via Getty Images)</a></span></figcaption></figure><p><em>A 90-minute court hearing on Aug. 11, 2023, that would have been routine in almost any other case was, in fact, historic. It was the first time lawyers prosecuting and defending former President Donald Trump on charges he attempted to overturn the 2020 election <a href="https://www.nytimes.com/2023/08/11/us/politics/trump-judge-protective-order.html">appeared before the federal judge in the case</a>.</em> </p>
<p><em>At issue in the hearing before Judge Tanya Chutkan were public statements about what in legal terms is called “discovery” – defined by the American Bar Association as “<a href="https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery/">the formal process of exchanging information between the parties about the witnesses and evidence they will present at trial</a>.” Prosecutors from the Department of Justice wanted Chutkan to bar Trump and his lawyers from releasing or commenting publicly on those materials with something called a “protective order,” because public comments could end up intimidating witnesses or tainting the pool of potential jurors. Trump’s lawyers said any limit on the right to speak about the documents violated Trump’s free speech rights.</em></p>
<p><em>Chutkan told Trump’s lawyers <a href="https://www.documentcloud.org/documents/23907641-protective-order-in-us-v-trump">she would impose limits on what he could say</a>. “I caution you and your client to take special care in your public statements in this case,” she said. “I will take whatever measures are necessary to protect the integrity of these proceedings.” The Conversation’s senior politics and society editor, Naomi Schalit, interviewed attorneys Thomas A. Durkin and Joseph Ferguson, law professors at Loyola University, Chicago, about the hearing.</em></p>
<h2>Do people lose their First Amendment rights when they are criminally indicted?</h2>
<p><strong>Durkin</strong>: You don’t really lose your rights, but the discovery process requires certain restrictions on what you can do with what are essentially government documents and information. So I’m not sure that’s a restriction of the First Amendment. From what I heard, the judge said to Trump and his lawyer, certain things are going to be restricted, and some of your rights are going to be limited. I don’t see that as a horribly difficult imposition.</p>
<p><strong>Ferguson</strong>: A defendant experiences this as a constraint. <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/durkin-thomas.shtml">But Tom</a> <a href="https://www.luc.edu/law/faculty/facultyandadministrationprofiles/ferguson-joseph.shtml">and I</a> know, as longtime lawyers, if you put yourself in that situation, you’re not being constrained from doing something you otherwise have a right to do. You have put the constraint on yourself. </p>
<p>This is not a limitation on Trump’s standing free speech rights. They are not absolute and must operate within the confines of the competing interest of justice in this case. The initial reports are that the judge has made clear that justice trumps other considerations. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542405/original/file-20230811-17-uco1u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three men in suits walk along a sidewalk." src="https://images.theconversation.com/files/542405/original/file-20230811-17-uco1u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542405/original/file-20230811-17-uco1u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542405/original/file-20230811-17-uco1u.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542405/original/file-20230811-17-uco1u.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542405/original/file-20230811-17-uco1u.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542405/original/file-20230811-17-uco1u.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542405/original/file-20230811-17-uco1u.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Attorneys for former U.S. President Donald Trump − John Lauro, left, and Todd Blanche, right − arrive at the E. Barrett Prettyman U.S. Courthouse on Aug. 11, 2023, in Washington, D.C.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/attorneys-for-former-u-s-president-donald-trump-todd-news-photo/1607549903?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<h2>What did the judge say?</h2>
<p><strong>Ferguson</strong>: The judge has signaled that Trump’s rights as a criminal defendant are subject to the rules of the court. This will frame all subsequent decisions. The judge and the lawyers as officers of the court have a responsibility to ensure the integrity of the proceedings, against the backdrop of the integrity of the criminal justice system. </p>
<p>Trump and his team are attempting to infuse politics into the case and <a href="https://apnews.com/article/trump-retribution-indictment-documents-biden-american-democracy-5a8ec37b359fee85d0f0956139d79f51">denigrate, delegitimize and politicize the prosecutors</a> and the court itself and all of the players. That heightens the need for the judge to lay down the bright line. The normal concerns for a judge in these cases is the possible tainting of the jury pool, the intimidation of witnesses and other forms of interference with the process of justice.</p>
<p>We are not just talking only about the defendant. His lawyers have been appearing everywhere on TV. What the judge says and rules about the limitations on what lawyers can say – and her enforcement of those – may be as important as anything else here. Trump’s lawyers are his proxies not only for the case itself but for his political purposes, to try the case in the public.</p>
<p><strong>Durkin</strong>: I recently said that it seemed to me Trump was looking for a mouthpiece and not a lawyer. And I think there is a fear, as Joe says, of the client dictating to the lawyers what to do. A lot of people have commented publicly how unprofessional the quotes of many of his lawyers seem to be and that they seem to be sometimes making <a href="https://www.thedailybeast.com/msnbc-panel-stunned-by-trump-lawyer-john-lauros-admission-on-fox-news">admissions on his behalf</a>. They don’t seem to be very experienced in dealing with the press.</p>
<p>Where I would probably part company a little bit with Joe is that it’s of course the defendant’s lawyers’ desire to <a href="https://ncpro.sog.unc.edu/manual/223-3">taint the jury pool</a>. That’s the name of the game. But there are ways to do it professionally and there are ways not to do it. </p>
<h2>The government is pushing for a speedy trial. How does that strike you?</h2>
<p><strong>Ferguson</strong>: There is something bigger that’s involved here. Existing Department of Justice practice is you don’t take a matter to trial in the <a href="https://www.nytimes.com/2022/09/04/us/trump-investigations-midterm-elections.html">60 days before an election</a>. That is certainly on the prosecution’s mind. But one thing that those rules really don’t contemplate is the contemporary world, in which we’re in a constant state of elections and electioneering, which is certainly the case for Trump.</p>
<p><strong>Durkin</strong>: It’s kind of a reverse of the typical kind of case. And the government is attempting to dump all this discovery material on the defense right away so that Trump’s lawyers can’t claim, “We need more time.” </p>
<h2>The court session on Friday was focused on the terms of a protective order, which would determine what materials and information could be made public, right?</h2>
<p><strong>Ferguson</strong>: These orders are routine in any case that includes highly sensitive information or itself is a matter of major public controversy. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/542359/original/file-20230811-25-1lxw2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People wave Trump and DeSantis banners, along with a large picture of Trump's face, as they sit on top of a float with a red, white and blue star banner on the side of it." src="https://images.theconversation.com/files/542359/original/file-20230811-25-1lxw2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542359/original/file-20230811-25-1lxw2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542359/original/file-20230811-25-1lxw2d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542359/original/file-20230811-25-1lxw2d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542359/original/file-20230811-25-1lxw2d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542359/original/file-20230811-25-1lxw2d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542359/original/file-20230811-25-1lxw2d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Members of the Republican Party in Iowa show support for different 2024 candidates, including former president Donald Trump, at the Iowa State Fair on Aug. 9, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-republican-party-of-iowa-show-their-support-news-photo/1604340712?adppopup=true">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>So the hearing was about what Trump’s lawyers could say, not just Trump?</h2>
<p><strong>Durkin</strong>: I’m working on a case where the judge’s protective order requires that anything that’s going to be filed that is sensitive material has to be filed under seal. That greatly limits the lawyers’ ability to file speaking motions – motions with a lot of detail – in the public domain. Speaking motions, like Smith’s speaking indictment, are one of the ways a good defense lawyer can attempt to influence the jury, because you can dump documents into pleadings with impunity. </p>
<h2>So you’re saying that lawyers can use those motions as a way to sneak in stuff that normally wouldn’t be able to get before the public.</h2>
<p><strong>Durkin</strong>: Yes.</p>
<h2>What did the prosecution ask for in this hearing?</h2>
<p><strong>Durkin</strong>: From what I understood, the prosecution wanted everything to be labeled sensitive, which is very unusual. </p>
<h2>If materials are labeled sensitive, you have to keep your lips zipped?</h2>
<p><strong>Durkin</strong>: Yes. It relates to who you can show the materials to, whether you can leave them copies, whether you have to file them under seal or not. And that’s not an uncommon fight that people have. </p>
<h2>So the government wanted to just get this done with and call everything sensitive and not have fights about each document they’re giving the defense.</h2>
<p><strong>Ferguson</strong>: There are two approaches here. One is the government’s approach, which is just put the whole thing under the protective order so the defense gets immediate access, and the judge and the parties can sort out problems later as the case moves along. While the defense wants it sorted out now, which would take time and cause delay. </p>
<h2>At one point, Trump’s lawyers said keeping all of the discovery documents secret would be giving an advantage to Joe Biden.</h2>
<p><strong>Ferguson</strong>: I look at that as goading the judge into conceding that what she’s doing is going to have an effect on politics. She didn’t bite – she kept a clean line here, saying, not my role, not my concern.</p><img src="https://counter.theconversation.com/content/211459/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What can President Trump and his lawyers say about documents and witness statements used as evidence in his upcoming trial over his alleged attempt to overturn the 2020 presidential election?Thomas A. Durkin, Distinguished Practitioner in Residence, Loyola University ChicagoJoseph Ferguson, Co-Director, National Security and Civil Rights Program, Loyola University ChicagoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2111532023-08-11T14:14:53Z2023-08-11T14:14:53ZWhy imprisoning repeat shoplifters rarely breaks the cycle of offending – and what may work better<figure><img src="https://images.theconversation.com/files/541706/original/file-20230808-25-1obzzr.jpg?ixlib=rb-1.1.0&rect=0%2C16%2C5364%2C3910&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The possibility of introducing mandatory prison sentences for prolific shoplifters has been mooted by government ministers. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/londonenglandunited-kingdomjuly-21-2019-waterloo-rail-1676652064">Neil Bussey/Shutterstock</a></span></figcaption></figure><p>The UK government is taking a <a href="https://www.gov.uk/government/news/action-plan-to-crack-down-on-anti-social-behaviour">harsher approach</a> to tackle criminal activity which is blighting local neighbourhoods. And recently, government ministers have been talking tough about repeat shoplifting, including <a href="https://www.thetimes.co.uk/article/shoplifters-face-prison-under-crime-crackdown-ggdbv3j99">the possibility</a> of introducing new laws which would see prolific shoplifters imprisoned. This has all been against a backdrop of concern about a <a href="https://www.theguardian.com/society/2023/jun/01/one-guy-uses-us-like-a-larder-the-british-shoplifting-crisis-as-seen-from-the-tills">rise in shoplifting</a> across the UK.</p>
<p>But there are some serious practical problems with any such measures and questions remain over whether such a policy could break the cycle of offending. Meanwhile, there is an innovative approach to this issue which may be a better way of dealing with crimes such as shoplifting called “<a href="https://www.gov.uk/guidance/integrated-offender-management-iom">integrated offender management</a>” (IOM). </p>
<p>Rolled out over the past few years, IOM is a novel criminal justice approach that is designed to break the cycle of re-offending. It is operated by 39 out of 43 police forces in England and Wales. </p>
<p>IOM involves police officers working closely with prison and probation services and criminal justice intervention teams. These are support staff who provide both clinical and therapeutic interventions for drug users involved in the criminal justice system. It is all in an effort to change or control the criminal activities of prolific offenders. </p>
<p>IOM was designed to address the underlying causes of offending. By the end of 2020, it was <a href="https://www.gov.uk/government/publications/integrated-offender-management-strategy">central</a> to the government’s neighbourhood crime strategy. In a report issued that year, former minister for crime and policing Kit Malthouse and former minister for prisons and probation, Luzy Frazer, said: </p>
<p>“We need a new approach – one with the tools to come down with full force on those responsible, but which also encourages rehabilitation and supports offenders to overcome the complex problems that we know can fuel this type of behaviour, such as substance misuse, poor mental health and issues with housing or employment.”</p>
<p>Any proposals which would see prison sentences for repeat shoplifters could risk undoing any positive progress made under IOM. </p>
<h2>The problem with prison</h2>
<p>The UK’s prison estate is running out of capacity for adult males. In November 2022, <a href="https://www.theguardian.com/society/2022/nov/30/uk-government-requests-urgent-police-cells-male-prisoners">the Ministry of Justice announced</a> emergency measures that would see some offenders who would ordinarily be imprisoned (typically remand prisoners) housed in police cells. <a href="https://www.gov.uk/government/publications/prison-population-figures-2023">Figures</a> released in August 2023 show a total of just 980 available prison places.</p>
<p>The government has <a href="https://www.gov.uk/government/news/500-million-boost-to-create-thousands-of-new-prison-places">already stated</a> that more prisons need to be built. But any criminal justice initiative that requires new prisons will take a long time to deliver. This is because, on average, new prisons take <a href="https://consult.justice.gov.uk/digital-communications/proposed-new-prison-in-chorley/supporting_documents/chorleynewprisonconsultation.pdf">two to three years to build</a> and open. </p>
<p>Also, <a href="https://www.centreforsocialjustice.org.uk/wp-content/uploads/2018/10/CSJ-Desperate-for-a-fix-WEB-1.pdf">70% of shoplifting</a> is estimated to be carried out by people funding an addiction to class A drugs – typically heroin and crack cocaine. These people arrive in prison as addicts and likely leave as addicts and so will continue shoplifting. Custody is not a panacea for prolific shoplifting and is unlikely to break the cycle of offending. </p>
<h2>Integrated offender management</h2>
<p>IOM work is done through a mix of rehabilitative and restrictive or enforcement-orientated interventions. Here, the police take a “<a href="https://www.tandfonline.com/doi/full/10.1080/10439463.2018.1547719">carrot and stick</a>” approach to the management of offenders. Plain-clothed officers, deployed as police offender managers, gather intelligence and monitor people for signs of re-offending. </p>
<p>Simultaneously, these officers attempt to draw offenders away from crime by working alongside the other agencies, facilitating access to drug services, education, employment and transitions into stable housing arrangements. This is the “carrot” approach. </p>
<figure class="align-left ">
<img alt="A police officer wearing a yellow high visibility jacket" src="https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=715&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=715&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=715&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=899&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=899&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542123/original/file-20230810-18-i6hwim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=899&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Integrated offender management involves police officers working closely with other agencies.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-uk-19th-april-2019-police-1392717764">John Gomez/Shutterstock</a></span>
</figcaption>
</figure>
<p>Where there is evidence that a person is failing to comply with licence conditions, or engage with IOM positively, traditional catch-and-convict policing methods are used by uniformed patrol officers. This is the “stick” approach.</p>
<p>Prolific shoplifters are the type of offenders IOM schemes should be engaging with. </p>
<p>My own <a href="https://www.routledge.com/Integrated-Offender-Management-and-the-Policing-of-Prolific-Offenders/Cram/p/book/9780367254148">research</a> has focused on how police officers contribute to IOM schemes. </p>
<p>I have also spoken with offenders who were engaged with IOM in the community. A number said that, while it was initially challenging to do so, in time they were able to form working relationships with police officers. </p>
<p>And, significantly, because of this, IOM had had a positive impact on their lives. This was particularly the case when it came to IOM helping them enter employment and tackle any drug-related issues they were experiencing. </p>
<p>Broadly, IOM seemed to have a strong motivational influence and a positive impact on those who wanted to leave their criminal lifestyle behind. </p>
<p>But IOM can only fully operate when people are able to access the relevant support services in the community. People may be able to get very limited employment and substance misuse help when in prison, but IOM offers a much deeper and enduring level of support. </p>
<p>The prospect of removing sentencing discretion for prolific shoplifters from magistrates and judges and introducing mandatory jail sentences, would risk disrupting a significant criminal justice programme. IOM may be a better and more cost effective way to deal with the pressing issue of repeated shoplifting.</p><img src="https://counter.theconversation.com/content/211153/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>My original research, on Integrated Offender Management, was supported by the Economic and Social Research Council. Grant number: EF/H011382/1.</span></em></p>Integrated offender management is a better way of dealing with shoplifters than prison.Frederick Cram, Lecturer in Law, Cardiff UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2109342023-08-09T12:30:53Z2023-08-09T12:30:53ZDonald Trump is right − he is getting special treatment, far better than most other criminal defendants<figure><img src="https://images.theconversation.com/files/541557/original/file-20230807-27-gfyv3v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The former president boards his plane at Reagan National Airport following his Aug. 3, 2023, arraignment in Washington. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-boards-his-plane-at-news-photo/1590575964?adppopup=true">Win McNamee/Getty Images</a></span></figcaption></figure><p>Former President Donald Trump often <a href="https://apnews.com/article/trump-retribution-indictment-documents-biden-american-democracy-5a8ec37b359fee85d0f0956139d79f51">complains that he is being treated unfairly</a> by the prosecutors charging him with crimes.</p>
<p>Trump is now <a href="https://www.politico.com/interactives/2023/trump-criminal-investigations-cases-tracker-list/">the subject of three federal and state criminal cases</a> – and it is true that he is being treated unlike other criminal defendants. </p>
<p>The prosecutors are treating Trump a lot better than the average criminal defendant. </p>
<p>We <a href="https://scholar.google.com/citations?user=XiBXb6cAAAAJ&hl=en">are law scholars</a> who have defended clients in <a href="https://scholar.google.com/citations?user=9GZnzpQAAAAJ&hl=en">criminal and civil cases,</a> and <a href="https://scholar.google.com/citations?user=9GZnzpQAAAAJ&hl=en">we wish that</a> our clients received the advantages that prosecutors are giving Trump. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/541563/original/file-20230807-34729-7hx701.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump is seen pumping his fist in the air, benefath a Trump Tower sign in gold, and standing among other men in suits," src="https://images.theconversation.com/files/541563/original/file-20230807-34729-7hx701.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/541563/original/file-20230807-34729-7hx701.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541563/original/file-20230807-34729-7hx701.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541563/original/file-20230807-34729-7hx701.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541563/original/file-20230807-34729-7hx701.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541563/original/file-20230807-34729-7hx701.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541563/original/file-20230807-34729-7hx701.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump leaves Trump Tower ahead of his arraignment in New York in April 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-pumps-his-fist-as-he-news-photo/1479780014?adppopup=true">Scott Olson/Getty Images</a></span>
</figcaption>
</figure>
<h2>Early warnings</h2>
<p>Trump’s unique treatment began before he was even charged with any crime.
First, he had ample warning of the investigations because he got <a href="https://theconversation.com/what-is-a-target-letter-3-things-to-know-about-how-the-justice-department-notifies-suspects-like-donald-trump-ahead-of-possible-charges-210032">letters from the Justice Department</a> saying he was a target of each investigation. These letters were sent to Trump a few weeks before his two federal indictments in June and July 2023.</p>
<p>Especially in <a href="https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.152">white-collar cases</a>, criminal defendants sometimes receive <a href="https://apnews.com/article/trump-jan-6-investigation-2020-election-7caa4d45b9dc287af868aa12f87fe254">target letters</a> that warn them of an impending indictment and sometimes give them the chance to testify.</p>
<p>But target letters generally lack detail and are far from the norm across all criminal cases. Target letters are not legally required. The Justice Department spells out various reasons why its prosecutors <a href="https://www.justice.gov/jm/jm-9-11000-grand-jury#9-11.153">do not need to send them</a>, including risks of a defendant destroying evidence or endangering witnesses.</p>
<h2>The difference freedom makes</h2>
<p>After Trump was charged with crimes in each of his three pending cases, his lawyers negotiated dates when he could submit to authorities for processing. </p>
<p>And after Trump’s brief arraignments in court, judges found he was <a href="https://www.cnn.com/politics/live-news/donald-trump-indictment-court-appearance-06-13-23/h_a1a9eac55c1638585e314ea458d23729">not a flight risk</a> and released him. </p>
<p>Most criminal defendants are just arrested and taken to jail, where they may sit for months or even years while they await trial, unless they plead guilty. <a href="https://scholarlycommons.law.northwestern.edu/nulr/vol115/iss5/1/">Three-quarters</a> of federal criminal defendants are locked up to await trial. </p>
<p>It is hard for detained defendants to <a href="https://www.brennancenter.org/our-work/research-reports/conviction-imprisonment-and-lost-earnings-how-involvement-criminal">recover lost wages and from the humiliation</a> they experience while in jail, even if they defy the odds and later win their case. </p>
<p>Pretrial detention has also been shown to result in a higher <a href="https://www.aeaweb.org/articles?id=10.1257/aer.20161503">chance of being convicted</a> and <a href="https://academic.oup.com/jleo/article/34/4/511/5100740">receiving longer sentences</a>. </p>
<p>Indeed, defendants in courts across the country plead guilty to crimes <a href="https://clearinghouse.net/doc/91291/">even if they are innocent</a>, in part because pleading guilty gets them home sooner. For some defendants, the pretrial detention is longer than their actual punishment will be, so pleading guilty resolves the case with credit for time served. But the stain of a conviction stays on their record forever.</p>
<h2>Benefits of time and freedom</h2>
<p>Because Trump is not sitting in jail, he is well positioned to ask that his trials be postponed far longer than would an ordinary criminal case. Federal law generally requires <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/speedy-trial-act-1974-defining-sixth-amendment-right">“speedy” trials</a>, which are considered a right to protect defendants.</p>
<p>Trump got a lengthy delay, though it’s not as long as his legal team requested. Trump asked that his classified documents trial be held after the November 2024 election, but his trial is scheduled to <a href="https://www.nytimes.com/2023/07/21/us/politics/trump-classified-documents-trial-date-cannon.html">begin in May 2024</a>. Federal prosecutors pushed for a December 2023 start date. These kinds of compromise decisions are common in legal decisions like deciding court dates.</p>
<p>This timing gives Trump’s lawyers nearly a year to prepare arguments in his favor. They can easily meet with their client to do so, something that would be difficult if Trump were incarcerated.</p>
<p>Most criminal defendants face a very different experience. </p>
<p>For example, after federal prosecutors charged Air Force reservist Jack Teixeira in June 2023 for <a href="https://www.justice.gov/opa/pr/air-national-guardsman-indicted-unlawful-disclosure-classified-national-defense-information">revealing classified information</a>, he asked for provisions similar to those that judges made <a href="https://www.cnn.com/2023/07/17/politics/jack-teixeira-out-of-jail-classified-trump/index.html">for Trump</a>. </p>
<p>He argued that he, too, should be released to await trial. Teixeira did not have Trump’s wealth and easy ability to flee. </p>
<p>Nonetheless, the court determined that Teixeira poses a national security threat and must remain in jail. The case is still pending. </p>
<p>Other <a href="https://greaterjusticeny.vera.org/nycjail/">criminal defendants spend years in jail</a> before pleading guilty or perhaps going to trial.</p>
<h2>A treasure-trove of information</h2>
<p>The differences do not stop there. </p>
<p>Prosecutors in all three of Trump’s cases have explained, in great detail, the allegations against him. </p>
<p>The <a href="https://www.washingtonpost.com/national-security/2023/08/01/indictment-document-trump-jan-6-pdf/">classified documents indictment</a> recounted several text message conversations between Trump aides and transcribed a conversation in which Trump disclosed the contents of classified documents and acknowledged their classified status. </p>
<p>The indictment regarding Trump’s alleged plot to overturn the 2020 election results was <a href="https://www.documentcloud.org/documents/23893878-trump-dc-indictment">45 pages long</a> and included a play-by-play description of his plan. </p>
<p>Early in the documents case, federal prosecutors publicly disclosed <a href="https://www.nytimes.com/2023/07/21/us/politics/trump-classified-documents-trial-date-cannon.html">key information about their investigation</a> that could have helped Trump’s legal defense.</p>
<p>In contrast, criminal defendants typically do not know the precise allegations facing them this early in a case. </p>
<p>Prosecutors often withhold documents until the eve of trial or <a href="https://www.law.cornell.edu/uscode/text/18/3500">wait until after key witnesses have testified</a>, all of which is legal. <a href="https://www.law.umich.edu/special/exoneration/Documents/Government_Misconduct_and_Convicting_the_Innocent.pdf">In some cases, they fail to disclose</a> the information. </p>
<h2>The other side of the coin</h2>
<p>Prosecutors’ decision to treat Trump differently from other criminal defendants could serve a few purposes.</p>
<p>The Justice Department is prosecuting a former president. That puts the department in a delicate, high-profile position, where it has the “Herculean task of putting an ethical rope through a needle,” as one former <a href="https://www.politico.com/news/2023/07/12/trump-lawsuits-doj-dissonance-00105919">federal prosecutor has said.</a> </p>
<p>So, prosecutors’ detailed indictments help inform the public about the breadth and depth of the allegations made against Trump.</p>
<p>Their approach could add legitimacy to the prosecution’s and the Justice Department’s goal of maintaining <a href="https://abcnews.go.com/US/wireStory/justice-department-faces-biggest-test-history-election-conspiracy-102038277">accountability and independence</a> while countering Trump’s perception that the cases are “<a href="https://www.cbsnews.com/miami/news/former-president-donald-trump-federal-probe-handling-sensitive-documents-witch-hunt/">a witch hunt</a>” and rooted only in politics.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/541559/original/file-20230807-2559-1tn9ka.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People wear neon green signs and hold up large letters spelling out the word 'justice' on a city street, in front of a building that looks similar to the U.S. Capitol." src="https://images.theconversation.com/files/541559/original/file-20230807-2559-1tn9ka.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/541559/original/file-20230807-2559-1tn9ka.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/541559/original/file-20230807-2559-1tn9ka.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/541559/original/file-20230807-2559-1tn9ka.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/541559/original/file-20230807-2559-1tn9ka.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/541559/original/file-20230807-2559-1tn9ka.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/541559/original/file-20230807-2559-1tn9ka.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Demonstrators hold a sign outside of the federal courthouse in Washington, D.C., where former President Donald Trump was arraigned in August 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/demonstrators-holding-a-justice-sign-stand-outside-of-the-news-photo/1575084924?adppopup=true">Probal Rashid/LightRocket via Getty Images</a></span>
</figcaption>
</figure>
<h2>What would fairness look like?</h2>
<p>Those looking for fairness in the criminal justice system may wish to see Trump treated like an ordinary criminal defendant. But instead, what if everyone else accused of a crime were treated more like Trump?</p>
<p>In that world, perhaps most importantly, pretrial detention would be used quite sparingly and would not provide leverage to coerce guilty pleas. People who are charged with a crime have not been proven guilty, and pretrial detention inflicts serious harm on defendants, their cases and their loved ones.</p>
<p>Prosecutors would tell defendants from the earliest stage of the case the detailed allegations against them so that defendants can prepare a meaningful defense. </p>
<p>The U.S. legal system aims at the truth, and robust procedures serve that goal.</p>
<p>In our view, the more thorough the judicial process is, the more confident people can be that it reaches the right outcome – whether the case regards Trump or not. Looking at Trump’s special treatment offers a good place to start in thinking about how the criminal legal system should treat all people accused of a crime.</p><img src="https://counter.theconversation.com/content/210934/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While Trump has received early warnings ahead of indictments and detailed explanations behind the charges, criminal defendants typically get a bare-bones explanation.Christopher Robertson, Professor of Law, Boston UniversityRussell M. Gold, Associate Professor of Law, University of AlabamaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2104032023-08-01T22:18:06Z2023-08-01T22:18:06ZTrump indicted in Jan. 6 case – but his three upcoming trials may not keep him off the campaign trail<figure><img src="https://images.theconversation.com/files/539607/original/file-20230726-19-fgr8xo.jpeg?ixlib=rb-1.1.0&rect=11%2C5%2C3982%2C2652&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former U.S. President Donald Trump on June 13, 2023, after being arraigned in Miami. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-visits-the-versailles-news-photo/1258668339?adppopup=true"> Stephanie Keith/Getty Images</a></span></figcaption></figure><p>Most commentators who have discussed Donald Trump’s pending criminal trials in New York, Florida and – with the late-day revelation on Aug. 1, 2023, that he has been <a href="https://www.nytimes.com/live/2023/08/01/us/trump-indictment-jan-6">indicted by a Washington, D.C., grand jury</a> – in the nation’s capital, have concluded that those trials would require his presence. And that would compromise his ability to campaign vigorously for the Republican nomination and the presidency. </p>
<p>The U.S. Constitution protects <a href="https://supreme.justia.com/cases/federal/us/470/522/">defendants’ rights</a> to be present at their criminal trials, prohibiting the government from holding trials against a defendant in the defendant’s absence. This rule differentiates the United States from other democracies that allow criminal trials to be held in the absence of the accused. For example, <a href="https://www.npr.org/sections/thetwo-way/2013/08/26/215756246/amanda-knox-wont-attend-new-italian-trial-lawyer-says">Italy tried and convicted Amanda Knox without her presence in Italy</a> for the murder of her roommate Meredith Kercher. The conviction was later reversed.</p>
<p>And in federal prosecutions, a <a href="https://www.law.cornell.edu/rules/frcrmp/rule_43">federal rule of criminal procedure</a> appears to require the defendant to attend the entire trial. But that still doesn’t mean a defendant will turn up in court day after day. </p>
<p>In Trump’s case, it raises the question: Could the former president boycott his trials?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a suit talks at a lectern in the front of a meeting room, with an American flag behind him." src="https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=485&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=485&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539614/original/file-20230726-19-zw4cjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=485&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Manhattan District Attorney Alvin Bragg at an April 4, 2023, press conference following the arraignment of former U.S. President Donald Trump on state charges.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/manhattan-district-attorney-alvin-bragg-speaks-during-a-news-photo/1250778290?adppopup=true">Kena Betancur/Getty Images</a></span>
</figcaption>
</figure>
<h2>Federal prosecutions</h2>
<p>According to <a href="https://www.law.cornell.edu/rules/frcrmp/rule_43">Rule 43 of the Federal Rules of Criminal Procedure</a>, the defendant “must be present” at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at sentencing. This rule embodies the defendant’s constitutional right to be present at trial. And under U.S. <a href="https://supreme.justia.com/cases/federal/us/506/255/">Supreme Court precedents that interpret Rule 43</a>, a defendant absolutely must be present at the commencement of a federal criminal trial.</p>
<p>But after a trial begins, many courts have recognized the defendant’s right to voluntarily “be absent” from the rest of the trial by waiving their right to be present. At the very least, several courts have acknowledged that the trial judge has the discretion to permit the defendant’s absence. These decisions address the defendant’s knowing waiver of his constitutional right to be present at his trial. </p>
<p>In addition, they interpret an exception to federal Rule 43 <a href="https://www.federalrulesofcriminalprocedure.org/title-ix/rule-43-defendants-presence/">that allows defendants to waive their rights</a> to be present at a trial “when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial.” </p>
<p>At least one federal court <a href="https://casetext.com/case/united-states-v-sterling-10?__cf_chl_tk=9S3Qt_Ap17Qy49CSCp1KSLtG8qMTzHrD20dh8LxeTpI-1690483077-0-gaNycGzNDhA">has held</a> that a federal trial begins no later than the day of jury selection. </p>
<p>So as long as Trump knowingly waives his right to be present at his own criminal trial, the presiding judge may agree that his unique circumstances – running for the presidency – constitute sufficient grounds to acknowledge and approve a waiver.</p>
<h2>State prosecutions</h2>
<p>Similarly, where Trump faces state charges, in <a href="https://case-law.vlex.com/vid/people-v-epps-894221707">New York</a> and potentially in <a href="https://casetext.com/case/pennie-v-state">Georgia</a>, both states allow for a voluntary waiver by the defendant of their right to attend their criminal trial. The Georgia and New York state constitutions and both states’ laws protect a defendant’s right to be present at all stages of a criminal trial. They also allow for the defendant to waive this right, as long as the waiver is undertaken voluntarily. </p>
<p>That means Trump could not hold up a criminal trial by refusing to attend, since courts typically continue such trials in the public interest even in the voluntary absence of the defendant.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Five people sitting on one side of a table with papers on the table in front of them." src="https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=507&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=507&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539636/original/file-20230726-29-44gjjc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=507&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump with his attorneys inside the courtroom during his arraignment at the Manhattan Criminal Court on April 4, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-us-president-donald-trump-appears-in-court-at-the-news-photo/1250772070?adppopup=true">Seth Wenig/POOL/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Potential damage</h2>
<p>Any time a defendant refuses to attend his own criminal trial, however, there may be consequences. </p>
<p>For example, the sentencing judge may interpret a defendant’s refusal to attend as an act of disrespect for the court. Or, in the case of a jury trial, jurors may be rankled by the defendant’s voluntary absence. </p>
<p>As <a href="https://search.asu.edu/profile/3033197">a scholar of constitutional law</a>, I have no doubt that Donald Trump’s lawyers will advise him to attend. But none of these factors may matter to the former president, who seems focused most intently on delegitimizing the prosecutions as <a href="https://apnews.com/article/trump-retribution-indictment-documents-biden-american-democracy-5a8ec37b359fee85d0f0956139d79f51">politically driven persecutions</a>. </p>
<p>Trump may not be able to sit through day after day of a criminal trial. Given <a href="https://www.axios.com/2017/12/15/report-nato-altering-meeting-to-fit-trump-attention-span-1513302313">what is known about his</a> short attention span, such an outcome seems highly unlikely. </p>
<p>Even if he is able to absent himself from one or more of his pending trials voluntarily, he could and likely will argue that he faces a Hobson’s choice: attend the trial and lose the presidency, or boycott the trial and lose his freedom. </p>
<p>Many of his supporters will reject either outcome.</p><img src="https://counter.theconversation.com/content/210403/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stefanie Lindquist does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump has been indicted for crimes in connection with his efforts to overturn the 2020 election. A legal scholar looks at the law to determine whether he can boycott his upcoming trials.Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2048902023-05-09T12:23:43Z2023-05-09T12:23:43ZPutin may not outrun the warrant for his arrest – history shows that several leaders on the run eventually face charges in court<figure><img src="https://images.theconversation.com/files/524945/original/file-20230508-221323-au50ge.jpg?ixlib=rb-1.1.0&rect=587%2C284%2C3797%2C2371&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Russian President Vladimir Putin is shown in Moscow in March 2022, shortly after Russia invaded Ukraine. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1239099202/photo/topshot-russia-belarus-diplomacy.jpg?s=1024x1024&w=gi&k=20&c=3n424YJ42P5f8iJ9ypEUwoPh9b0mtpT2aAr4o6ItF7o=">Mikhaul Klimentyev/Sputnik/AFP via Getty Images</a></span></figcaption></figure><p><a href="https://www.reuters.com/world/europe/russia-warrant-against-putin-meaningless-russia-does-not-belong-icc-2023-03-17/">The Russian government</a>, U.S. President Joe Biden and <a href="https://www.latimes.com/world-nation/story/2023-03-17/icc-hague-arrest-warrant-putin-ukraine-war-crimes">mainstream Western media</a> are <a href="https://www.nytimes.com/2023/03/13/world/europe/icc-war-crimes-russia-ukraine.html">among the observers</a> who all responded to Russian President Vladimir Putin’s arrest warrant for war crimes with a shrug. </p>
<p>In March 2023, the International Criminal Court <a href="https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and">announced the warrant </a> for Putin and his commissioner for children’s rights, Maria Lvova-Belova, because they allegedly directed the abduction of Ukrainian children. The court says that these charges amount to <a href="https://www.un.org/en/genocideprevention/war-crimes.shtml">war crimes</a>.</p>
<p>While Biden said the <a href="https://www.theguardian.com/us-news/2023/mar/18/joe-biden-welcomes-icc-arrest-warrant-vladimir-putin">arrest warrant was “justified</a>,” he also noted that the International Criminal Court “is not recognized by us either.”</p>
<p>The skeptics have a point – the ICC, based in the Hague, Netherlands, does not have its own police force to execute its orders and must rely on other countries’ police to arrest the people it indicts. </p>
<p>Indeed, there are a number of barriers potentially preventing Putin’s arrest. </p>
<p>One is that Russia, like the United States, is not a member of the court – so as long as Putin does not set foot in a country that is a member of the court, he is safe from arrest. Putin also <a href="https://www.statista.com/statistics/896181/putin-approval-rating-russia/#:%7E:text=Vladimir%20Putin%27s%20approval%20rating%20in%20Russia%20monthly%201999%2D2023&text=In%20April%202023%2C%20over%2080,it%20stood%20at%2077%20percent">remains popular within Russia</a> and is unlikely to soon be overthrown and turned over by his successor.</p>
<p>But it still would be rash to assume that Putin is safe from the court’s grasp. </p>
<p>I <a href="https://scholar.google.com/citations?user=UharJuoAAAAJ&hl=en">am a scholar of criminal justice</a> who specializes in international courts and the creativity that prosecutors show in catching their targets, often under very difficult political circumstances. </p>
<p>History shows that it would require a little bit of good luck for prosecutors – and a few bad decisions by Putin – for the Russian autocrat to end up in handcuffs. But it’s far from impossible.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The silhouette of a phone shows the words, 'Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova/Belova' against a white, blue and red stripped backdrop, with a man's face on the right side of it." src="https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=366&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=366&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=366&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=460&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=460&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524940/original/file-20230508-40482-u4vpqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=460&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The ICC’s arrest warrant for Vladimir Putin is seen in a news release in March 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1248458202/photo/vladimir-putin-international-criminal-court-illustration.jpg?s=1024x1024&w=gi&k=20&c=r-_uveFMIst8mPLuEHZ2rJJZCcFP5sBXeDE-JS8WwJk=">Jonathan Raa/NurPhoto via Getty Images</a></span>
</figcaption>
</figure>
<h2>How international courts work</h2>
<p>A group of 60 countries established the <a href="https://www.icc-cpi.int/">International Criminal Court</a> in 2002 to prosecute people who commit the worst crimes, including genocide and wartime sexual violence, that violate international law. The court is part of a long line of international criminal tribunals going back to the military tribunal the U.S. and allies set up to prosecute Nazis at the end of World War II, as part of the <a href="https://www.britannica.com/event/Nurnberg-trials">Nuremberg Trials</a>. </p>
<p>There are other international criminal courts that prosecute war crimes, but the ICC is the largest and arguably most influential, since <a href="https://asp.icc-cpi.int/states-parties">123 member countries</a> fund the court and abide by its rulings. </p>
<p>Since its inception, the ICC <a href="https://www.reuters.com/world/europe/what-is-international-criminal-court-2023-03-17/#:%7E:text=The%20judges%20have%20issued%2010,of%20Congo%2C%20Mali%20and%20Uganda.">has issued 38 arrest warrants</a>, arrested 21 people, convicted 10 and acquitted four. Other suspects, like Putin, remain at large or have had their charges dropped. </p>
<p>Yet there are a number of options for prosecuting war crimes outside of the ICC that have been used in the past.</p>
<p>There are also other, smaller tribunals similar to the ICC that countries have helped set up to focus on specific conflicts. In other cases, individual countries can use their own courts to prosecute international criminals who have evaded arrest abroad.</p>
<p>In the case of the Ukraine war, Ukrainian President Volodymyr Zelenskyy has called for a new international tribunal to prosecute <a href="https://foreignpolicy.com/2023/05/04/zelensky-hague-speech-putin-ukraine-russia-icc-special-tribunal-nuremberg/">war crimes committed by Russia during the conflict</a>. Others have argued that Putin could be prosecuted in <a href="https://www.thenation.com/article/world/prosecuting-putin/">a Ukrainian court specifically designed for this purpose</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Black man in a grey suit looks at the camera, surrounded by someone in a judge's black robe and what appear to be security guards in navy outfits." src="https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524943/original/file-20230508-195023-gjpga3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former Liberian President Charles Taylor appears in court in July 2006 in the Netherlands.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/71493600/photo/former-liberian-president-charles-taylor.jpg?s=1024x1024&w=gi&k=20&c=fcL1dLZaJCAdx7DJFteUmx3wkfxIYpVDa1SxUYqSCfE=">Rob Keeris/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Lessons for Putin</h2>
<p>There have been several long but ultimately successful efforts to arrest fallen political leaders and mass murderers. </p>
<p>For example, Charles Taylor, the former president of Liberia who helped instigate a civil war in neighboring Sierra Leone in the 1990s, is now serving a 50-year prison sentence in the United Kingdom. </p>
<p>Prosecutors from an international tribunal set up in Sierra Leone announced Taylor’s indictment when he was in Ghana in 2002, forcing him to quickly flee a political conference and <a href="https://www.nytimes.com/2003/06/05/world/war-crimes-indictment-of-liberian-president-is-disclosed.html?searchResultPosition=4">head home for safety</a>. But Taylor then <a href="https://www.history.com/this-day-in-history/former-liberian-president-charles-taylor-found-guilty-of-war-crimes#:%7E:text=After%20a%20peace%20deal%20was,was%20forced%20out%20in%202003.">fell from power</a> in 2003, in the midst of a rebel insurgency. He then fled to Nigeria. </p>
<p>Eventually, Nigerian authorities <a href="https://www.theafricareport.com/73802/liberia-15-years-later-we-remember-the-long-hunt-for-charles-taylor/">arrested Taylor and handed him back to Liberia, which quickly passed him off to Sierra Leone for trial</a> in 2006. He was then <a href="https://www.cnn.com/2012/04/26/world/africa/netherlands-taylor-sentencing/index.html">convicted in 2012</a>. </p>
<p>Slobodan Milošević, the late president of Yugoslavia, was <a href="https://www.icty.org/x/cases/slobodan_milosevic/cis/en/cis_milosevic_slobodan_en.pdf">indicted by an international tribunal</a> that addressed the Balkans wars – along with two of his cronies, <a href="https://www.icty.org/x/cases/mladic/cis/en/cis_mladic_en.pdf">Ratko Mladić</a> and <a href="https://www.icty.org/x/cases/karadzic/cis/en/cis_karadzic_en.pdf">Radovan Karadžić</a> –- for crimes committed against civilians during the wars in the 1990s. </p>
<p>They, too, initially evaded jurisdiction - Milošević initially remained in power, while Mladić and Karadžić went into hiding. Serbian authorities ultimately <a href="https://www.washingtonpost.com/archive/politics/2001/06/29/serb-leaders-hand-over-milosevic-for-trial-by-war-crimes-tribunal/a209e0ed-e7d5-428e-a462-d0999d29961c/#:%7E:text=The%20decision%20to%20relinquish%20Milosevic,a%20historic%20battlefield%20in%20Kosovo.">handed Milošević over</a> to the International Criminal Court in 2001, months after he stepped down from his post in 2000. Serbian police arrested Mladić and Karadžić about a decade later. </p>
<p>All three faced trial in the Hague. Milošević died while on trial in 2006. <a href="https://news.un.org/en/story/2021/06/1093582">Mladić and Karadžić </a> are now serving <a href="https://www.bbc.com/news/world-europe-47642327#:%7E:text=After%20the%20war%2C%20Karadzic%20hid,and%20genocide%20in%20November%202017">life sentences</a>. </p>
<p>And in Finland, former Sierra Leone rebel group leader <a href="https://trialinternational.org/latest-post/gibril-massaquoi/">Gibril Massaquoi</a> is facing trial for <a href="https://civitas-maxima.org/2021/01/25/trial-of-former-ruf-commander-set-to-begin-before-finnish-court/">war crimes</a> he committed during Sierra Leone’s civil war from 1991 to 2002. </p>
<p>Prosecutors at a Sierra Leone tribunal granted Massaquoi immunity in 2009 in exchange for his testimony against other rebels. He then relocated to Finland under a witness protection program. </p>
<p>But that did not stop Finnish prosecutors, who <a href="https://civitas-maxima.org/legal-work/our-cases/gibril-massaquoi/">arrested Massaquoi in March 2020</a>. His trial is <a href="https://www.reuters.com/world/europe/finnish-appeals-court-begins-liberia-war-crime-hearing-2023-01-10/">currently under appeal</a> in Finnish court system following Massaquoi’s acquittal by a lower Finish court in 2022.</p>
<h2>Even without prosecution, life won’t be good</h2>
<p>There are people such as Omar Al-Bashir, the former president of Sudan, who have so far avoided extradition to an international court. The ICC issued an arrest warrant for Al-Bashir in 2009 for allegedly committing <a href="https://www.icc-cpi.int/darfur/albashir">genocide in the Darfur region of Sudan</a>. Al-Bashir <a href="https://www.theguardian.com/world/2023/apr/26/sudan-former-president-accused-of-genocide-may-be-free-after-prison-attack">remains in Sudan</a> and has continued to avoid the ICC’s arrest warrant. But with the current <a href="https://www.bbc.com/news/world-africa-65495539">civil war in Sudan</a>, the warring powers may yet conclude that they’re better off with Al-Bashir in the Hague and away from Sudan.</p>
<p>But even if Putin isn’t prosecuted, his life will probably get much more difficult as a result of the arrest warrant. </p>
<p>When the late Chilean dictator <a href="https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1285&context=ilsajournal">Augusto Pinochet</a> left office in 1998, he declared himself “Senator for Life,” ensuring under Chilean law that he would never be prosecuted for the tortures, killings and disappearances of leftist political opponents that <a href="https://www.cbsnews.com/news/chile-dictator-augusto-pinochet-atrocities-secrects/">took place on his watch</a>. </p>
<p>But while Pinochet was receiving care for a back injury in London, a Spanish judge requested his extradition to Spain, and <a href="https://www.theguardian.com/world/1998/oct/18/pinochet.chile">he was arrested by British police</a> in 1998.</p>
<p>After over a year of legal limbo, the British government declared that Pinochet was mentally unfit for extradition and returned him to Chile. By then, he was a very diminished man and the <a href="https://www.nbcnews.com/id/wbna16139367">target of many lawsuits</a> before his death in 2006. </p>
<p>Putin may ultimately elude prosecution, but not the effects of the charges against him. </p>
<p>History shows that prosecutors are willing to wait for years for their targets to either fall from power or make that crucial mistake that exposes them to arrest, such as a medical emergency abroad or a visit to a country that is willing to cooperate with international prosecutors.</p><img src="https://counter.theconversation.com/content/204890/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Aaron Fichtelberg does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The International Criminal Court announced an arrest warrant for Putin and his children’s rights commissioner in March 2023, alleging the illegal abduction and deportation of Ukrainian children.Aaron Fichtelberg, Associate Professor of Sociology and Criminal Justice, University of DelawareLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2036612023-04-17T01:55:12Z2023-04-17T01:55:12ZThe social determinants of justice: 8 factors that increase your risk of imprisonment<p>You might have heard the phrase “social determinants of health”. It’s the idea that social factors – such as poverty, access to education, where you live and whether you face discrimination – have a huge influence on your <a href="https://www.who.int/health-topics/social-determinants-of-health">health and life expectancy</a>. </p>
<p>These determinants explain why worse health outcomes persist for some groups of people, despite incredible advances in medical care. This understanding has helped improve health policy in <a href="https://www.who.int/publications/i/item/9789240038387">Australia and overseas</a>.</p>
<p>We wanted to explore that idea in relation to incarceration. That is, to quantify what social factors increase a person’s chance of ending up in prison, and to use that to improve policy and reduce the harms and costs of incarceration. </p>
<p>Because while <a href="https://www.bocsar.nsw.gov.au/Pages/bocsar_publication/Pub_Summary/CCS-Annual/Criminal-Court-Statistics-Dec-2021.aspx">crime rates are decreasing</a> and governments have committed to <a href="https://www.justice.nsw.gov.au/Pages/Reforms/reducing-reoffending/reducing-reoffending.aspx">reducing reoffending</a>, the incarceration rates of certain groups of people remain shamefully high. These groups include <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/prisoners-australia/latest-release#aboriginal-and-torres-strait-islander-prisoners">Indigenous people</a>, those with <a href="https://disability.royalcommission.gov.au/news-and-media/media-releases/people-disability-over-represented-all-stages-criminal-justice-system">mental and cognitive disability</a>, and people experiencing <a href="https://www.aihw.gov.au/reports/alcohol/alcohol-tobacco-other-drugs-australia/contents/priority-populations/people-in-contact-with-the-criminal-justice-system">addiction</a> and <a href="https://www.aihw.gov.au/news-media/media-releases/2019/may-1/prisoners-more-likely-to-be-homeless-unemployed-an">homelessness</a>.</p>
<p>Our findings, published <a href="https://doi.org/10.5204/ijcjsd.2504">today</a>, reveal a criminal “justice” system that is far from just.</p>
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<p>
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<strong>
Read more:
<a href="https://theconversation.com/giving-ex-prisoners-public-housing-cuts-crime-and-re-incarceration-and-saves-money-180027">Giving ex-prisoners public housing cuts crime and re-incarceration – and saves money</a>
</strong>
</em>
</p>
<hr>
<h2>What we did</h2>
<p>We analysed studies of a data set containing information on 2,731 people who have been incarcerated in NSW. </p>
<p>The data comes from government agencies: NSW police, courts, corrections, and health and human services agencies such as housing and child protection. The data set is longitudinal. That means we can see the contact people had with services and institutions over time – from brushes with child protection services and police, to admissions to hospital and time spent in custody.</p>
<p>We identified eight factors as “social determinants of justice”. Our analysis showed that your chance of ending up in prison is greatly increased by:</p>
<ol>
<li>having been in out of home (foster) care</li>
<li>receiving a poor school education</li>
<li>being Indigenous</li>
<li>having early contact with police</li>
<li>having unsupported mental health and cognitive disability</li>
<li>problematic alcohol and other drug use</li>
<li>experiencing homelessness or unstable housing</li>
<li>coming from or living in a disadvantaged location</li>
</ol>
<p>And importantly, we found the more of these factors you experience, the more likely you are to be incarcerated and reincarcerated.</p>
<p>The people in our data set are often in custody on remand (not yet sentenced) and for minor offences, going in and out of the system on a criminal legal conveyor belt. This damages lives and doesn’t make our communities safer long term.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1647708570446872576"}"></div></p>
<h2>Why these factors?</h2>
<p>We know from decades of work on the social determinants of health that our health outcomes are greatly affected by our <a href="https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(17)32848-9/fulltext">social and economic context</a>.</p>
<p>People working in this area have developed the concept of the <a href="https://apps.who.int/iris/handle/10665/44489">social determinants of health <em>inequity</em></a>. Poor nutrition can contribute to chronic disease, but we’ve <a href="https://doi.org/10.2105%2FAJPH.2014.302200">learned</a> it doesn’t help to just <em>tell</em> people to eat healthier food because there are many barriers to being able to do that. Policy needs to focus on making nutritious food affordable and accessible to really make a difference.</p>
<p>For justice outcomes, there are also structural factors at play. For example, a person with cognitive disability who grew up in a middle class family with access to early support is very unlikely to go to prison, even if they are involved in offending. They have greater access to social advantages than, say, an Aboriginal person with cognitive disability from a remote town that has many police officers but <a href="https://doi.org/10.1177%2F1462474517696126">few social services</a>.</p>
<p>We can see from government data how many people end up in youth and adult detention after child protection, education, disability and health services <a href="https://www.mhdcd.unsw.edu.au/a-predictable-and-preventable-path-iamhdcd-report.html">fail them</a>. Activists and advocates from racialised and disadvantaged communities have been speaking up about this for many years.</p>
<p>All this highlights that we need broader system and policy changes to reduce the unacceptable social and economic costs of incarceration.</p>
<p>We have further developed the concept of the social determinants of justice to identify the “causes of the causes” of who goes to prison. These are:</p>
<ul>
<li><p>entrenchment of poverty and unequal access to resources in families and neighbourhoods</p></li>
<li><p>structural racism and discrimination, in particular experienced by Aboriginal and Torres Strait Islander communities and people with disability</p></li>
<li><p>failure to adequately respond to the abuse, violence and trauma experienced by so many children and young people</p></li>
<li><p>operation of the criminal legal system itself in the way that it is criminogenic; that is, it increases rather than reduces the likelihood of future incarceration. </p></li>
</ul>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520964/original/file-20230414-26-vx1p2h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/520964/original/file-20230414-26-vx1p2h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520964/original/file-20230414-26-vx1p2h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520964/original/file-20230414-26-vx1p2h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520964/original/file-20230414-26-vx1p2h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520964/original/file-20230414-26-vx1p2h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520964/original/file-20230414-26-vx1p2h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520964/original/file-20230414-26-vx1p2h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The social determinants of justice.</span>
<span class="attribution"><span class="source">McCausland & Baldry, 2023</span></span>
</figcaption>
</figure>
<p>The social determinants of justice show up in the <a href="http://dx.doi.org/10.4324/9781003028918-29">over-surveillance</a> of certain communities, lack of access to well-resourced <a href="https://www.lawcouncil.asn.au/files/web-pdf/Justice%20Project/Final%20Report/Justice%20Project%20_%20Final%20Report%20in%20full.pdf">legal representation</a>, not being granted <a href="https://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=atsia/sentencing/report/chapter7.pdf">diversionary options and bail</a>, and limited specialist <a href="https://www.crcnsw.org.au/wp-content/uploads/2021/11/CRC-AOD-Evaluation-final-report-1Dec21.pdf">services and support</a>. </p>
<h2>What now?</h2>
<p>To really make a difference to one of the most pressing policy challenges in Australia – the shamefully high rates of incarceration of Indigenous people and those with disability and mental health issues – we need to focus efforts and resources on addressing these social determinants.</p>
<p>To truly reduce the harms and costs of incarceration, we can’t just roll out behaviour-change programs in prisons. And we can’t just focus on what police are doing or what happens to people in court – though these are important. </p>
<p>As well as a major overhaul of the criminal legal system, we <em>also</em> have to make sure other government agencies and non-government organisations are being held accountable; that people are getting the services and support they need <em>before</em> they end up in prison. </p>
<p>The social determinants of justice could inform policy to ensure police are not the frontline service for people in crisis. </p>
<p>It could lead to changed government procurement processes that recognise the value of Aboriginal community-controlled organisations providing culturally led support. </p>
<p>It could guide a holistic case management model for people at risk of contact with the criminal legal system. It could be used in evaluating a diversion program to inform improvements. </p>
<p>It could inform a whole-of-government approach to enabling people to thrive in their communities instead of wasting lives and billions of dollars through incarceration.</p><img src="https://counter.theconversation.com/content/203661/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ruth McCausland receives funding from the Paul Ramsay Foundation and NHMRC and is affiliated with the Community Restorative Centre. </span></em></p><p class="fine-print"><em><span>Eileen Baldry receives funding from the Australian Research Council. She is affiliated with the Justice Reform Initiative. </span></em></p>We wanted to quantify what social factors increase a person’s chance of ending up in prison, and to use that to improve policy and reduce the harms and costs of incarceration.Ruth McCausland, Associate Professor, UNSW SydneyEileen Baldry, Deputy Vice Chancellor Equity Diversity and Inclusion, Professor of Criminology, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2000412023-03-02T13:23:59Z2023-03-02T13:23:59ZUnderstanding mass incarceration in the US is the first step to reducing a swollen prison population<figure><img src="https://images.theconversation.com/files/513014/original/file-20230301-30-1c9olo.jpg?ixlib=rb-1.1.0&rect=238%2C157%2C2573%2C1823&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People incarcerated at a county jail in North Dakota gather together. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/174524045/photo/oil-boom-shifts-the-landscape-of-rural-north-dakota.jpg?s=1024x1024&w=gi&k=20&c=FaIkb2CLNjUOxOoWX521IPpa5BfsgYTnAMVCQrDFXnI=">Andrew Burton/Getty Images</a></span></figcaption></figure><p><a href="https://www.pewresearch.org/fact-tank/2021/08/16/americas-incarceration-rate-lowest-since-1995/">The incarceration rate</a> in the United States fell in 2021 to its lowest levels since 1995 – but the U.S. continues to imprison a higher percentage of its population than almost every <a href="https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All">other country</a>. </p>
<p><a href="https://bjs.ojp.gov/library/publications/correctional-populations-united-states-2021-statistical-tables">The U.S. incarcerates</a> 530 people for every 100,000 in its population, making it one of the world’s biggest jailers – <a href="https://www.reuters.com/world/americas/el-salvador-begins-transfers-mega-prison-amid-gang-crackdown-2023-02-24/">just below El Salvador</a>, <a href="https://www.statista.com/statistics/262962/countries-with-the-most-prisoners-per-100-000-inhabitants/">Rwanda and Turkmenistan.</a> </p>
<p>The U.S. actually had the greatest percentage of its population imprisoned until 2019. This followed steady growth in prison and jail populations in the 1970s, after a wave of <a href="https://www.owu.edu/news-media/from-our-perspective/tough-questions-for-tough-on-crime-policies/">“tough on crime” laws</a> and policies swept the nation. </p>
<p>While there has been a <a href="https://newjimcrow.com/,">growing recognition</a> of the need to reduce <a href="https://joebiden.com/justice/#,%20https://obamawhitehouse.archives.gov/blog/2015/07/15/president-obama-our-criminal-justice-system-isnt-smart-it-should-be">mass incarceration</a>, experts <a href="https://newjimcrow.com/">do not</a> agree on <a href="https://www.city-journal.org/rafael-mangual-discusses-new-book-criminal-in-justice">what caused the ballooning prison population</a> or the best path to reducing it.</p>
<p>As a former prosecutor and a researcher who studies the <a href="https://scholar.google.com/citations?user=VxvW--wAAAAJ&hl=en">criminal justice system</a>, I have found that understanding how the U.S. incarceration rate grew over the <a href="https://www.amazon.com/Mass-Incarceration-Nation-Jeffrey-Bellin/dp/1009267558/ref=tmm_pap_swatch_0">last few decades</a> is the key to understanding its root causes – and what it will take to return to lower rates. </p>
<p>As I <a href="https://www.cambridge.org/us/academic/subjects/law/criminal-law/mass-incarceration-nation-how-united-states-became-addicted-prisons-and-jails-and-how-it-can-recover?format=PB&isbn=9781009267557">show in my new book</a>, “Mass Incarceration Nation, How the United States Became Addicted to Prisons and Jails and How It Can Recover,” people tend to talk past one another when they discuss crime and punishment in the U.S. I think the public debate can improve if people develop a better understanding of how mass incarceration arose – and its tenuous connection to crime. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/513012/original/file-20230301-2409-xqwaw8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person wearing a bright orange outfit is seen walking into gates towards a beige building." src="https://images.theconversation.com/files/513012/original/file-20230301-2409-xqwaw8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/513012/original/file-20230301-2409-xqwaw8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/513012/original/file-20230301-2409-xqwaw8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/513012/original/file-20230301-2409-xqwaw8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/513012/original/file-20230301-2409-xqwaw8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/513012/original/file-20230301-2409-xqwaw8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/513012/original/file-20230301-2409-xqwaw8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">While the U.S. prison population has dipped recently, the rate remains higher than those of most countries.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/539898510/photo/usa-crime-overcrowding-of-california-prison-system.jpg?s=1024x1024&w=gi&k=20&c=iXtRdZscYW5liMp5Li6ez7mWwHU94JASFEYl2rO7Lus=">Ted Soqui/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<h2>A growing prison population</h2>
<p>The growth in mass incarceration began with a crime spike. Homicides, which averaged around <a href="https://www.cdc.gov/nchs/data/series/sr_20/sr20_006acc.pdf">5,000 per year in the 1960s</a>, <a href="https://www.statista.com/statistics/187592/death-rate-from-homicide-in-the-us-since-1950/">shot up in the 1970s,</a> reaching over 24,000 in 1991. </p>
<p>The crime spike sparked a bipartisan wave of punitive laws, the hiring of <a href="https://www.nytimes.com/1990/10/03/nyregion/dinkins-on-crime-dinkins-proposes-record-expansion-of-police-forces.html">thousands of police officers</a> and a <a href="https://daily.jstor.org/rethinking-prison-as-a-deterrent-to-future-crime/">“tough on crime” mindset</a> that permeated every aspect of American criminal law. The system became more punitive, generating longer sentences, especially for repeat and violent offenses, as I show in my book. </p>
<p>Over time, this led to today’s <a href="https://nicic.gov/projects/aging-prison">aging prison population</a> and many people being held long past the time they would have been released in other countries and at other times <a href="https://www.pewtrusts.org/en/research-and-analysis/articles/2018/02/20/aging-prison-populations-drive-up-costs">in this country’s history</a>. </p>
<p>The number of people 55 or older in state and federal prisons increased 280% from 1999 to 2016, <a href="https://www.pewtrusts.org/en/research-and-analysis/articles/2018/02/20/aging-prison-populations-drive-up-costs">according to Pew research.</a> </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/512999/original/file-20230301-1944-k5hl1c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Men in bright orange outfits and face masks sit in what looks like an empty classroom with white bars on the windows." src="https://images.theconversation.com/files/512999/original/file-20230301-1944-k5hl1c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/512999/original/file-20230301-1944-k5hl1c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/512999/original/file-20230301-1944-k5hl1c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/512999/original/file-20230301-1944-k5hl1c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/512999/original/file-20230301-1944-k5hl1c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/512999/original/file-20230301-1944-k5hl1c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/512999/original/file-20230301-1944-k5hl1c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Men incarcerated in Washington, D.C., participate in a computer science program in September 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1243186427/photo/students-from-the-brave-behind-bars-program-an-introductory-computer-science-program-for.jpg?s=1024x1024&w=gi&k=20&c=lVKEnRJ9FBQ5GZSwwxMcHCV3HaKvXpvDudkR9vMMDWw=">Carolyn Van Houten/The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Different kinds of crime</h2>
<p>But longer sentences are only one factor in America’s supersized incarceration rates. </p>
<p>There has also been a <a href="https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2022/02/drug-arrests-stayed-high-even-as-imprisonment-fell-from-2009-to-2019">dramatic expansion of the kinds of crimes</a> for which U.S. courts imprison people. </p>
<p>After the 1970s, more and more people went to prison for drug crimes and other offenses that rarely used to lead to prison time. </p>
<p>Serious violent crime, meanwhile, went <a href="https://pricetheory.uchicago.edu/levitt/Papers/LevittUnderstandingWhyCrime2004.pdf">back down in the 1990s</a>. The crimes – like armed robbery and murder – that had sparked the march toward mass incarceration plummeted. </p>
<p>But prison populations didn’t drop. </p>
<p>As a prosecutor in Washington, D.C. in the early 2000s, I saw this change firsthand. Our caseloads were increasingly dominated by drug sales, drug possession and gun possession cases – cases which, not coincidentally, are typically the easiest to detect and prove. These changes were happening on a national level.</p>
<p><iframe id="A7bZk" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/A7bZk/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>The number of people incarcerated in state prisons for homicide increased by over 300% between 1980 and 2010, reflecting the temporary spike in homicides and longer sentences for those convicted of that offense. </p>
<p>But the scale of the increases for other offenses, like drug crimes, is even larger – rising 1,147% over this time frame.</p>
<h2>Speaking the same language</h2>
<p>While prison populations are finally starting to go down, progress is slow. At the current rate, it will take decades to reach the low incarceration rates the U.S. had for most of its history. </p>
<p>This dip is partially <a href="https://bjs.ojp.gov/library/publications/impact-covid-19-state-and-federal-prisons-march-2020-february-2021">because of the COVID-19 pandemic</a>, which prompted some states to release prisoners to avoid overcrowding and health risks. It is not clear that these recent reductions in the incarcerated population will continue. </p>
<p>I think that substantially reducing prison and jail populations will require better understanding of the link between incarceration and crime. It is not simply the case that incarceration goes up because people commit crime; instead, the story is much more complicated. That is because we use incarceration for two purposes: to obtain justice on behalf of victims and to try to change people’s behavior. </p>
<p>This distinction results in two kinds of cases flowing into this nation’s criminal courts.</p>
<p>First, there are cases that involve the most serious harm to individuals, like crimes of sexual violence and murder. Second, there are cases like drug offenses and weapons possession, which are not typically about obtaining justice for victims but are supposed to further policy goals like preventing drug use.</p>
<p>Changes in how we treat both kinds of cases contributed to the nation’s sky-high incarceration rate. American mass incarceration is a result of <a href="https://www.pewresearch.org/fact-tank/2021/12/06/u-s-public-divided-over-whether-people-convicted-of-crimes-spend-too-much-or-too-little-time-in-prison/">increasing sentence lengths</a> for people who commit serious violent crimes. But it is also a product of a stunning expansion of the system’s reach in the form of more and more crimes leading to prison and jail. </p>
<p>Substantial progress at reducing the incarcerated population will require reversing both trends. First, returning sentence lengths for all offenses, including serious violent crime, to their historical norms. And second, resisting this country’s growing habit of relying on incarceration as a tool for achieving policy goals.</p><img src="https://counter.theconversation.com/content/200041/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Bellin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Experts still disagree about why the US prison population has grown so much over the last few decades. But crime is only one part of the problem.Jeffrey Bellin, Mills E. Godwin, Jr., Professor of Law, William & Mary Law SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1982772023-02-07T13:34:35Z2023-02-07T13:34:35ZMexico made criminal justice reforms in 2008 – they haven’t done much to reduce crime<figure><img src="https://images.theconversation.com/files/508503/original/file-20230206-19-85s1yi.jpg?ixlib=rb-1.1.0&rect=134%2C206%2C5838%2C3763&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Mexican soldiers stand guard near during the arrest of Joaquin Ovidio Guzman in Culiacan, Mexico, in January 2023.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1246022600/photo/topshot-mexico-drugs-violence-guzman-arrest.jpg?s=1024x1024&w=gi&k=20&c=VuwfDMIAXP0eeKfKdmH1zgboCcJwmwCKFNXWDaNdbvU=">Juan Carlos Cruz/AFP via Getty Images</a></span></figcaption></figure><p><a href="https://theconversation.com/mexico-hizo-reformas-al-sistema-de-justicia-penal-en-2008-aunque-no-han-hecho-mucho-para-reducir-la-delincuencia-201657">Leer en español.</a></p>
<p>Mexico has waged a long, bloody battle on drugs and crime for decades. But violence there <a href="https://www.asisonline.org/security-management-magazine/latest-news/today-in-security/2022/september/Extreme-Violence-in-Mexico-Continues-to-Increase/">continues to soar</a>.</p>
<p>In one of the latest high-profile incidents, Mexican law enforcement arrested <a href="https://www.bbc.com/news/world-latin-america-64179356">Ovidio Guzmán-López</a>, a leader of the powerful Sinaloa drug cartel and the son of imprisoned drug lord Joaquín “El Chapo” Guzmán, in early January 2023. The arrest <a href="https://www.reuters.com/world/americas/we-threw-ourselves-floor-mexican-passenger-plane-caught-cartel-crossfire-2023-01-06/">sparked a wave</a> of violence in Culiacan in northwest Mexico, resulting in looting, shootouts and <a href="https://www.theguardian.com/world/2023/jan/06/terror-cartel-violence-engulfs-mexican-city-el-chapo-son">29 people killed</a>.</p>
<p>The ongoing violence in parts of Mexico is largely associated with drug trafficking organizations like Sinaloa, street gangs and <a href="https://www.scielo.cl/scielo.php?pid=S0719-37692015000200006&script=sci_arttext">self-defense forces</a> regular citizens have formed to protect themselves from crime because of ineffective police and military deterrents. </p>
<p>I am <a href="https://sc.edu/uofsc/posts/2022/04/breakthrough_star_rebecca_janzen.php">a scholar of Mexican</a> culture and literature. <a href="https://www.vanderbiltuniversitypress.com/9780826504449/unlawful-violence/">I have written about</a> how the Mexican government <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/judicial-reform-mexico-toward-new-criminal-justice-system">has attempted to</a> reduce violent crime through changes to criminal justice and human rights law. </p>
<p>But these attempts have largely failed, allowing the cycle of violence to escalate. </p>
<p>Here are four key points to understand. </p>
<h2>1. Violence in Mexico continues to rise</h2>
<p>An <a href="https://www.economist.com/the-americas/2022/09/01/several-violent-episodes-in-mexico-suggest-a-worrying-trend">average of 25</a> people disappear every day in Mexico. The <a href="https://data.worldbank.org/indicator/VC.IHR.PSRC.P5?locations=MX">murder rate</a> stands at 28 per 100,000 people – four times the rate in the United States. </p>
<p>The <a href="https://data.worldbank.org/indicator/VC.IHR.PSRC.P5?locations=MX">violence rate in Mexico shot</a> up starting in 2007, with the worst years in 2011 and <a href="https://www.macrotrends.net/countries/MEX/mexico/crime-rate-statistics">again</a> from 2018 to the present. </p>
<p>Violent crime <a href="https://www.globalguardian.com/newsroom/risk-map-mexico">varies significantly</a> across the country. </p>
<p>The people most at risk of violence are in the central and southwestern parts of the country, as well as in the northern states of Chihuahua, Sinaloa, <a href="https://www.scielo.cl/scielo.php?pid=S0719-37692015000200006&script=sci_arttext">Baja California Norte and Tamaulipas</a>. </p>
<p>In the western states of Michoacán and Guerrero, violent crime – including kidnappings, murders and disappearances – occur mostly between <a href="https://mexiconewsdaily.com/news/new-self-defense-forces-surface-in-guerrero/">citizens’ self-defense</a> and drug-trafficking groups. In the northern states, bordering the U.S., the violence is dominated by fighting between drug cartels and street gangs.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Many small metal bullet casings are seen scattered on a beige ceramic tile floor outside." src="https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=372&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=372&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=372&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=467&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=467&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507960/original/file-20230202-14692-3d58yn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=467&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Bullet casings outside the Mexican home of drug trafficker Ovidio Guzmán-López, whom police arrested in January 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1246073900/photo/mexico-drugs-violence-guzman-arrest.jpg?s=1024x1024&w=gi&k=20&c=BCo4jL_w0j13ebbvBvACoLgyhF6E-daIAVuQbcRDdBA=">Juan Carlos Cruz/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>2. Military used to fight war on drugs</h2>
<p>Mexican federal authorities have associated rising violence with drug trafficking since the beginning of the 20th century – dating back to 1917, when the <a href="https://www2.juridicas.unam.mx/constitucion-reordenada-consolidada/en/vigente">Mexican Constitution</a> prohibited drugs, with the goal of preventing violence. </p>
<p>And, so, when Mexico’s former President Felipe Calderón <a href="https://www.npr.org/2011/12/09/143429367/5-years-later-calderons-war-on-cartels">first declared a formal war </a> on drugs in 2006, his decision had a long history. </p>
<p>The U.S. government supported this war with a <a href="https://mx.usembassy.gov/the-merida-initiative/">US$3.4 billion</a> military agreement, <a href="https://www.brookings.edu/articles/us-mexico-security-collaboration-wont-be-easily-resurrected/">called the Merida Initiative</a>, that began in 2007 and lapsed in 2021. </p>
<p>The plan’s tactics – including the Mexican military’s targeting and killing of drug cartel leaders – did not quell the <a href="https://www.jstor.org/stable/resrep11780">rising violence</a>, which continued to spread and intensify <a href="https://www.macrotrends.net/countries/MEX/mexico/crime-rate-statistics">over the past 16 years</a>. </p>
<p>Mexico has tried to address this rise in drug cartel activity and crime with different measures, including sending <a href="https://law.yale.edu/yls-today/news/militarization-mexico-costs-lives-and-constitutional-legitimacy-panel-says">128,000 Mexican soldiers</a> to fight drug cartels and other criminal groups in Mexico’s streets – a violation of Mexico’s original Constitution that prohibited the use of military for police work within the country. In October 2022, Mexico approved a constitutional reform that allows the military to carry out domestic law enforcement <a href="https://constitutionnet.org/news/mexico-constitutional-reform-allowing-military-perform-police-work-passes-pending-majority">through 2028</a>.</p>
<h2>3. Corruption complicates crime reduction</h2>
<p>The Mexican government also passed a number of new laws over the past decade to address crime. </p>
<p>One main problem with implementing these laws effectively is <a href="https://www.transparency.org/en/cpi/2021">widespread corruption</a> across the government, military and <a href="https://doi.org/10.1080/09592310903561544">justice system</a>. The Mexican military, for example, is tasked with fighting cartels – but <a href="https://www.npr.org/2022/10/14/1129001666/data-leak-exposes-mexico-military-corruption-including-collusion-with-drug-carte">soldiers have also</a> been known to sell weapons to them.</p>
<p>In 2008, the Mexican Congress approved a series of constitutional reforms affecting the <a href="https://www.ojp.gov/ncjrs/virtual-library/abstracts/judicial-reform-mexico-toward-new-criminal-justice-system">criminal justice system</a> – these reforms addressed the reality that <a href="https://biblioteca.cejamericas.org/bitstream/handle/2015/5143/mex-detenciones-arbitrarias.pdf?sequence=1&isAllowed=y">people often are arrested</a> and convicted for crimes they did not commit. This is partially because Mexico’s old legal system <a href="https://www.economist.com/the-americas/2016/06/18/trials-and-errors">presumed all people</a> put on trial were guilty until proved innocent – the reforms switched this norm to the U.S. model, so people are now considered innocent until proved guilty.</p>
<p>Over 90% murders in Mexico <a href="https://insightcrime.org/news/analysis/solving-mexico-homicide-backlog-could-take-124-years/">from 2010 to 2016</a>, meanwhile, remain unsolved. </p>
<p>The changes to the criminal justice system aim to address these issues and make several important changes. These reforms include making trials – which were typically documented only in writing – oral, making it easier for people to track court cases and <a href="https://worldjusticeproject.mx/la-nueva-justicia-penal-en-mexico/">leading to a rise</a> in public monitoring of court proceedings. </p>
<p>The changes also mandated that <a href="https://justiceinmexico.org/judicial-reform-in-mexico-toward-a-new-criminal-justice-system/">three independent judges</a> serve on all trials, to avoid the risk of a single <a href="https://www.reuters.com/article/us-mexico-politics-crime/mexico-to-go-after-all-narco-judges-official-idUSKCN1SQ2H6">judge aligned with drug cartels</a> presiding over a decision. </p>
<p>The changes were fully implemented across all 31 states of Mexico in 2016. But these <a href="https://www.wola.org/wp-content/uploads/2019/11/WEB-JUSTICE-REFORMS-REPORT-ENG.pdf">reforms have not</a> reduced violence in Mexico. They only scratch the surface and do not address the structural issues – like misogyny and racism – at the root of violence against particularly vulnerable people, <a href="https://theconversation.com/mexicos-other-epidemic-murdered-women-132307">like women</a> and <a href="https://www.washingtonpost.com/opinions/2021/08/31/tapachula-crisis-chiapas-mexico-migrants-racism-violence/">Indigenous people</a>. </p>
<p><a href="https://doi.org/10.1080/01924036.2021.1998917">Most Mexican people</a> also do not trust their police or criminal justice system. </p>
<p><a href="https://www.mexicoviolence.org/essential-numbers#">University of California’s San Diego’s Center for U.S.-Mexican Studies estimates</a> that 93.3% of crimes are not reported. Out of the small number of reported cases, arrests are made in only 11.5%. </p>
<p>Women, notoriously, <a href="https://drive.google.com/file/d/1yVfgnItDgQC88zr2fnHW4lE8MwmzuPi0/view">are not</a> acknowledged when they report that they <a href="https://apnews.com/article/mexico-caribbean-gender-6594c9b2c9ea39a52dc3204e16be704c">are victims of crime</a>, or they are reported missing by loved ones. And <a href="https://www.reuters.com/world/americas/mexico-lack-resources-aggravates-impunity-gender-crimes-group-2022-12-02/">violent crimes</a> against women are solved at even lower rates than other crimes. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A soldier wearing camouflage and carrying a gun stands in front of a charred car on a sunny day." src="https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507962/original/file-20230202-12962-fzxm26.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Mexican soldier stands guard outside a crime scene in Zacatecas state, Mexico, in March 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1239480084/photo/mexico-crime-drugs-zacatecas.jpg?s=1024x1024&w=gi&k=20&c=QIgWwOpyu1WAXV3Gg_Glcrgk1cfGDkZlrbxj1J6DlRQ=">Pedro Pardo/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>4. The laws don’t tackle core problems</h2>
<p>In my opinion, criminal justice reforms alone cannot reduce crime in Mexico. </p>
<p>The percentage of Mexican <a href="https://www.nytimes.com/2022/07/18/world/americas/mexico-economy-poverty.html">people living in</a> poverty <a href="https://www.bbvaresearch.com/en/publicaciones/mexico-38-million-more-poor-and-21-million-more-in-extreme-poverty-between-2018-2020/">continued to grow</a> from 2018 and 2020, increasing by 7.3% during these years. </p>
<p>Inequality between <a href="https://wir2022.wid.world">Mexico’s richest and poorest</a> people also remains on the rise, making it one of the most unequal countries in the world. <a href="https://www.tandfonline.com/doi/full/10.1080/00220388.2021.1971649">Some research</a> shows that strengthening educational systems in Mexico – <a href="https://openknowledge.worldbank.org/bitstream/handle/10986/18825/WPS6935.pdf?sequence=1&isAllowed=y">and reducing inequality</a> – could help curb crime.</p>
<p>These factors – in addition to <a href="https://www.cnbc.com/2021/06/17/the-us-has-spent-over-a-trillion-dollars-fighting-war-on-drugs.html">illicit drug usage</a> in the U.S. and demand for drugs transported through Mexico – all form a complicated web that will need to be untangled, and systematically addressed, before criminal justice reforms alone can help make Mexico a safer and more just country.</p><img src="https://counter.theconversation.com/content/198277/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Janzen received funding from the University of South Carolina's College of Arts and Sciences to conduct research for this work. </span></em></p>Mexico’s crime epidemic continues to worsen, as poverty and inequality also grow in the country.Rebecca Janzen, Associate Professor of Spanish and Comparative Literature, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1989482023-02-01T13:19:00Z2023-02-01T13:19:00ZAs charges loom over Trump, prosecutors come under fire – a criminal justice expert explains what’s at stake<figure><img src="https://images.theconversation.com/files/507421/original/file-20230131-16-u8j249.jpg?ixlib=rb-1.1.0&rect=73%2C18%2C882%2C748&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fani Willis, the district attorney of Fulton County, Georgia, has said that a decision about charging Trump is imminent. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1246123244/photo/fulton-county-ga-district-attorney-fani-willis.jpg?s=1024x1024&w=gi&k=20&c=4NcZS0Nr16_KGRFpZWH3YpqvT9pLLW3Q2bhxh_6hDpA=">David Walter Banks/Getty Images</a></span></figcaption></figure><p><em>Former President Donald Trump held his <a href="https://www.pbs.org/newshour/politics/trump-launches-2024-run-with-visits-to-new-hampshire-south-carolina">first presidential campaign</a> events on Jan. 28, 2023, against the heavy backdrop of <a href="https://www.vox.com/policy-and-politics/23306941/donald-trump-crimes-criminal-investigation-mar-a-lago-fbi-january-6-election-georgia-new-york">four major criminal investigations</a> into his behavior while in and out of office.</em></p>
<p><em><a href="https://news.yahoo.com/donald-trump-plans-campaign-stops-154435769.html">In the lead-up</a> to his campaign launch, Trump personally attacked prosecutors <a href="https://www.politico.com/news/2022/11/18/trump-special-prosecutor-00069498">and the investigations</a> they are leading as <a href="https://www.politico.com/news/2022/11/18/trump-special-prosecutor-00069498">politically biased</a> and a “hoax.”</em></p>
<p><em>“These prosecutors are vicious, horrible people, they’re racists and they’re very sick, they’re mentally sick. They’re going after me without any protection of my rights by the Supreme Court, or most other courts,” Trump said <a href="https://www.vanityfair.com/news/2022/01/donald-trump-letitia-james-alvin-bragg-fani-willis-outburst">in January 2022</a>of New York Attorney General Letitia James and Manhattan District Attorney Alvin Bragg, both of whom are Black. Bragg is <a href="https://www.nytimes.com/2023/01/30/nyregion/trump-stormy-daniels-grand-jury.html">reportedly approaching</a> a decision about whether to charge Trump with illegally paying money to silence porn actress Stormy Daniels about their relationship.</em></p>
<p><em>Trump <a href="https://www.nytimes.com/2023/01/31/us/politics/trump-legal-tactics.html">has also called</a> other Black prosecutors investigating him – including Fani Willis, the Fulton County district attorney <a href="https://www.washingtonpost.com/politics/2023/01/30/fulton-county-trump-potential-crimes/">leading an inquiry</a> into his interference with the 2020 election results in Georgia – “racist.” Willis <a href="https://www.wsbtv.com/news/local/fulton-county/fulton-da-extreme-security-required-me-stay-alive-after-threats/HCJDGFFMGNHWDERC76ND3QAG6Y/">has said that</a> she requires extensive personal security following death threats from Trump supporters.</em></p>
<p><em>This public castigation is helping elevate prosecutors, who typically hold fairly low profiles, into the national spotlight.</em></p>
<p><em>The Conversation spoke with <a href="https://jessicahenryjustice.com/">Jessica S. Henry</a>, a criminal justice expert at Montclair State University, to help navigate the role of prosecutors and the potential risks of making their positions fair game on the presidential election circuit.</em></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507424/original/file-20230131-15237-m1lc10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Five people, all in suits, stand in a row. One person in the center, a Black middle aged man, stands at a podium." src="https://images.theconversation.com/files/507424/original/file-20230131-15237-m1lc10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507424/original/file-20230131-15237-m1lc10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507424/original/file-20230131-15237-m1lc10.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507424/original/file-20230131-15237-m1lc10.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507424/original/file-20230131-15237-m1lc10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507424/original/file-20230131-15237-m1lc10.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507424/original/file-20230131-15237-m1lc10.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Manhattan District Attorney Alvin Bragg speaks at a news conference in January 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1456196841/photo/trump-organization-sentenced-in-criminal-tax-fraud-case.jpg?s=1024x1024&w=gi&k=20&c=7I4r_9K8uFNtG6bAroz9Zp-atrO9H6HbvIhn4O6KdbU=">Michael M. Santiago/Getty Images</a></span>
</figcaption>
</figure>
<p><strong>What role do prosecutors serve in the justice system in the US?</strong></p>
<p>Prosecutors are among the most powerful figures in the courthouse. They are the people who decide whether to bring charges, what charges to bring, whether to negotiate a plea bargain and what those terms would be. <a href="https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/">Very few criminal cases</a> ever go to trial. And so prosecutors wield tremendous power. </p>
<p><strong>Are these posts typically considered political?</strong></p>
<p>Electoral politics have always been part of the backdrop of prosecution. <a href="https://www.law.cornell.edu/wex/district_attorney_(da)">District attorneys</a> – the top prosecutors in a state – <a href="https://law.unc.edu/wp-content/uploads/2020/01/National-Study-Prosecutor-Elections-2020.pdf">are elected</a> in 45 states. And in contested elections, the rhetoric is typically about who is the toughest on crime. Prosecutors who can prove that they’re the toughest<a href="https://www.vox.com/2015/5/27/8661045/prosecutors-mass-incarceration"> typically win</a>. Tough, in these terms, is defined as getting convictions and securing long sentences. </p>
<p>There are examples of prosecutors who used their official position to try to augment their standing in an election. <a href="https://www.washingtonpost.com/news/true-crime/wp/2016/08/30/disbarred-duke-lacrosse-prosecutor-mike-nifong-is-back-along-with-more-misconduct-allegations/">Mike Nifong, for example</a>, was the district attorney in Durham, North Carolina, in 2006, and he was also up for election in a community with a large Black population. Chrystal Magnum, a Black woman, claimed that she had been raped by white lacrosse players at Duke University. <a href="https://www.vanityfair.com/news/2016/03/duke-lacrosse-case-fantastic-lies-documentary">Nifong pursued rape charges against</a> these students. <a href="https://www.ncbar.gov/orders/06dhc35.pdf">But Nifong lied</a> to the media, to the defense and to the courts – and ultimately, the charges against the Duke lacrosse players were dropped. And in a very rare occurrence of accountability for prosecutors who engage in misconduct, <a href="https://www.nytimes.com/2007/06/16/us/16cnd-nifong.html">Nifong was disbarred</a>. </p>
<p><strong>How have prosecutors become more political in the last few years?</strong></p>
<p>In 2016, about 70% of all prosecutors up for <a href="https://doi.org/10.1525/9780520971943-007">election ran unopposed</a>. In 2022, <a href="https://centerforpolitics.org/crystalball/articles/the-attorneys-general-a-dozen-races-dot-the-competitive-landscape/">about 12 of the 30</a> district attorney election races were considered competitive. So, these are not often contested positions.</p>
<p>And yet, there has been a shift recently, in which people who think that criminal justice can be done differently and done better, choose to run for the head district attorney position. And those with a more reform-oriented agenda – <a href="https://theconversation.com/crime-is-on-the-ballot-and-voters-are-choosing-whether-prosecutors-with-reform-agendas-are-the-ones-who-can-best-bring-law-order-and-justice-192917">often called progressive prosecutors</a> – have been getting elected around the country. This has brought some really important changes involving who is prosecuted and for what – and also more political opposition from those who want to maintain the status quo. </p>
<p><strong>How does this change the way prosecutors go about their work?</strong></p>
<p>Prosecutors are supposed to be ministers of justice, immune from outside influence, but they’re also people with biases and vulnerabilities. So, when they’ve got high-profile figures like <a href="https://www.independent.co.uk/news/world/americas/us-politics/trump-special-counsel-attack-truth-social-b2261046.html">Trump screaming their names</a> out in the national media, it has to increase the pressure on them and how they use their discretion and power. When a case plays out on the national stage, prosecutors may wind up paying attention not only to the specific facts of the case being featured in the spotlight, but also how it is being perceived by their constituents and portrayed by the national and local media.</p>
<p>It can sometimes be deeply problematic when people outside the prosecutor’s office try to dictate prosecutorial decision-making for political gain. In Texas, for instance, lawmakers <a href="https://thetexan.news/bills-filed-to-rein-in-rogue-district-attorneys-in-texas-legislature/">have proposed a bill</a> that targets prosecutors who refuse to prosecute people who have abortions or parents who seek transgender-affirming medical care for their children. That puts a lot of pressure on prosecutors who are trying to do what they believe is right under the law.</p>
<p>On the flip side, prosecutors are supposed to represent “the people.” So it can be important that the community make its perspective known, such as in the case of police shootings <a href="https://www.nytimes.com/2023/01/29/us/tyre-nichols-video-assault-cops.html">of unarmed people</a>, and the public’s desire for accountability by having prosecutors criminally charge officers for their actions. </p>
<p>In states where prosecutors are elected, they are subject to the same <a href="https://www.cnbc.com/2022/07/25/georgia-prosecutor-fani-willis-barred-from-investigating-trump-fake-elector.html">electoral politics</a> as any other elected official. It would be naive to say that prosecutors are completely immune from that external pressure. Of course, we’d like to think that prosecutors, in their commitment to justice, only prosecute cases that are justified and only when there’s enough evidence. But that doesn’t always happen, and sometimes those decisions wind up reflecting local politics rather than the evidence in a particular case. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507428/original/file-20230131-7915-qbidw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large group of people are seen in an audience in a dark room, looking towards a white, older man in a suit speaking at a podium, with other men and American flags behind him." src="https://images.theconversation.com/files/507428/original/file-20230131-7915-qbidw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507428/original/file-20230131-7915-qbidw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507428/original/file-20230131-7915-qbidw2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507428/original/file-20230131-7915-qbidw2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507428/original/file-20230131-7915-qbidw2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507428/original/file-20230131-7915-qbidw2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507428/original/file-20230131-7915-qbidw2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Former President Donald Trump speaks at a 2024 election campaign event in South Carolina on Jan. 28, 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1246628245/photo/us-politics-trump.jpg?s=1024x1024&w=gi&k=20&c=mgG4GaU7H19iQfiNRbKrdaFl9y1NKTKGwnkmcjo7ns0=">Logan Cyrus/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p><strong>Do you see that as a risk, potentially, for prosecutors right now?</strong></p>
<p>I don’t know whether we’re going to see attacks on prosecutors as part of a larger trend in national elections. But every time Trump goes after one of these institutional players, like a prosecutor or <a href="https://www.brennancenter.org/our-work/research-reports/his-own-words-presidents-attacks-courts">even a judge</a>, what he’s really doing is destabilizing the public’s ability to trust government institutions. </p>
<p>There is research that shows that the <a href="https://judicature.duke.edu/articles/losing-faith-why-public-trust-in-the-judiciary-matters/">criminal legal system</a> is only as robust and legitimate as the public perceives it to be. While there are many flaws in the criminal system, I believe that personal attacks on prosecutors who pursue criminal charges against Trump ultimately harm our democracy.</p><img src="https://counter.theconversation.com/content/198948/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessica S. Henry does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Most prosecutors are elected in uncontested races across the country. But there are signs that the posts are becoming political hotbeds, placing more pressure on the criminal justice system.Jessica S. Henry, Professor, Department of Justice Studies, Montclair State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1930672022-11-22T19:28:49Z2022-11-22T19:28:49ZThe criminal justice system is retraumatizing victims of violent crime<figure><img src="https://images.theconversation.com/files/495724/original/file-20221116-20-fgcmwk.jpg?ixlib=rb-1.1.0&rect=61%2C24%2C8118%2C5432&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Support for victims must include forms of restorative justice that allows them to have their voices heard.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>In a split moment, violence can change our lives. We could become a target of violence in our home, school, workplace and community. You might be slapped, punched, stabbed or shot, resulting in serious injuries, trauma or even death. </p>
<p>When someone is victimized, adequate support services should be available to <a href="https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1127&context=sclr">help victims and ensure their rights</a> but, unfortunately, they rarely are in the Canadian criminal justice system. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/495723/original/file-20221116-20-fy4yb0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A bald man wearing a suit and glasses speaking in parliament." src="https://images.theconversation.com/files/495723/original/file-20221116-20-fy4yb0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/495723/original/file-20221116-20-fy4yb0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=692&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495723/original/file-20221116-20-fy4yb0.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=692&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495723/original/file-20221116-20-fy4yb0.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=692&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495723/original/file-20221116-20-fy4yb0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=870&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495723/original/file-20221116-20-fy4yb0.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=870&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495723/original/file-20221116-20-fy4yb0.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=870&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Minister of Justice David Lametti announced the appointment of a Federal Ombudsman for Victims of Crime in late September 2022.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Adrian Wyld</span></span>
</figcaption>
</figure>
<p>After several months of <a href="https://www.thestar.com/politics/federal/2022/01/17/ottawa-accused-of-failing-crime-victims-by-leaving-watchdog-job-empty.html">public criticism</a>, the federal government recently appointed a new <a href="https://www.canada.ca/en/department-justice/news/2022/09/minister-of-justice-announces-new-federal-ombudsperson-for-victims-of-crime.html">Federal Ombudsman for Victims of Crime</a> in September. The new ombudsman will continue the work of making recommendations about systemic and emerging issues in the federal system based on concerns raised by victims.</p>
<p>The House of Commons standing committee on justice and human rights is currently studying the <a href="https://www.ourcommons.ca/Committees/en/JUST/StudyActivity?studyActivityId=11552971">government’s obligations to victims</a>. The study is generating an important debate on existing policies, programs and legislation that could better align the justice system with the needs of victims. </p>
<h2>Victims retraumatized</h2>
<p>In the aftermath of violence, victims typically feel <a href="https://www.utpjournals.press/doi/abs/10.3138/cjccj.51.4.473?journalCode=cjccj">pain, shock, fear, grief and anger</a> as a result of its physical, psychological, spiritual and financial impacts.</p>
<p>The 2019 criminal victimization survey from Statistics Canada found that <a href="https://www150.statcan.gc.ca/n1/pub/85-002-x/2021001/article/00014-eng.htm">2.6 million people</a> over the age of 15 were victims of a violent incident including sexual assault, physical assault and robbery. </p>
<p>In addition, there is a <a href="https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00013-eng.htm">disproportionate impact of violent victimization</a> on Black and Indigenous people, young women, sexual minorities and people with disabilities. With many intersecting identities, marginalized people face a higher risk of violence because of racism, sexism, homophobia and ableism.</p>
<p>However, only about <a href="https://www150.statcan.gc.ca/n1/pub/85-002-x/2021001/article/00014-eng.htm">a quarter of victims of violence reported the incidents</a> to police because most had little confidence they’d be taken seriously and feared being re-traumatized by the legal process.</p>
<p>The criminal justice system is ineffective at addressing the harm done to victims because it centres around punishing the accused perpetrators of violence. The system does not adequately support the victim’s healing. Instead, it uses them to punish people the Crown believes can be found guilty. </p>
<p>In 2018, the Department of Justice completed a review of Canada’s criminal justice system and found that <a href="https://www.justice.gc.ca/eng/cj-jp/tcjs-tsjp/fr-rf/docs/fr.pdf">victims are disillusioned</a> and feel re-victimized by the current approach. These findings align with many <a href="https://www.womenatthecentre.com/initiatives/declarations-of-truth/#:%7E:text=Declarations%20of%20Truth%20is%20a,justice%20for%20sexual%20violence%20survivors.">declarations from victims of sexual violence</a> about their experiences with the legal system where they are blamed and shamed for the harm done, have little agency in the court proceedings and receive limited access to counselling and compensation. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/495725/original/file-20221116-25-s4cnhe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two women sit on a couch. One is comforting the other." src="https://images.theconversation.com/files/495725/original/file-20221116-25-s4cnhe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/495725/original/file-20221116-25-s4cnhe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495725/original/file-20221116-25-s4cnhe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495725/original/file-20221116-25-s4cnhe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495725/original/file-20221116-25-s4cnhe.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495725/original/file-20221116-25-s4cnhe.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495725/original/file-20221116-25-s4cnhe.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The justice system does not adequately support the victim’s healing because it centres around punishing the accused perpetrators of violence.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<h2>Retributive justice not the answer</h2>
<p>Increased policing and prisons are <a href="https://www.haymarketbooks.org/books/1664-we-do-this-til-we-free-us">not a solution</a> to these issues because they can lead to further violence and exclusion for the most vulnerable people in society. If an accused person is found guilty of a violent offence, they will <a href="https://nationalmagazine.ca/en-ca/articles/law/in-depth/2019/canada-s-prisons-are-failing">likely be sentenced to prison</a> where they often become angrier, more violent and excluded, putting more people in harm’s way. </p>
<p>Complex social and economic inequalities also play a role <a href="https://global.oup.com/ushe/product/the-roots-of-danger-9780190215231?cc=ca&lang=en&">in violence</a>. But conditions of racism and poverty continue to be ignored by the state. </p>
<p>Instead, the default responses continue to be <a href="https://www.ourcommons.ca/Content/Committee/432/SECU/Reports/RP11434998/securp06/securp06-e.pdf">hyper policing</a> and <a href="https://www.ctvnews.ca/canada/canada-failing-black-indigenous-prisoners-as-overrepresentation-persists-report-1.6135807">mass incarceration</a> of disadvantaged people. Black people are <a href="https://www.ohrc.on.ca/sites/default/files/A%20Disparate%20Impact%20Second%20interim%20report%20on%20the%20TPS%20inquiry%20executive%20summary.pdf">20 times</a> more likely to be killed by the police than a white person in Toronto. Indigenous Peoples make up around five per cent of Canada’s population, yet account for <a href="https://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20212022-eng.aspx">32 per cent</a> of the federal prison population. </p>
<p>Instead of addressing the root causes of violence, retributive justice perpetuates a vicious cycle where people are punished, stigmatized with a criminal record and released back into communities with limited support. The system dehumanizes and sets up criminalized people to fail, without adequate housing, employment and social support.</p>
<h2>Restorative justice</h2>
<p>Victims’ needs typically start with not wanting the harm to happen to anyone else. <a href="http://www.jpp.org/documents/forms/JPP9_2/RuthMorris.pdf">Victims want answers</a> to their questions. They want to know why the harm happened and what will be done to <a href="https://www.victimsfirst.gc.ca/res/pub/gfo-ore/pdf/RestorativeJustice.pdf">repair the damage</a> so the person who caused the violence can take responsibility and make changes in their lives. Reparations, either symbolically with an apology or financially, can go a long way to help victims recover. </p>
<p><a href="https://cjiwr.com/about-us/what-is-restorative-justice/">Restorative justice (RJ)</a> is an alternative approach that uses dialogue to address violence where victims, people who caused harm and community members come to an agreement on what should be done to reconcile and transform the root causes of the problem for individual, cultural and societal change. </p>
<p>RJ allows victims to have their voice heard and to hold people who cause harm accountable by making amends and changing behaviours. The community also sets up a broader support system to prevent future victimization using education and social networks. </p>
<p>But restorative justice programs need co-operation and funding from the criminal justice system and the government to scale up initiatives across the country.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/495717/original/file-20221116-2576-tvx7u8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman places her hand on a man's shoulder. Other people sit around the man." src="https://images.theconversation.com/files/495717/original/file-20221116-2576-tvx7u8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/495717/original/file-20221116-2576-tvx7u8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/495717/original/file-20221116-2576-tvx7u8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/495717/original/file-20221116-2576-tvx7u8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/495717/original/file-20221116-2576-tvx7u8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/495717/original/file-20221116-2576-tvx7u8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/495717/original/file-20221116-2576-tvx7u8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Restorative justice is an alternative approach that uses dialogue to address violence.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<p>In 2015, the federal government adopted the <a href="https://laws-lois.justice.gc.ca/eng/annualstatutes/2015_13/page-1.html">Victims Bill of Rights Act</a>, which gave victims of crime the right to information, protection, participation and restitution. </p>
<p>However, a 2020 <a href="https://www.victimsfirst.gc.ca/res/pub/prcvbr-reccdv/index.html">progress report</a> from the ombudsman found that implementation of the bill has been sporadic and inconsistent because it has no strategic action plan, limited training opportunities for justice officials, poor data collection measures, little public awareness or outreach about victims; rights and a lack of funding for restorative justice.</p>
<p>The bill also left out the most important right: support services for victims at a standard level throughout the country. Victims’ rights are not enforceable by law and the legislation only provides a <a href="https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2022-vctm-cmplnt-rsltn-mchnsms/index-en.aspx">complaints process</a> to remedy the situation. </p>
<p>The justice and human rights committee is scheduled to release a report next year. Hopefully, the federal government will make the necessary reforms to increase funding for provincial and territorial governments that will allow them to administer victim services and restorative justice. </p>
<p>The federal government also needs one office for victims that works across departments and jurisdictions to implement a renewed <a href="https://www.justice.gc.ca/eng/rp-pr/cp-pm/eval/rep-rap/11/fvs-sfv/p2.html">victims’ strategy</a>, one that goes beyond small pilot projects and public education about victims’ role in the criminal justice system. The office should engage regularly with non-governmental organizations and grassroots collectives so the voices of victims are heard and changes are made.</p>
<p>Providing victims with dignity, respect and fairness requires more than words. It must include real actions to support their needs, providing more options for restorative justice and changing the way systems run to be more human-centred and to uphold rights.</p><img src="https://counter.theconversation.com/content/193067/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeffrey Bradley is affiliated with the Criminalization and Punishment Education Project which brings together critical criminologists, students, researchers, community members, front-line workers, and those affected by criminalization and punishment, to carry out such public education, activism, and research in the hopes of creating social change.</span></em></p>Victims of violence are often retraumatized by a legal process that puts prosecuting the accused ahead of supporting the victim.Jeffrey Bradley, Ph.D. Candidate, Legal Studies, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1932372022-11-15T13:30:16Z2022-11-15T13:30:16ZNigeria has too many prison inmates awaiting trial. Technology could achieve swifter justice<figure><img src="https://images.theconversation.com/files/493842/original/file-20221107-15-in36l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An activist protests against the incarceration of hundreds of inmates imprisoned without trial in Nigeria. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-of-the-organisation-for-civil-rights-and-equal-news-photo/1228319258?phrase=prisons%20inmates%20nigeria&adppopup=true">Pius Utomi Ekpei/AFP via Getty Images </a></span></figcaption></figure><p>Nigeria’s prison population is more than <a href="https://www.corrections.gov.ng/statistics_summary">76,000</a>, housed in <a href="https://www.prisonstudies.org/country/nigeria">240</a> correctional centres. About <a href="https://www.corrections.gov.ng/statistics_summary">70%</a> of these inmates are still awaiting trial. They have been arrested and charged, but not yet convicted or cleared.</p>
<p>This is the highest percentage of awaiting-trial prisoners in Africa. World Prison Brief’s latest report puts the figure at <a href="https://www.prisonstudies.org/country/ghana">12.4% for Ghana</a> and <a href="https://www.prisonstudies.org/country/south-africa">32.9% for South Africa</a>.</p>
<p>The presumption of innocence is enshrined in Nigeria’s constitution, in <a href="https://streetlawyernaija.com/section-36-of-the-constitution-fair-hearing/#:%7E:text=of%20the%20matter">section 36(5)</a>. It says:</p>
<blockquote>
<p>Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. </p>
</blockquote>
<p>But the reality in Nigeria, as a number of <a href="https://www.prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_briefing_final.pdf">researchers have shown</a>, is that many people accused of crimes are presumed to be guilty. They are arrested and imprisoned before their cases are investigated. </p>
<p>Add to this a <a href="https://omaplex.com.ng/adjudication-timeframe-in-nigerias-criminal-jurisprudence-the-bill-that-should-have-passed/">court system beset by delays and backlogs</a> – it’s no wonder that Nigeria has so many inmates awaiting trial.</p>
<p>There are reports of accused people <a href="https://www.nytimes.com/2017/09/19/us/alabama-kharon-davis-speedy.html">spending 10 years awaiting trial in the US</a>, and between <a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">12 and 15 years in Nigeria</a>. This long wait in Nigeria is against <a href="https://www.lawglobalhub.com/section-293-299-administration-of-criminal-justice-act-2015/#:%7E:text=Section%20296%20Administration%20of%20Criminal%20Justice%20Act%202015,-Time%20and%20protocol&text=(1)%20Where%20an%20order%20of,returnable%20within%20the%20same%20period">section 296 of the 2015 Administration of Criminal Justice Act</a>. The law provides that the period of remand should not exceed 28 days. </p>
<p>There have been some efforts to address the situation. The government offers some free legal services through <a href="https://legalaidcouncil.gov.ng/">the Legal Aid Council</a>. It provides free legal assistance and representation, legal advice and alternative dispute resolution to indigent Nigerians to enhance access to justice. But the problem seems intractable.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/waiting-for-trial-can-be-worse-than-facing-the-sentence-a-study-in-nigerian-prisons-145480">Waiting for trial can be worse than facing the sentence: a study in Nigerian prisons</a>
</strong>
</em>
</p>
<hr>
<p>We wondered whether a technological solution might be a step towards addressing trial backlogs.</p>
<p>So we set out <a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">to study</a> the situation at two correctional centres in Abakaliki and Afikpo, towns in Ebonyi State in south-east Nigeria. We investigated the underlying causes of long awaiting-trial periods and ways of addressing them.</p>
<p>The main causes of delay include the slow pace of investigation by the police and the loss of case files. Others are an inadequate court system and poor access to lawyers. </p>
<p>Our findings suggest that a repository portal system could help address most of the issues delaying trials. The portal would be a database where information about accused persons and their current trial status would be stored. It would be easily accessible, too. Material relating to investigations and police findings could be uploaded to the portal, which would then automatically allocate cases, depending on the nature of the alleged offences, to the relevant court. </p>
<p>This would address the challenge of loss or manipulation of data by criminal justice agents, like the police and correctional centre officials. It also tackles the challenge posed by manually sorting through large files. </p>
<p>A system like this has not been proposed or applied in any African country yet.</p>
<h2>What we did</h2>
<p><a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">Our study</a> focused on 1,343 inmates at Abakaliki and Afikpo correctional centres. Of that figure, 845 (63%) were awaiting trial.</p>
<p>We used structured questionnaires and unstructured in-depth interviews with a sample of 1,498 respondents drawn from the Nigerian criminal justice agencies and “awaiting-trials”. We asked the participants about their experiences in the criminal justice system, whether the processes were automated or manual, and how the process affected their experience. This was with a view to identifying the gaps caused by manual methods in the system, and determining how information and communication technology could fill that gap. </p>
<p>Nigeria’s criminal justice bureaucracy uses manual processes to record and preserve information about suspects and evidence, transfer case files, prepare for suspects’ court appearances and allocate cells to inmates. </p>
<p>Some of the problems identified are losses of case files, degradation of evidence and delays in preparing inmates for court appearances. Other problems are delays in concluding cases and improper allocation of cells. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/nigerias-jailbreaks-point-to-a-prison-system-out-of-step-with-reality-186935">Nigeria's jailbreaks point to a prison system out of step with reality</a>
</strong>
</em>
</p>
<hr>
<p>The results showed that 39.1% of the police officers (241 of 617), 69% of the prison officials (100 of 145) and 53.1% of the court officials (60 of 113) were of the view that automation of the criminal justice processes using a repository system could address the delays. </p>
<p>These findings are in line with our qualitative data. The criminal justice agents we interviewed affirmed the importance of linking and automating all the criminal justice agencies with a repository system. </p>
<h2>Developing the portal</h2>
<p>The information on the portal should categorise offences as simple, misdemeanour or felony. There should be detailed information about the suspects, offences they are accused of and legal provisions guiding such offences. </p>
<p>Here’s the process we propose for using the repository system:</p>
<ul>
<li><p>police upload cases onto a database</p></li>
<li><p>the system can transfer cases to the nearest courts of competent jurisdiction</p></li>
<li><p>the trial can commence</p></li>
<li><p>after judgement, those found guilty will be sent to correctional centres to serve their sentences</p></li>
<li><p>those acquitted will be released and their cases will be marked closed.</p></li>
</ul>
<p>To ensure seamless functioning of the system, a monitoring body should be created, independent from the Nigerian Correctional Service. It would monitor the activities of the criminal justice agents.</p><img src="https://counter.theconversation.com/content/193237/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Benjamin Okorie Ajah does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A central repository system offers practical solutions to reducing the large number of awaiting-trial inmates in Nigeria.Benjamin Okorie Ajah, Lecturer, University of NigeriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1924602022-10-27T10:14:49Z2022-10-27T10:14:49ZThe jury that asked the spirit world for a verdict – and other bizarre tales from the courtroom<figure><img src="https://images.theconversation.com/files/490355/original/file-20221018-4535-wiwrw6.jpg?ixlib=rb-1.1.0&rect=358%2C191%2C7487%2C5119&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/ouija-board-candles-arrangement-above-view-2172537103">Artman96 / Shutterstock</a></span></figcaption></figure><p>Criminal justice systems vary around the world. But in many countries, for hundreds of years, people have faced trial by a jury of their peers. In England and Wales, a jury is a group of 12 members of the public who are called to sit as judges of fact in even the most serious criminal cases. Juries are presented with long-winded arguments by (generally) talented lawyers about the exact circumstances which may or may not have happened. They then have to answer one simple question: is the defendant on trial guilty or not?</p>
<p>High-profile cases may make one wonder just how juries reach their decisions. We can find a humorous answer in the case of Socrates. The ancient Greek philosopher was put on trial for “corrupting the minds of the youth” and brought before an ancient Athenian jury of around 500 people. It is said that Socrates launched a vigorous defence of himself before the jury returned a guilty verdict, at which point he supposedly insulted them. Unfortunately for him, the jury had not yet decided on the sentence and as a <a href="https://www.britannica.com/biography/Socrates/The-publics-hatred-of-Socrates">direct result of his insults</a> they sentenced him to death. </p>
<p>While that was more than two thousand years ago and the exact details are questionable, juries today can behave just as, if not more, bizarrely. In my research on the role of the criminal jury in England and Wales, I’ve come across plenty of odd jury behaviour. Here are a few highlights.</p>
<h2>Trial by spirit</h2>
<p>In a brutal <a href="https://www.independent.co.uk/news/uk/couple-s-murderer-jailed-in-ouija-board-retrial-1389824.html">1995 murder case</a>, the jury was asked to consider whether Stephen Young had broken into the cottage of two newlyweds from Essex, <a href="https://www.theargus.co.uk/news/5095677.our-daughters-killer-wrecked-our-lives-too/">Harry and Nicola Fuller</a>. The prosecution alleged that after breaking in, Young shot them both to death, executing Nicola Fuller as she began to dial 999.</p>
<p>In horrific cases like this, juries usually consider witness testimony, DNA evidence and statements from the victims’ next of kin. But in the Young case, they turned to the supernatural.</p>
<p>While the jury was sequestered (when a court places a jury under police protection for the duration of a trial) four jurors met up in their hotel’s restaurant. Banned from watching television and having consumed a few drinks, they used a Ouija board that one juror had smuggled in to contact the spirits of the Fullers and ask who murdered them. The answer led to the jury delivering a guilty verdict. However, once the use of the Ouija board was revealed, the accused was granted a retrial, and promptly found guilty – this time, based on earthly evidence.</p>
<h2>Trial by (social) media</h2>
<p>We often talk about the impact of media on the outcome of a high-profile case, but what about social media? In <a href="https://www.theguardian.com/uk/2011/jun/16/facebook-juror-jailed-for-eight-months">a 2011 case</a>, jurors were asked to consider serious drug charges against eight defendants. </p>
<p>One of the jurors found a defendant’s email address during deliberations and reached out to her. This led to the two adding each other on Facebook, where they discussed several things about the case including other defendants. The level of this misconduct led to not only the conviction being overturned, but the juror being sentenced to eight months imprisonment.</p>
<h2>Trial by the Bible</h2>
<p>The two cases above reflect poor judgement by one or a few errant jurors, but in the 2013 trial of Vicky Pryce, the entire jury’s behaviour was odd. Pryce was accused (and eventually convicted) of perverting the course of justice, after taking driving licence points for her then-husband, former energy secretary Chris Huhne, who had been caught speeding years earlier.</p>
<p>The jury presented the judge with a <a href="https://www.bbc.co.uk/news/uk-21521460">list of questions</a>. While <a href="https://www.independent.co.uk/news/uk/crime/vicky-pryce-trial-q-can-a-juror-come-to-a-verdict-based-on-a-reason-that-was-not-presented-in-court-and-has-no-facts-or-evidence-to-support-it-8503566.html">reports vary</a> over their exact wording, the questions were at once bizarre and ignorant of the justice process. In addition to asking the judge to define “reasonable doubt”, they included:</p>
<ul>
<li>whether the jury could come to a verdict, not because of evidence that was presented at trial but just because they want to</li>
<li>whether the jury can plainly speculate about the relevant facts,
and arguably, the most outrageous:</li>
<li>whether the jury could consider the core tenets of religion as the basis for their verdict instead of the law.</li>
</ul>
<p>The court, dismayed by these “fundamental <a href="https://www.independent.co.uk/news/uk/crime/vicky-pryce-trial-q-can-a-juror-come-to-a-verdict-based-on-a-reason-that-was-not-presented-in-court-and-has-no-facts-or-evidence-to-support-it-8503566.html">deficits</a> of understanding”, discharged the jury and <a href="https://www.theguardian.com/law/2013/feb/20/vicky-pryce-jury-discharged#:%7E:text=The%20jury%20in%20the%20trial,taking%20speeding%20points%20for%20him.">ordered a retrial</a>.</p>
<figure class="align-center ">
<img alt="Close up of the front door of the Old Bailey, with the Royal Courts of Justice sign and insignia on the concrete" src="https://images.theconversation.com/files/491347/original/file-20221024-8945-vcnlj0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/491347/original/file-20221024-8945-vcnlj0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/491347/original/file-20221024-8945-vcnlj0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/491347/original/file-20221024-8945-vcnlj0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/491347/original/file-20221024-8945-vcnlj0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/491347/original/file-20221024-8945-vcnlj0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/491347/original/file-20221024-8945-vcnlj0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">What really goes on in jury deliberation rooms?</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-uk-may-9-2006-known-216214984">pxl.store / Shutterstock</a></span>
</figcaption>
</figure>
<p>You may be wondering what the legal system itself has to say about this kind of behaviour. Surely, if a jury decided a case on something as random as flipping a coin (or using a Ouija board) their verdict should be overturned.</p>
<p>This was the issue brought to the House of Lords in a joint appeal for <a href="https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040122/conn-1.htm">two cases</a> where the secrecy of jury deliberations was a concern.</p>
<p>The judges were asked to consider on what grounds a jury’s verdict could be overturned, for example if they reached their verdict out of bias, or out of randomness – like a coin toss. The court said that while a verdict could be overturned if it was decided based on personal bias, it was less clear when it came to the coin toss question. In subsequent appeals, this question has never been raised again – meaning that theoretically, a jury can decide a case on flipping a coin as long as the jurors didn’t have any particular bias against the defendant. </p>
<p>These tales of jury behaviour are unusual for a reason – most verdicts are decided based on the facts of the case, and accepted without controversy. But the secrecy of the jury process means that we may never know exactly what goes on behind the closed doors of deliberation rooms.</p><img src="https://counter.theconversation.com/content/192460/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Liam Martin Bird receives funding from Student Loans Company . </span></em></p>You be the judge: just how wacky can jury decisions be?Liam Martin Bird, PhD Student, Part-time teacher in Law & Criminology, Aberystwyth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1885312022-08-11T23:25:26Z2022-08-11T23:25:26ZSam Uffindell was lucky to avoid NZ’s criminal justice system as a schoolboy – but it was the right outcome<figure><img src="https://images.theconversation.com/files/478840/original/file-20220811-5086-wzg4ed.jpg?ixlib=rb-1.1.0&rect=7%2C0%2C5236%2C3490&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>However you look at it, the National Party has selected someone who once <a href="https://www.newshub.co.nz/home/politics/2022/08/national-s-sam-uffindell-admits-to-being-school-bully-concedes-violent-assault-on-13-year-old-was-a-crime.html">committed an act of criminal violence</a> to represent the Tauranga electorate in parliament.</p>
<p>It’s an unfortunate move for a self-styled party of law and order, but perhaps it should be welcomed. If the party is able to forgive Sam Uffindell, then perhaps it’s also time for bipartisan efforts to make the justice system itself more forgiving, particularly when it affects children. </p>
<p>There have been more allegations about Uffindell’s past behaviour, and the National Party has begun an inquiry. But by his own admission, Uffindell <a href="https://www.stuff.co.nz/national/politics/129523554/the-bullying-claims-against-sam-uffindell-and-what-is-next-for-nationals-newest-mp">took part in a group attack</a> when he was a 16-year-old schoolboy that led to the serious bruising and traumatising of a 13-year-old pupil. </p>
<p>The victim has said he believed wooden <a href="https://www.stuff.co.nz/national/politics/300656643/national-mp-sam-uffindell-asked-to-leave-prestigious-kings-college-after-violent-nighttime-attack-on-younger-boy">bed legs were used</a> in the attack. Although he was lucky not to be more seriously injured, the perpetrators were perhaps even luckier. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1557285634867220480"}"></div></p>
<h2>Treating children as criminals</h2>
<p>As a criminal barrister I have advised many clients over the years whose murder convictions were based on attacks by small groups using improvised blunt weapons. They were unlucky enough that the victim’s injuries led to their death. The schoolboys in this case were perhaps lucky enough this didn’t happen. </p>
<p>If you attack someone with blunt instruments as part of a group action you are running the very real risk of a homicide conviction. The difference between a life sentence and a life representing a political party may be just a matter of inches. </p>
<p>The attackers in the Uffindell case were also lucky enough to avoid the justice system. This is significant because if you enter the justice system as a child (aged under 18 according to the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child">UN Convention on the Rights of the Child</a>) it is remarkably difficult to get out. </p>
<p>Early conviction is a major predictor of future offending. What’s known as “<a href="https://www.simplypsychology.org/labeling-theory.html">labelling theory</a>” suggests that defining someone as “criminal” at an early age helps create a self-fulfilling prophecy. Children treated as criminals early on begin to assume that identity.</p>
<p>For this reason, child rights advocates urge the use of <a href="https://youthlaw.co.nz/rights/police-the-youth-justice-system/diversion-17-years/">diversion and other methods</a> of dealing with children who engage in criminality. An informal version of this is exactly what happened to Uffindell.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1557198567281815557"}"></div></p>
<h2>Scaling up forgiveness</h2>
<p>Expulsion from school is certainly a harsh penalty. But in effect, Uffindell was simply moved to a different branch of the Anglican boarding school network. He avoided conviction and criminal punishment and went on to be forgiven and welcomed into the banking and political establishments.</p>
<p>This is, in fact, a great outcome for children who commit a crime. Their later lives are not ruined and they are able to grow out of their immature and violent phase. This forgiveness and informality is to be welcomed. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/sending-teens-to-maximum-security-prisons-shows-australia-needs-to-raise-the-age-of-criminal-responsibility-187768">Sending teens to maximum security prisons shows Australia needs to raise the age of criminal responsibility</a>
</strong>
</em>
</p>
<hr>
<p>The question, then, is how do we take such forgiveness to scale? How do we ensure that someone with a different background, who committed the same offence in a different setting, also gets the benefit of this forgiveness? This is the new challenge for National.</p>
<p>Uffindell used part of his <a href="https://www.parliament.nz/mi/pb/hansard-debates/rhr/combined/HansDeb_20220802_20220802_40">maiden speech</a> in parliament to mark himself out as tough on crime. He bemoaned (apparently without irony) “a growing culture of lawlessness, lack of accountability, a sense of impunity”. </p>
<p>Less well reported were his calls for a “social investment” approach to reducing crime. This involves investing early in the lives of at-risk people to prevent the state being what Uffindell called “the ambulance at the bottom of the cliff”.</p>
<p>As a beneficiary of forgiveness himself, perhaps he is open to more progressive justice policies.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1557074677126012928"}"></div></p>
<h2>New Zealand out of step</h2>
<p>There are many ways to reform the justice system for children. But the two biggest (and legislatively perhaps the easiest) reforms would be to raise the minimum age of criminal responsibility (MACR) and to eliminate life sentences for children. </p>
<p>Currently, both these policies mean New Zealand is out of step with international standards. Our MACR is ten, a “low” age <a href="https://www.oecd.org/els/family/PF_1_8_Age_threshold_Childhood_to_Adulthood.pdf">according to the OECD</a>. Only three other OECD members share an MACR as low as this. </p>
<p>The New Zealand Human Rights Commission has argued the minimum age should be <a href="https://www.ohchr.org/Documents/HRBodies/CRC/GC10/HumanRightsCommissionNewZealand.docx">raised to 14</a>. While children aged ten and 11 are unlikely to have charges end in court, <a href="https://www.justice.govt.nz/assets/Documents/Publications/viiw47-Children-and-young-people-data-notes-and-trends-dec2021-v2.0.pdf">2% of charges</a> that ended in court in 2021 involved 12 and 13 year olds.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/locking-up-kids-damages-their-mental-health-and-sets-them-up-for-more-disadvantage-is-this-what-we-want-117674">Locking up kids damages their mental health and sets them up for more disadvantage. Is this what we want?</a>
</strong>
</em>
</p>
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<p>At present, once you’ve reached the age of ten, the state can send you to prison for life. This happened only last week in New Zealand to a <a href="https://www.theguardian.com/world/2022/jul/29/new-zealand-15-year-old-boy-receives-life-sentence-for">15-year-old boy</a>. </p>
<p>Again, this is out of step with <a href="https://archive.crin.org/sites/default/files/crin_life_imprisonment_summary.pdf">standards in the EU</a> and elsewhere. While the UK and the US do use life sentences for children, it’s notable that only one EU country (Ireland) imposes them. </p>
<p>If children committing serious offences can be managed without a life sentence in Germany and Spain, why can’t New Zealand do it too? Instead of ruining more lives with life sentences and ineffective criminal convictions, why not reduce the scope and severity of penalties for children who offend?</p>
<p>Is it now time for the National Party – and others – to ask whether the forgiveness shown Uffindell should be extended to all young people. Major reform of the justice system for children is long overdue. Perhaps that can be Sam Uffindell’s legacy.</p><img src="https://counter.theconversation.com/content/188531/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>James Mehigan has previously served on the legal advisory panel of the Child Rights International Network. </span></em></p>Sam Uffindell experienced a form of forgiveness after assaulting a younger schoolboy 22 years ago. But this should be the norm under NZ’s child justice system, which is overdue for reform.James Mehigan, Senior Lecturer in Law, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1808382022-04-07T18:20:27Z2022-04-07T18:20:27ZKetanji Brown Jackson sworn in as Supreme Court justice: 4 essential reads<figure><img src="https://images.theconversation.com/files/471949/original/file-20220630-24-tbz0gx.jpg?ixlib=rb-1.1.0&rect=7%2C164%2C5226%2C4017&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ketanji Brown Jackson is the first Black woman to serve on the highest court in the land.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-handout-provided-by-the-supreme-court-chief-justice-news-photo/1241630923?adppopup=true">Fred Schilling/Collection of the Supreme Court of the United States via Getty Images)</a></span></figcaption></figure><p>Shortly after noon on June 30, 2022, Ketanji Brown Jackson <a href="https://abcnews.go.com/Politics/judge-ketanji-brown-jackson-sworn-supreme-court-justice/story?id=85961957">took the judicial oath</a> and officially became a Supreme Court Justice of the United States – the first Black woman to sit on the bench.</p>
<p>The elevation of Jackson to the Supreme Court will not change the ideological setup of the bench – which will continue to be split 6-3 in favor of conservative justices.</p>
<p>Nonetheless, it is an important landmark in the history of the court – of the <a href="https://www.supremecourt.gov/about/members_text.aspx">115 justices on the Supreme Court</a> since it was established in 1789, 108 have been white men.</p>
<p>Race featured in Jackson’s confirmation process; so too did attempts to define her “<a href="https://www.usatoday.com/story/opinion/columnist/2022/03/24/ketanji-brown-jackson-defies-judicial-philosophy/7135573001/">judicial philosophy</a>.” The Conversation has turned to legal scholars to explain the meaning of Jackson’s ascension to the court.</p>
<h2>1. Realizing MLK’s ‘dream’</h2>
<p>The Senate Judiciary Committee vote moving Jackson’s confirmation toward a final Senate roll call took place on April 4, 2022 – 54 years to the day since Martin Luther King Jr. was assassinated. The significance of the date was not lost on <a href="https://www.american.edu/spa/faculty/bjackson.cfm">American University’s Bev-Freda Jackson</a>.</p>
<p>King’s words came up in Jackson’s confirmation hearing. Republican lawmakers suggested that his vision of an America in which people are judged “not by the color of their skin but by the content of their character” was at odds with critical race theory, a concept much maligned by conservatives that holds that racism is structural in nature rather than expressed solely through personal bias. Their implication: that Jackson believed in critical race theory and therefore rejected King’s vision.</p>
<p>Bev-Freda Jackson <a href="https://theconversation.com/ketanji-brown-jackson-and-the-color-blind-society-of-martin-luther-king-jr-180490">argues that this is a distortion</a>. “By recasting anti-racism as the new racism, conservative GOP leaders … use King’s words that advocated for a colorblind society as a critical part of their national messaging to advance legislation that bans the teachings of so-called divisive concepts,” she writes.</p>
<p>“Ketanji Brown Jackson is the very dream that King envisioned,” Jackson notes. “But he died before seeing the results of his nonviolent movement for social justice.”</p>
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Read more:
<a href="https://theconversation.com/ketanji-brown-jackson-and-the-color-blind-society-of-martin-luther-king-jr-180490">Ketanji Brown Jackson and the color blind society of Martin Luther King Jr.</a>
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<h2>2. On the shoulders of pioneers</h2>
<p>Now confirmed as a Supreme Court justice, Jackson has broken through the ultimate glass ceiling in terms of legal careers. She did so so on the shoulders of pioneering Black female judges.</p>
<p><a href="https://people.clas.ufl.edu/polssdw/">University of Florida’s Sharon D. Wright Austin</a> notes, even now, “relatively few Black women are judges at the state or federal level” – which makes the achievement of those who have made it to this level all the more remarkable.</p>
<p>Of the judges <a href="https://theconversation.com/ketanji-brown-jacksons-path-to-supreme-court-nomination-was-paved-by-trailblazing-black-women-judges-179728">highlighted by Austin</a>, there is Judge Jane Bolin, who became the country’s first Black female judge in 1939, serving as a domestic relations judge in New York for almost four decades. Later, in 1961, Constance Baker Motley became the first Black woman to argue a case before the Supreme Court. In all she argued 10 cases before the court, winning nine of them. Meanwhile, Judge Julia Cooper Mack is noted as the first Black woman to sit on a federal appellate court, having been appointed in 1975 and serving 14 years on the bench.</p>
<p>These women are to be celebrated and remembered. As Austin writes, “Representation matters: It is easier for young girls of color to aspire to reach their highest goals when they see others who have done so before them, in the same way that women like Jane Bolin, Constance Baker Motley and Julia Cooper Mack encouraged Ketanji Brown Jackson to reach hers.”</p>
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Read more:
<a href="https://theconversation.com/ketanji-brown-jacksons-path-to-supreme-court-nomination-was-paved-by-trailblazing-black-women-judges-179728">Ketanji Brown Jackson’s path to Supreme Court nomination was paved by trailblazing Black women judges</a>
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<h2>3. Echoes of the past</h2>
<p>The fact that a Black female Supreme Court justice was so long overdue is testament to the slow progress the U.S. has made toward racial – and gender – equality. </p>
<p>Margaret Russell, a <a href="https://www.scu.edu/ic/programs/bannan-forum/faculty-collaboratives/racial--ethnic-justice/margaret-russell/">constitutional law professor from Santa Clara University</a>, saw signs of this lack of advancement during parts of Jackson’s Senate Judiciary Committee confirmation hearings.</p>
<p>Questions directed at the then would-be Supreme Court justice were, according to Russell, <a href="https://theconversation.com/ketanji-brown-jacksons-supreme-court-hearing-is-a-flashback-to-how-race-and-crime-featured-during-thurgood-marshalls-1967-hearings-177306">tantamount to race-baiting</a>. They also sounded eerily similar to criticisms that then-Supreme Court nominee Thurgood Marshall, the first Black American nominee to the court, faced in his own confirmation hearings in 1967. </p>
<p>Both Jackson, now, and Marshall, then, stood accused by senators of being soft on crime and were asked about how they intended to bring race into their legal decisions. “Are you prejudiced against white people in the South?” Marshall was asked by a known white supremacist senator. Similarly, Jackson was asked during her confirmation hearings if she had a “hidden agenda” to incorporate critical race theory into the legal system.</p>
<p>“I find it striking,” Russell writes, “that race has surfaced in such a major way in these hearings, more than five decades after Marshall’s nomination. In some respects, there has been progress on racial equity in the U.S., but aspects of these hearings demonstrate that too much remains the same.”</p>
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Read more:
<a href="https://theconversation.com/ketanji-brown-jacksons-supreme-court-hearing-is-a-flashback-to-how-race-and-crime-featured-during-thurgood-marshalls-1967-hearings-177306">Ketanji Brown Jackson's Supreme Court hearing is a flashback to how race and crime featured during Thurgood Marshall's 1967 hearings</a>
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<h2>4. What Jackson will bring to the Supreme Court</h2>
<p>Jackson’s historic achievement of becoming the first Black female Supreme Court justice may distract from the fact she is also <a href="https://theconversation.com/supreme-court-nominee-ketanji-brown-jackson-faces-confirmation-hearings-7-questions-answered-179715">eminently qualified to sit on the highest court</a> in her own right.</p>
<p><a href="https://law.rutgers.edu/directory/view/ak1444">Alexis Karteron of Rutgers University-Newark</a> notes that the Harvard Law-trained Jackson went on to clerk for Stephen Breyer, the justice she has now replaced. She has served on the U.S. Sentencing Commission as well as acting as both a trial court and appellate judge.</p>
<p>Jackson is also the first former criminal defense attorney to be nominated to the Supreme Court since Marshall. This puts Jackson in a unique position on the bench. Karteron writes that having served as a public defender “will help [Jackson] understand the very real human toll of our criminal justice system. … The criminal justice system takes an enormous toll on both the people in the system and their loved ones. I believe having a Supreme Court justice who is familiar with that is incredibly valuable.”</p>
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Read more:
<a href="https://theconversation.com/supreme-court-nominee-ketanji-brown-jackson-faces-confirmation-hearings-7-questions-answered-179715">Supreme Court nominee Ketanji Brown Jackson faces confirmation hearings: 7 questions answered</a>
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<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives and updates an earlier version <a href="https://theconversation.com/ketanji-brown-jackson-set-for-historic-supreme-court-confirmation-vote-3-essential-reads-180531">originally published</a> on April 4, 2022.</em></p><img src="https://counter.theconversation.com/content/180838/count.gif" alt="The Conversation" width="1" height="1" />
Scholars discuss the meaning of Ketanji Brown Jackson’s elevation to the highest court in the land.Matt Williams, Senior International EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1771202022-03-31T12:44:28Z2022-03-31T12:44:28ZCriminal justice algorithms: Being race-neutral doesn’t mean race-blind<figure><img src="https://images.theconversation.com/files/454764/original/file-20220328-21-r0jyhg.jpg?ixlib=rb-1.1.0&rect=6%2C19%2C2111%2C1390&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An algorithm is the centerpiece of one criminal justice reform program, but should it be race-blind?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/lady-justice-against-laptop-monitor-royalty-free-image/1098212314?adppopup=true">the_burtons/Moment via Getty Images</a></span></figcaption></figure><p>Justice is supposed <a href="https://brill.com/view/book/9789004368675/B9789004368675_004.xml">to be “blind</a>.” But is race blindness always the best way to achieve racial equality? An algorithm to predict recidivism among prison populations is underscoring that debate.</p>
<p>The risk-assessment tool is a centerpiece of the <a href="https://www.bop.gov/inmates/fsa/overview.jsp">First Step Act</a>, which Congress passed in 2018 with significant bipartisan support, and is meant to <a href="https://crsreports.congress.gov/product/pdf/R/R45558">shorten some criminal sentences</a> and improve conditions in prisons. Among other changes, it rewards federal inmates with early release if they participate in programs designed to reduce their risk of re-offending. Potential candidates eligible for early release are identified using <a href="https://www.bop.gov/inmates/fsa/pattern.jsp">the Prisoner Assessment Tool Targeting Estimated Risk and Needs</a>, called PATTERN, which estimates an inmate’s risk of committing a crime upon release.</p>
<p>Proponents <a href="https://famm.org/famm-applauds-senate-passage-of-the-first-step-act/">celebrated the First Step Act</a> as a step toward criminal justice reform that provides a clear path to reducing the prison population of low-risk nonviolent offenders while preserving public safety.</p>
<p>But <a href="https://nij.ojp.gov/library/publications/2021-review-and-revalidation-first-step-act-risk-assessment-tool">a review of the PATTERN system</a> published by the Department of Justice in December 2021 found that PATTERN overpredicts recidivism among minority inmates by between 2% and 8% compared with white inmates. Critics fear that PATTERN is <a href="https://www.npr.org/2022/01/26/1075509175/justice-department-algorithm-first-step-act">reinforcing racial biases</a> that have long plagued the U.S. prison system.</p>
<p><a href="https://phil.ufl.edu/directory/dr-duncan-purves/">As ethicists</a> <a href="https://scholar.google.com/citations?user=gwYVPKQAAAAJ&hl=en">who research</a> the use of <a href="https://doi.org/10.1007/s10506-021-09286-4">algorithms in the criminal justice system</a>, we spend lots of time thinking about how to avoid replicating racial bias with new technologies. We seek to understand whether systems like PATTERN can be made racially equitable while continuing to serve the function <a href="https://www.brennancenter.org/our-work/research-reports/what-first-step-act-and-whats-happening-it">for which they were designed</a>: to reduce prison populations while maintaining public safety.</p>
<p>Making PATTERN equally accurate for all inmates might require the algorithm to take inmates’ race into account, which can seem counterintuitive. In other words, achieving fair outcomes across racial groups might require focusing more on race, not less: a seeming paradox that plays out in many discussions of fairness and racial justice.</p>
<h2>How PATTERN works</h2>
<p>The <a href="https://apps.urban.org/features/risk-assessment/">PATTERN algorithm</a> scores individuals according to a range of variables that have been shown to predict recidivism. These factors include <a href="https://doi.org/10.1016/j.jcrimjus.2013.08.004">criminal history</a>, education level, disciplinary incidents while incarcerated, and whether they have completed any <a href="https://www.jstor.org/stable/26507655">programs aimed at reducing recidivism</a>, among others. The algorithm predicts both general and violent recidivism, and does not take an inmate’s race into account when producing risk scores.</p>
<p>Based on this score, individuals are deemed high-, medium- or low-risk. Only those falling into the last category are eligible for early release.</p>
<figure class="align-center ">
<img alt="A woman in a white suit looks up at a man in a suit with his back to the camera." src="https://images.theconversation.com/files/454768/original/file-20220328-17-ko2npz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/454768/original/file-20220328-17-ko2npz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/454768/original/file-20220328-17-ko2npz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/454768/original/file-20220328-17-ko2npz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/454768/original/file-20220328-17-ko2npz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/454768/original/file-20220328-17-ko2npz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/454768/original/file-20220328-17-ko2npz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Then-President Donald Trump listens as Alice Marie Johnson, who was incarcerated for 21 years, speaks at the 2019 Prison Reform Summit and First Step Act Celebration at the White House.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2020TrumpCoalition/3e3ffb1a38674e85b6c54fab10042c57/photo?Query=%22first%20step%20act%22&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=166&currentItemNo=1">AP Photo/Susan Walsh</a></span>
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<p>The DOJ’s <a href="https://nij.ojp.gov/library/publications/2021-review-and-revalidation-first-step-act-risk-assessment-tool">latest review</a>, which compares PATTERN predictions with actual outcomes of former inmates, shows that the algorithm’s errors tended to disadvantage nonwhite inmates. </p>
<p>In comparison with white inmates, PATTERN overpredicted general recidivism among Black male inmates by between 2% and 3%. According to the DOJ report, this number rose to 6% to 7% for Black women, relative to white women. PATTERN overpredicted recidivism in Hispanic individuals by 2% to 6% in comparison with white inmates, and overpredicted recidivism among Asian men by 7% to 8% in comparison with white inmates.</p>
<p>These disparate results will likely strike many people as unfair, with the potential to reinforce existing racial disparities in the criminal justice system. For example, Black Americans are already <a href="https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/">incarcerated</a> at almost five times the rate of white Americans.</p>
<p>At the same time that the algorithm overpredicted recidivism for some racial groups, it underpredicted for others.</p>
<p>Native American men’s general recidivism was underpredicted by 12% to 15% in relation to white inmates, with a 2% underprediction for violent recidivism. Violent recidivism was underpredicted by 4% to 5% for Black men and 1% to 2% for Black women.</p>
<h2>Reducing bias by including race</h2>
<p>It is tempting to conclude that the Department of Justice should abandon the system altogether. However, computer and data scientists have developed <a href="https://doi.org/10.1145/3494672">an array of tools</a> over the past decade designed to address concerns about algorithmic unfairness. So it is worth asking whether PATTERN’s inequalities can be remedied.</p>
<p>One option is to apply “debiasing techniques” of the sort described in <a href="https://doi.org/10.1002/bsl.2465">recent work</a> by criminal justice experts Jennifer Skeem and Christopher Lowenkamp. As <a href="https://doi.org/10.1145/3097983.3098095">computer scientists</a> and <a href="https://www.virginialawreview.org/articles/measuring-algorithmic-fairness/">legal scholars</a> have observed, the predictive value of a piece of information about a person might vary depending on their other characteristics. For example, suppose that having stable housing tends to reduce the risk that a former inmate will commit another crime, but that the relationship between housing and not re-offending is stronger for white inmates than Black inmates. An algorithm could take this into account for higher accuracy.</p>
<p>But taking this difference into account would require that designers include each inmate’s race in the algorithm, which raises legal concerns. Treating individuals differently on the basis of race in legal decision-making risks violating <a href="https://www.law.cornell.edu/constitution/amendmentxiv">the 14th Amendment of the Constitution</a>, which guarantees equal protection under the law. </p>
<p>Several legal scholars, including <a href="https://www.law.virginia.edu/faculty/profile/dh9ev/2299809">Deborah Hellman</a>, have recently argued that <a href="https://www.virginialawreview.org/articles/measuring-algorithmic-fairness/">this legal concern is overstated</a>. For example, the law permits using racial classifications to describe criminal suspects and to gather demographic data on the census.</p>
<p>Other uses of racial classifications are more problematic. For example, racial profiling and <a href="https://theconversation.com/affirmative-action-around-the-world-82190">affirmative action</a> programs continue to be <a href="https://theconversation.com/watch-for-these-conflicts-over-education-in-2022-171457">contested in court</a>. But <a href="https://www.virginialawreview.org/articles/measuring-algorithmic-fairness/">Hellman argues</a> that designing algorithms that are sensitive to the way that information’s predictive value varies across racial lines is more akin to using race in suspect descriptions and the census. </p>
<p>In part, this is because race-sensitive algorithms, unlike racial profiling, do not rely on statistical generalizations about the prevalence of a feature, like the rate of re-offending, within a racial group. Rather, she proposes making statistical generalizations about the reliability of the algorithm’s information for members of a racial group and adjusting appropriately.</p>
<p>But there are also several <a href="https://link.springer.com/article/10.1007/s43681-021-00105-9">ethical concerns</a> to consider. Incorporating race might constitute unfair treatment. It might fail to treat inmates as individuals, since it relies upon statistical facts about the racial group to which they are assigned. And it might put some inmates in a worse position than others to earn early-release credits, merely because of their race.</p>
<h2>Key difference</h2>
<p>Despite these concerns, we argue there are good ethical reasons to incorporate race into the algorithm.</p>
<p>First, by incorporating race, the algorithm could be more accurate across all racial groups. This might allow the federal prison system to grant early release to more inmates who pose a low risk of recidivism while keeping high-risk inmates behind bars. This will promote justice without sacrificing public safety – what <a href="https://www.brennancenter.org/our-work/policy-solutions/federal-agenda-criminal-justice-reform">proponents of criminal justice reform want</a>.</p>
<p>Furthermore, changing the algorithm to include race can improve outcomes for Black inmates without making things worse for white inmates. This is because earning credits toward early release from prison is not a zero-sum game; one person’s eligibility for the early release program does not affect anyone else’s. This is very different from programs like <a href="https://www.jstor.org/stable/2264872">affirmative action</a> <a href="https://www.jstor.org/stable/2265014">in hiring</a> or education. In these cases, positions are limited, so making things better for one group necessarily makes things worse for the other group.</p>
<p>As PATTERN illustrates, racial equality is not necessarily promoted by taking race out of the equation – at least not when all participants stand to benefit.</p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://memberservices.theconversation.com/newsletters/?source=inline-likethis">Sign up for The Conversation’s daily newsletter</a>.]</p><img src="https://counter.theconversation.com/content/177120/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Duncan Purves receives funding from The National Science Foundation. </span></em></p><p class="fine-print"><em><span>Jeremy Davis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A cornerstone of the First Step Act, passed with bipartisan support, is the PATTERN risk-assessment tool.Duncan Purves, Associate Professor of Philosophy, University of FloridaJeremy Davis, Postdoctoral Associate, University of FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1736232022-01-12T13:38:39Z2022-01-12T13:38:39Z‘Southern hospitality’ doesn’t always apply to Black people, as revealed in the killing of Ahmaud Arbery<figure><img src="https://images.theconversation.com/files/440164/original/file-20220111-19-11o68uq.jpg?ixlib=rb-1.1.0&rect=1073%2C343%2C4795%2C3475&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Wanda Cooper-Jones, mother of Ahmaud Arbery, listens as attorneys speak outside the Glynn County Courthouse on July 17, 2020, in Brunswick, Georgia. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/wanda-cooper-jones-mother-of-ahmaud-arbery-listens-as-news-photo/1227671960?adppopup=true">Photo by Sean Rayford/Getty Images</a></span></figcaption></figure><p>The idea of community and who belongs and who does not was a common theme in the Jan. 7, 2022, sentencing hearing of three white men convicted of killing Ahmaud Arbery.</p>
<p>“They chose to target my son because they didn’t want him in their community,” said <a href="https://www.independent.co.uk/news/world/americas/crime/ahmaud-arbery-wanda-cooper-jones-sentencing-b1988754.html">Arbery’s mother, Wanda Cooper-Jones</a>, during the hearing. “When they couldn’t sufficiently scare him or intimidate him, they killed him.”</p>
<p>Arbery was the 25-year-old unarmed Black man who was shot to death on Feb. 23, 2020, while jogging through a predominantly white, middle-class <a href="https://www.nytimes.com/article/satilla-shores-ahmaud-arbery-killing.html">neighborhood in Brunswick, Georgia</a>. Race went largely unspoken throughout the trial, but the idea of belonging was clearly drawn in black and white.</p>
<p>As a <a href="https://www.linkedin.com/in/barbara-combs-4181566">professor of sociology and criminal justice</a> at Clark and Atlanta University, I have witnessed and studied perfunctory Southern ways that are often referred to as Southern “gentility” and Southern “hospitality.” These “Southern” ways of knowing and being get presented as niceties, but they often serve to maintain the racial order of the past.</p>
<p>On their face, these common rituals – like waving to neighbors and strangers – brand the Southerner as gentler and kinder than others, closer to God, and perhaps even more patriotic. As practice, the actions tie people not only to the land, but to a culture. </p>
<p>That culture seems innocuous, innocent and friendly – but it is not. And the death of Ahmaud Arbery is a powerful example of how that gentility can camouflage deadly discrimination. </p>
<h2>Racial reckoning</h2>
<p>In a nation still reeling from the murder of George Floyd and other violent attacks on people of color, many breathed a momentary <a href="https://www.washingtonpost.com/national/relief-optimism-and-acknowledgment-that-work-remains-after-jury-convicts-3-of-murder-in-ahmaud-arberys-death/2021/11/24/bc4c1b28-4d64-11ec-94ad-bd85017d58dc_story.html">sigh of relief</a> after Greg McMichael and his son Travis were sentenced to life in prison without the possibility of parole for Arbery’s murder.</p>
<p>McMichaels’ neighbor <a href="https://www.cnn.com/us/live-news/ahmaud-arbery-killing-mcmichael-bryan-sentencing/index.html">William “Roddie” Bryan</a> was given life in prison with the chance of parole. He had filmed the cellphone video as Arbery fell dead in the street. A jury <a href="https://www.ajc.com/news/ahmaud-arbery-case-the-charges-each-defendant-was-convicted-of/T7DH5TWHPNHLXK43OT5ALSWJNI/">convicted the three</a> in November of last year.</p>
<p>Before sentencing, Judge Timothy Walmsley paused for a minute of silence, which he later explained represented a fraction of the five minutes Arbery spent running from the three white men who chased him in pickup trucks on that Sunday afternoon. </p>
<p>“At a minimum,” <a href="https://www.insider.com/ahmaud-arbery-judge-makes-courtroom-sit-silence-sentencing-2022-1">Walmsley said</a>, “Ahmaud Arbery’s death should force us to consider expanding our definition of what a neighbor may be and how we treat them. I argue that maybe a neighbor is more than the people who just own property around your house. …”</p>
<figure class="align-center ">
<img alt="A pensive judge looks out into a courtroom with his hand pressed to his mouth." src="https://images.theconversation.com/files/440167/original/file-20220111-25-ovgtqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/440167/original/file-20220111-25-ovgtqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/440167/original/file-20220111-25-ovgtqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/440167/original/file-20220111-25-ovgtqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/440167/original/file-20220111-25-ovgtqk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/440167/original/file-20220111-25-ovgtqk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/440167/original/file-20220111-25-ovgtqk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Judge Timothy Walmsley looks on during the trial last November of three white men convicted of murdering 25-year-old Ahmaud Arbery.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/judge-timothy-walmsley-looks-on-as-the-prosecutors-make-news-photo/1236748716?adppopup=true">Photo by Octavio Jones-Pool/Getty Images</a></span>
</figcaption>
</figure>
<p>In a sense, Walmsley was asking those assembled in the courtroom and watching on television to put themselves in Arbery’s running shoes and imagine the sheer shock of discovering that Southern hospitality had a violent reality. </p>
<p>Terms commonly used among Southerners can likewise mean the opposite of how they sound.</p>
<p>Consider the “bless your heart” that is meant as anything but a blessing, and, in fact, is used as a <a href="https://www.southernliving.com/culture/bless-your-heart-response">heavy dose of sarcasm</a>. Or the respectful and deferential, “Yes, ma’am,” “No, sir,” or other courtesy titles customarily given to whites and withheld from Blacks, irrespective of their age. W.E.B. Du Bois referred to this last practice as “<a href="https://journals.sagepub.com/doi/pdf/10.1177/0090591718791744">the public and psychological wage of whiteness</a>.” Du Bois was suggesting that even among low-wage white earners, the racial identity of whiteness paid dividends that people of color could not collect. </p>
<p>Simple Southern practices like waving to strangers are steeped with double meanings that work to preserve a de facto segregation.</p>
<p>Consider: There is an expected action-interaction order present in the deed of speaking or otherwise gesturing to strangers. The salutation itself is a performance of belonging in the space. A specific response is expected. It may be a nod of the head, tip of the hat, raised hand or a simple hello. The routine says, “I know the rules of engagement here, and I accept them. You want me to make you feel comfortable with my presence here, and I am willing to do that.”</p>
<p>Arbery did not engage the men or play the game of deference.</p>
<h2>Race and public space</h2>
<p>In <a href="https://journals.sagepub.com/doi/10.1177/15365042211058127">“How Ingrained Racism Became Invisible,”</a> I explain how place and where people belong and with whom is part of an often unspoken broader U.S. racial structure that positions whites on top and Blacks on the bottom. </p>
<p>In my <a href="https://journals.sagepub.com/doi/10.1177/0002764219859617">larger body of research</a>
I argue that despite advances by racial and ethnic minorities and other disadvantaged groups, vestiges of this American Jim Crow belief system still operate in society. This racial ideology may be more pronounced in some parts of the nation, like the U.S. South, but my research shows that this racial order is present above, below and across the Mason-Dixon Line.</p>
<p>Kara Cebulko, a <a href="https://global-studies.providence.edu/faculty-members/kara-cebulko/#:%7E:text=Brief%20Biography%3A,adulthood%20for%201.5%2D%20generation%20immigrants.">sociology and global studies</a> scholar, explains how racial privilege allows whites and those who pass as white to <a href="https://www.proquest.com/docview/2532411999">“navigate public space without being stopped, questioned, arrested, detained and/or deported.”</a></p>
<p>That clearly was not the case with Arbery, who was Black and couldn’t claim that privilege.</p>
<figure class="align-center ">
<img alt="A woman holds portraits of Ahmaud Arbery and George Floyd." src="https://images.theconversation.com/files/440309/original/file-20220111-20924-1mpkayd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/440309/original/file-20220111-20924-1mpkayd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/440309/original/file-20220111-20924-1mpkayd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/440309/original/file-20220111-20924-1mpkayd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/440309/original/file-20220111-20924-1mpkayd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/440309/original/file-20220111-20924-1mpkayd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/440309/original/file-20220111-20924-1mpkayd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A woman holds portraits of Ahmaud Arbery and George Floyd during an event in remembrance of George Floyd in Minneapolis, Minnesota, on May 23, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/woman-holds-portraits-of-ahmaud-arbery-and-george-floyd-news-photo/1233078158?adppopup=true">Photo by Kerem Yucel/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Protecting the racial status quo</h2>
<p>At sentencing, defense counsel continued to stress that the defendants had good intentions and simply wanted to support their community. In this telling of the story, the defendants were represented as good neighbors – hardworking individuals just looking out for one another. It was painted as the Southern way, and they were simply engaged in Southern hospitality. </p>
<p>But in the journal <a href="https://southernstudies.olemiss.edu/study-the-south/all-are-welcome/">Study the South, Betsie Garner</a> writes that Southern hospitality uses language and practices whose real purpose is “to exclude minorities and maintain their marginalized status in the community.” </p>
<p>“The politics of belonging in southern communities <a href="https://southernstudies.olemiss.edu/study-the-south/all-are-welcome/">continues to be determined in large part by the practice of southern hospitality,”</a> Garner says.</p>
<p>If the McMichaels’ and Bryan’s actions that day were to help their community, that community did not include Arbery.</p>
<p>Before his son, Travis, fired the shots that killed Arbery, defendant Greg McMichael told 911 dispatch the reason for his call: <a href="https://www.11alive.com/article/news/crime/911-calls-ahmaud-arbery/85-4819d3d9-6133-40de-b3a9-f8fa3f889574">“I’m out here at Satilla Shores. There’s a Black male running down the street.”</a></p>
<p>During cross-examination by the prosecutor at their trial, defendant Travis McMichael explained, <a href="https://www.cbsnews.com/news/ahmaud-arbery-travis-mcmichael-trial-running-threat/">“I wouldn’t say [I] ordered [Arbery to stop running], I was asking him … [in order to] keep the situation calm</a>.” But shortly after the murder, the senior McMichael told police, <a href="https://abcnews.go.com/US/wireStory/defendant-ahmaud-arbery-trapped-rat-slaying-81085944">“We had him trapped like a rat</a>.”</p>
<p><a href="https://www.nytimes.com/2021/11/18/us/ahmaud-arbery-travis-mcmichael-testimony.html">Travis McMichael argued he felt threatened by Arbery and feared for his own life</a> until he pulled out his shotgun and shot him. </p>
<p>Ahmaud Arbery’s sister didn’t mince words when she said she believed race – not self-defense – played a role in her brother’s shooting.</p>
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<p>“Ahmaud had dark skin that glistened in the sunlight like gold. He had thick, coily hair and he would often like to twist it,” Jasmine Arbery said at the sentencing hearing. “He was tall, with an athletic build. These are the qualities that made these men assume that Ahmaud was a dangerous criminal.”</p>
<p>By all accounts, Arbery was not a dangerous criminal. But in the eyes of three white vigilantes, Arbery was clearly not their neighbor.</p><img src="https://counter.theconversation.com/content/173623/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Barbara Harris Combs has received funding from UNCF/Mellon and the James Weldon Johnson Institute for the Study of Race and Difference at Emory University. </span></em></p>The murder of Ahmaud Arbery exemplifies the racial, often violent barriers still remaining in the US. The 25-year-old Black man was out for a jog. But three white men thought he was a criminal.Barbara Harris Combs, Associate Professor of Sociology and Criminal Justice, Clark Atlanta UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1700462021-10-17T14:35:38Z2021-10-17T14:35:38ZTrial of Ahmaud Arbery’s accused killers will scrutinize the use – and abuse – of ‘outdated’ citizen’s arrest laws<figure><img src="https://images.theconversation.com/files/426732/original/file-20211015-30-zrr471.jpg?ixlib=rb-1.1.0&rect=14%2C8%2C1891%2C921&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Defense set to claim that the three men accused over death of unarmed Black man were trying to conduct a citizen's arrest.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AhmaudArberyGeorgiaTrial/1bd424cfd2e94900aaecc46013d9ca78/photo?Query=Arbery&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=245&currentItemNo=6">Glynn County Detention Center via AP, File</a></span></figcaption></figure><p>The <a href="https://www.ajc.com/news/georgia-news/arbery-murder-trial-begins-monday-amid-a-burning-question/ATIOOAZ2MFGZ5J34N5P62BUMLE/">murder trial of three men</a> accused in the death of <a href="https://theconversation.com/the-killing-of-ahmaud-arbery-highlights-the-danger-of-jogging-while-black-138085">unarmed Black jogger Ahmaud Arbery</a> gets underway on Oct. 18, 2021, with the issue of what makes for a lawful citizen’s arrest set to be central to court arguments.</p>
<p>Arbery was shot dead on Feb, 23, 2020, after being pursued through a residential area of Brunswick, Georgia. </p>
<p>The three men accused in his killing – Greg McMichael, Travis McMichael and William Bryan – contend that they had <a href="https://www.bbc.com/news/world-us-canada-52623151">reason to believe</a> Arbery was responsible for home break-ins in the area. Arbery, they claim, was shot as he tried to resist a legal <a href="https://www.nbcnews.com/news/us-news/was-pursuit-killing-ahmaud-arbery-perfectly-legal-it-s-not-n1205581">citizen’s arrest</a> by wrestling a shotgun from Travis McMichael.</p>
<p>Whether the defendants acted lawfully will depend, in large part, on the strength of their citizen’s arrest claim. At a pretrial hearing in July, <a href="https://www.ajc.com/news/georgia-news/arbery-murder-trial-begins-monday-amid-a-burning-question/ATIOOAZ2MFGZ5J34N5P62BUMLE/">prosecutors noted</a> that Arbery was not carrying anything at the time of his death. They are expected to argue in the trial that there was no grounds for an attempted citizen’s arrest.</p>
<p>The controversy surrounding Arbery’s killing led to the <a href="https://apnews.com/article/ahmaud-arbery-georgia-arrests-government-and-politics-276c5e51f5363112537ceab4159f9dc5">repeal</a> of Georgia’s almost-150-year-old citizen’s arrest law. But as a <a href="https://sc.edu/study/colleges_schools/law/faculty_and_staff/directory/stoughton_seth.php">law professor and former police officer</a>, I’m aware that most states retain similar, <a href="https://www.nytimes.com/article/ahmaud-arbery-citizen-arrest-law-georgia.html">outdated laws</a> that set the stage for vigilantism.</p>
<h2>From ‘vigilant Snorers’ to police officers</h2>
<p>So-called “citizen’s arrest” laws, which allow private individuals to apprehend an alleged wrongdoer, have been around for centuries. Such laws protect people from civil or criminal liability in the event they “arrest” someone.</p>
<p>In theory, that makes sense. Public safety is everyone’s responsibility, after all. In practice, however, citizen’s arrest doctrines have set the stage for tragic, unnecessary and avoidable confrontations and deaths.</p>
<p>Modern citizen’s arrest rules can be traced back to 1285, when England’s <a href="https://thehistoryofengland.co.uk/resource/statute-of-winchester-1285/">Statute of Winchester</a> directed that citizens “not spare any nor conceal any felonies” and commanded that citizens bring “fresh suit” – prosecute – whenever they see “robberies and felonies committed.” </p>
<p>Back then, there was no “law enforcement” as we understand it today – no cops, no prosecutors. It was largely left to private citizens to apprehend and prosecute felons. </p>
<p>Prior to the <a href="https://time.com/4779112/police-history-origins/">development of professionalized police agencies</a> in the mid- to late-1800s, there was no particular legal distinction between arrests made by private citizens and those made by public officials.</p>
<p>In English cities and larger towns, able-bodied men were expected to take generally unpaid shifts patrolling as night watchmen. Watchmen were often conscripted, and citizens of means could hire someone to serve on their behalf, resulting in a dubious dedication to duty. </p>
<p>This practice extended beyond England to its colonies. An account <a href="https://smile.amazon.com/New-York-Eighteenth-Century-Municipality/dp/1273537610/">published in</a> the New York Gazette in the mid-18th century described night watchmen as “a parcel of idle, drinking, vigilant Snorers, who never quelled any nocturnal Tumult in their Lives.”</p>
<p>When watchmen did take action, they often did so in problematic ways. In New England, that often involved enforcing the ethnic segregation between different neighborhoods. In the mid-1600s, the slave codes of the colonial American South declared that controlling the enslaved population was a matter of public responsibility – the “public” here being exclusively white men. Paid and volunteer militiamen were tasked with, as the author Kristian Williams has noted, “<a href="https://smile.amazon.com/Our-Enemies-Blue-Kristian-2007-08-27/dp/B01N9N01BR/">making regular patrols to catch runaways, prevent slave gatherings, search slave quarters … and generally intimidate the black population</a>.”</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/338040/original/file-20200527-20255-104kbvf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A patrolman looking over the passes of plantation slaves.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-plantation-police-look-over-the-passes-of-a-few-negro-news-photo/615294610?adppopup=true">Corbis via Getty Images</a></span>
</figcaption>
</figure>
<h2>Shopkeeper’s privilege and security guards</h2>
<p>Today more than 18,000 local, state and federal agencies provide police services in the U.S. But citizen’s arrest lives on in the form of <a href="https://www.ncjrs.gov/App/abstractdb/AbstractDBDetails.aspx?id=44479">a national patchwork of statutes and common law doctrines</a>. </p>
<p>Most states have “<a href="https://cbr.cba.org/index.php/cbr/article/view/4559">shopkeeper’s privilege</a>” laws that provide a defense for business owners and employees <a href="https://scholar.google.com/scholar_case?case=17159519265033714409">who arrest someone for theft</a> so long as they have probable cause. Resisting such an arrest <a href="http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&URL=0800-0899/0812/Sections/0812.015.html">is a crime</a> in some states. Private security guards, similarly, may be <a href="https://www.scstatehouse.gov/code/t40c018.php">authorized to make arrests</a>, at least on the property they are hired to protect. And when bounty hunters capture someone who has jumped bail, <a href="https://scholar.google.com/scholar_case?case=2434794054734165793&q=%22is+likened+to+the+rearrest+by+the+sheriff+of+an+escaping+prisoner%22&hl=en&as_sdt=6,34">the Supreme Court has said</a> the arrest “is likened to the rearrest by the sheriff of an escaping prisoner.”</p>
<p>Those who are not a shopkeeper, security guard or bounty hunter may still be able to effect an arrest under more generic citizen’s arrest rules.</p>
<p>Citizen’s arrest rules are not the same as the legal rules that govern arrests by police officers. In some ways, private individuals have more limited authority to make arrests than officers.</p>
<p>In many states, for example, an officer can make arrests for offenses classified as misdemeanors – minor crimes typically punishable by up to a year in jail – but a private citizen cannot. </p>
<p>In other states, a private citizen may make an arrest only if they witness or have firsthand knowledge of an offense. This <a href="https://law.justia.com/codes/georgia/2010/title-17/chapter-4/article-4/17-4-60/">was the case in Georgia</a>, at least with regard to misdemeanor crimes, until public pressure after Arbery’s death led to the <a href="https://apnews.com/article/ahmaud-arbery-georgia-arrests-government-and-politics-276c5e51f5363112537ceab4159f9dc5">2021 repeal</a> of the state’s citizen’s arrest statute. Under the laws in effect at the time, Arbery’s pursuers would only have been able to make a citizen’s arrest if they had probable cause to believe that he had committed a felony.</p>
<p>In a similar vein, some states only permit individuals to invoke “citizen’s arrest” as a defense to civil or criminal liability if the person they arrested <a href="https://scholar.google.com/scholar_case?case=14000891240972281863&q=Commonwealth++v.Lussier,++128++N.E.2d++569++(Mass.++1955)&hl=en&as_sdt=6,34">actually committed an offense</a>, while officers are protected if they had probable cause to believe that the person committed an offense (even if that belief was incorrect).</p>
<p>But in other ways, private actors have more authority than officers do. Perhaps most obviously, the constitutional rules that limit
police authority to conduct searches, seizures, and interrogations <a href="https://scholar.google.com/scholar_case?case=11486599334992839241&q=428+U.S.+433+janis&hl=en&as_sdt=6,34">do not apply</a> when “a private party … commits the offending act.”</p>
<p>Citizens may have more authority to use force than law officers, too, depending on state law. </p>
<p>In <a href="https://www.scstatehouse.gov/code/t17c030.php">South Carolina</a>, a citizen can use deadly force to effect the nighttime arrest of someone who has any stolen property in their possession or, more problematically, someone who “flees when he is hailed” if the circumstances “raise just suspicion of his design to steal.” </p>
<p>If an officer in South Carolina did the same, he would likely run afoul of state law or the Fourth Amendment, which the Supreme Court <a href="https://scholar.google.com/scholar_case?case=5843997099226288287">has held</a> requires probable cause “that the suspect poses a significant threat of death or serious physical injury.”</p>
<h2>Race and status</h2>
<p>No one knows how many citizen’s arrests occur in the U.S. every year because the police are usually called and an officer processes the arrest, leaving little evidence of private involvement.</p>
<p>We do know, however, that private arrest authority is too often <a href="https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1435&context=cjlpp">badly misused</a> by <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/jgrj11&div=18">those who believe their higher social status</a> gives them authority over someone they perceive as having lower status. </p>
<p>Frequently, this <a href="https://historynewsnetwork.org/article/175619">falls along racial lines</a>, as seen in the <a href="https://www.washingtonpost.com/outlook/2019/05/07/what-is-citizens-arrest-why-is-practice-still-use/">detention of immigrants by militias at the U.S. border</a>, the attitude of <a href="https://www.washingtonpost.com/opinions/in-gated-communities-such-as-where-trayvon-martin-died-a-dangerous-mind-set/2012/04/06/gIQAwWG8zS_story.html">nightwatchmen in gated communities</a>, and in situations like the Arbery case.</p>
<p>The three defendants say they chased Arbery because they believed he was behind neighborhood burglaries and allege they <a href="https://www.tmz.com/2020/05/13/ahmaud-arbery-suspects-allegedly-confronted-mcmichael-february-11-shooting/">saw him trespass</a> prior to the incident. Arbery, of course, had committed no crime; under <a href="http://ga.elaws.us/law/section16-7-21">Georgia’s “criminal trespass” law</a>, entry onto “land or premises,” including a construction site, is only a crime when committed “with an unlawful purpose” or when there are posted “No Trespassing” signs. There is no evidence of either in this case. </p>
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<p>And even if Arbery had committed a burglary, his death would have still been the result of an unjustified act of vigilantism. As the <a href="https://scholar.google.com/scholar_case?case=5843997099226288287&q=tennessee+v.+garner&hl=en&as_sdt=6,34">Supreme Court has said</a> in the context of police uses of force, “It is not better that all felony suspects die than that they escape.” Remembering that as the U.S. considers reforming citizen’s arrest statutes may go a long way in preventing any further unnecessary deaths.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/ahmaud-arberys-killing-puts-a-spotlight-on-the-blurred-blue-line-of-citizens-arrest-laws-139275">article originally published</a> on May 29, 2020.</em></p><img src="https://counter.theconversation.com/content/170046/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Seth W. Stoughton does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Three men who pursued a black jogger who died of a shotgun wound in the confrontation claim they were trying to conduct a citizen’s arrest.Seth W. Stoughton, Associate Professor of Law, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1697112021-10-15T11:36:36Z2021-10-15T11:36:36ZDeath penalty can express society’s outrage – but biases often taint the verdict<figure><img src="https://images.theconversation.com/files/426014/original/file-20211012-19-1poe70c.jpg?ixlib=rb-1.1.0&rect=0%2C12%2C4319%2C3315&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In 2013, Dzhokhar Tsarnaev, with his brother Tamerlan, put bombs along the Boston Marathon route, killing and injuring many. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/photograph-of-marathon-bomber-dzhokhar-tsarnaev-sits-news-photo/473580678?adppopup=true">Jonathan Wiggs/The Boston Globe via Getty Images</a></span></figcaption></figure><p>In its hearing on Oct. 13, 2021, the Supreme Court <a href="https://www.nytimes.com/2021/10/13/us/politics/supreme-court-death-sentence-boston-marathon-bomber.html">appeared to favor reinstating the death sentence</a> for Dzhokhar Tsarnaev, who was found guilty of planting homemade bombs, with the help of his brother, Tamerlan, along the crowded Boston Marathon route on April 15, 2013. The bombs killed three people and injured 260.</p>
<p>As the brothers evaded police, <a href="https://www.washingtonpost.com/world/national-security/massive-police-operation-under-way-in-boston/2013/04/19/979ec6dc-a8c6-11e2-a8e2-5b98cb59187f_story.html">they killed a police officer and injured many others</a>. In attempting to escape, Dzhokhar Tsarnaev accidentally killed his brother by running him over with a vehicle. </p>
<p>Prosecutors brought the case to the Supreme Court after <a href="https://law.justia.com/cases/federal/appellate-courts/ca1/16-6001/16-6001-2020-07-31.html">the First Circuit Court of Appeals overturned the death sentence</a> for Dzhokhar Tsarnaev on the grounds that the prospective jurors were not screened sufficiently about their exposure to media coverage of the bombing, and the jurors were not given evidence of Tamerlan’s past crimes. </p>
<p>Tsarnaev’s lawyers wanted jurors to consider the influence of his older brother as a mitigating factor to lessen his sentences, and the evidence of Tamerlan’s past violence was a key part of that argument.</p>
<p>I study <a href="https://phil.washington.edu/people/amelia-wirts">criminal law and punishment as a political institution</a>, including how it must fit within the values of a liberal democracy to be justified. Tsarnaev’s case is complicated because of the immense harm he caused to so many people. </p>
<p>My research examines how punishment affects members of society beyond the criminals and their victims. One of the key ways that punishment has a broader social effect is its capacity to express strong moral condemnation of actions that violate the basic rights of members of society. </p>
<p>But punishment also expresses moral condemnation of the criminal. This is where the risk comes in because a strong negative attitude toward one individual can reinforce prejudicial stereotypes about racial and ethnic groups. </p>
<h2>Punishment and collective condemnation</h2>
<p><a href="https://philpeople.org/profiles/joel-feinberg">Joel Feinberg</a>, one of the most influential philosophers of law in the 20th century, explained that punishment has an “<a href="https://doi.org/10.5840/monist196549326">expressive function</a>.” By this, Feinberg meant that punishment expresses the idea that the government condemns the criminal action. Criminal conviction is not enough to express moral condemnation on its own, because punishment is necessary to show that criminal laws are more than empty words. </p>
<p>The capacity of punishment to send a message makes it useful for reinforcing a society’s values. In liberal democracies like the United States, the government represents members of society. Thus, punishment is one way that society expresses its values. Not only does the fact of punishment communicate that the society condemns an action, but also the severity of the sentence communicates how much it condemns the criminal act.</p>
<p>Feminist political theorist <a href="https://philpapers.org/rec/HAMPP">Jean Hampton</a> <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/uclalr39&div=48&id=&page=">explained</a> that the expressive capacity of punishment is valuable because it allows society to convey solidarity with the victims of crime. When people commit crimes, Hampton argued, they put their own goals and interests above those of the people they harm in the process. In cases of violent crime, this is especially true. Punishing Tsarnaev is a way of communicating that society values the lives of the victims.</p>
<p>If the idea that punishment communicates solidarity with victims seems abstract, consider a case where a crime was inadequately punished. <a href="https://www.washingtonpost.com/news/morning-mix/wp/2016/03/31/all-american-swimmer-found-guilty-of-sexually-assaulting-unconscious-woman-on-stanford-campus/">Brock Turner</a>, a Stanford student who was found guilty of sexual assault of an unconscious female student, was sentenced to just six months in county jail, though he would only serve half that. <a href="https://www.espn.com/college-sports/story/_/id/15938889/brock-turner-former-stanford-cardinal-swimmer-sentenced-six-months-jail">Many people were outraged</a> at the short sentence, given the nature of his crime and the strong evidence against him.</p>
<p><a href="https://www.mercurynews.com/2018/06/10/meet-michele-dauber-the-woman-who-won-the-persky-recall/">Stanford law professor Michele Dauber</a> led a successful campaign to recall the sentencing judge, and when <a href="https://www.nytimes.com/2018/06/06/us/politics/judge-persky-brock-turner-recall.html">she won, she said</a>, “"We voted that sexual violence, including campus sexual violence, must be taken seriously by our elected officials and by the justice system.”</p>
<p>The sentence was interpreted as a lack of solidarity with the victim and with all victims of sexual assault. The recall was a message to other judges that citizens wanted harsher punishments for rapists because harsher sentences would convey that the lives of victims of rape matter.</p>
<p>The capacity of punishment to communicate a society’s values is useful, but it can also reinforce negative attitudes toward the person who committed the crime – not just toward the criminal act itself. </p>
<p>In the Tsarnaev case, victims and strangers alike have moral reasons not only to condemn his criminal actions but also to condemn him. It would be understandable if people resented him or held other negative attitudes toward him, given the nature of his crime. When he is punished, the state is reinforcing and justifying those attitudes as legitimate. </p>
<h2>Risks of racial bias</h2>
<p>But the fact that punishment is an expression of negative attitudes makes it risky. To begin with, not all negative attitudes toward others are justified. </p>
<p><a href="https://doi.org/10.1016/j.riob.2009.10.001">Implicitly</a> or explicitly, one may dislike members of a racial group or ethnic minority, or associate negative stereotypes based on gender or sexual orientation. These sources of negative attitudes pose two kinds of risks given the expressive function of punishment. The first risk is that implicit or explicit racial biases will be confused for justified negative attitudes when a criminal defendant is prosecuted and punished. The second is that punishments themselves, even when justified, could reinforce existing implicit and explicit biases.</p>
<p>To understand how these two risks work, take the over-representation of Black Americans in the criminal legal system. Recent data shows that, even though incarceration rates for Black men are the lowest they have been since 1989, they are still <a href="https://bjs.ojp.gov/content/pub/pdf/p18_sum.pdf">5.8 times more likely to be incarcerated than white men</a>. </p>
<p>Black defendants are <a href="https://harvardcrcl.org/wp-content/uploads/sites/10/2020/07/07.30.2020-Phillips-Marceau-For-Website.pdf">not only more likely to be sentenced to death</a> than their white counterparts, but also, once sentenced, they are more likely to actually be executed than white death row inmates. </p>
<p>The first risk plays a role in the over-punishment of Black Americans because in many cases, police, prosecutors, judges and juries confuse their unjustified negative feelings based on race for appropriate feelings of resentment based on a defendant having committed a crime. Thus, if they have negative attitudes toward a defendant because of race, a <a href="https://doi.org/10.2307/20439061">jury may find guilt where there is none, or over-punish</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/426509/original/file-20211014-23-13lcy4d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An artist's sketch of Dzhokhar Tsarnaev." src="https://images.theconversation.com/files/426509/original/file-20211014-23-13lcy4d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/426509/original/file-20211014-23-13lcy4d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/426509/original/file-20211014-23-13lcy4d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/426509/original/file-20211014-23-13lcy4d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/426509/original/file-20211014-23-13lcy4d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/426509/original/file-20211014-23-13lcy4d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/426509/original/file-20211014-23-13lcy4d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A sketch of Dzhokhar Tsarnaev in Boston during the Marathon bombing trial.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-artists-sketch-of-dzhokhar-tsarnaev-hangs-on-the-wall-news-photo/465760460?adppopup=true">Lane Turner/The Boston Globe via Getty Images</a>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>Social scientists talk about this phenomenon when <a href="https://doi.org/10.2307/20439061">they explain that implicit biases or unconscious negative attitudes</a> affect criminal justice outcomes, particularly for Black Americans. Implicit biases are at least one factor in why Black Americans are given <a href="https://harvardcrcl.org/wp-content/uploads/sites/10/2020/07/07.30.2020-Phillips-Marceau-For-Website.pdf">harsher sentences than white criminals</a> who commit similar crimes. </p>
<p>The second risk is more subtle. The message of punishment is that the criminal’s act is bad and so is the criminal. Seeing members of a marginalized racial or ethnic group punished could reinforce prejudicial negative attitudes. </p>
<p>Evidence of this second risk was recently demonstrated in a troubling study: The more white Americans learn that Black Americans are over-represented in the criminal justice system, the more they <a href="https://doi.org/10.1177/0963721418763931">may seek increasingly punitive policies</a>. Authors of the study linked this to <a href="https://psycnet.apa.org/record/2004-21339-010">pervasive implicit biases</a> in which white Americans unconsciously associate Black faces with crime. Thus, punishing Black Americans strengthens an unjustifiable association between Blackness and criminality. This has a profound effect on the lives of all Black Americans, whether they ever commit a crime or not.</p>
<h2>The risk of implicit biases</h2>
<p>Tsarnaev is not Black. But he is Chechen, a majority-Muslim ethnic group from Eastern Europe.</p>
<p>In the United States, <a href="https://scholarship.law.georgetown.edu/facpub/1691">studies indicate</a> that half to two-thirds of non-Muslim Americans hold anti-Muslim implicit biases. Legal scholar <a href="https://law.wayne.edu/profile/au0111">Khaled Beydoun</a> <a href="https://www.ucpress.edu/book/9780520305533/american-islamophobia">explains</a> that federal anti-terrorism projects since 9/11 have treated Muslims – and those assumed, based on their ethnicity, to be Muslim – as suspected terrorists based only on their perceived religion. </p>
<p>The growing implicit biases against Muslims and aggressive policing of Muslim communities already put American Muslims at risk of similar treatment in the criminal legal system as Black Americans. </p>
<p>These risks do not mean that the death penalty is never warranted or that it is not warranted in this case. But it does mean that policymakers and the public should take these risks into account when making laws and setting policies about punishing.</p><img src="https://counter.theconversation.com/content/169711/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amelia Wirts received funding from the Clough Center for the Study of Constitutional Democracy at Boston College from 2012-2017 and 2018-2020. She has been a member of the National Lawyers Guild since 2015. She worked as an unpaid intern for Lawyers For Civil Rights in 2015. In the summer of 2016, she was the Napolitano Summer Fellow at the Massachusetts Commission Against Discrimination, funded by the Massachusetts Bar Association.
She worked as an intern for a federal judge in the Federal Court for the District of Massachusetts in Boston, where Tsarnaev's initial trial was held, approximately 60 days after the trial ended. She did not intern for the judge who presided over Tsarnaev's trial. </span></em></p>Punishment for crimes allows a society to express its values, but a theorist of criminal law and punishment argues it could also reinforce prejudicial stereotypes about racial and ethnic groups.Amelia Wirts, Assistant Professor of Philosophy, University of WashingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1675912021-09-08T20:03:56Z2021-09-08T20:03:56ZOn 50th anniversary of Attica uprising, 4 essential reads on prisoners’ rights today<figure><img src="https://images.theconversation.com/files/420095/original/file-20210908-26-nvlelu.jpg?ixlib=rb-1.1.0&rect=26%2C58%2C2965%2C1992&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some of the demands by prisoners in 1971's Attica rebellion still resonate today.</span> </figcaption></figure><p>On Sept. 9, 1971, nearly 1,300 incarcerated men at Attica Correctional Facility in New York state <a href="https://www.wbfo.org/heritage-moments/2018-09-10/heritage-moments-the-attica-prison-uprising-43-dead-and-a-four-decade-cover-up">took control of the facility</a>, prompting a <a href="https://www.nytimes.com/1996/09/10/nyregion/the-lessons-of-attica-25-years-later.html">multiday standoff</a> with authorities that ended in a massacre.</p>
<p>The incident resulted in the deaths of 43 people, many of them inmates, and marked an important moment in the <a href="https://www.aclu.org/blog/prisoners-rights/attica-every-prison-and-every-prison-attica">prisoners’ rights movement</a> in the United States. The men behind what has variously been described as a “riot,” “rebellion” and “uprising” at Attica <a href="https://doi.org/10.1177/0306396811414338">were demanding improvements</a> to medical and food supplies behind bars, greater visitation rights and an end to insanitary conditions and guard brutality.</p>
<p>The uprising took place before the <a href="https://www.upi.com/Archives/1991/05/16/US-prison-population-exploded-in-1980s/4744674366400/#:%7E:text=But%20during%20the%201980s%2C%20the,at%20the%20end%20of%201990.">huge increase in America’s prison population</a> in the 1980s and 1990s. But as The Conversation’s authors have explained in recent months, many of the grievances raised by the Attica prisoners – health care, visitation rights, brutality and neglect – remain a concern for today’s incarcerated men and women. Here are four essential reads:</p>
<h2>Behind bars and suffering from dementia</h2>
<p>America’s prisons are facing a growing aging population. Research shows that by 2030, almost <a href="https://pdfs.semanticscholar.org/30aa/ac3ae03558fe6b9d92598de4cafe85fafdf9.pdf">one-third of all incarcerated people</a> will be over the age of 55. Rachel Lopez, <a href="https://drexel.edu/law/faculty/fulltime_fac/Rachel%20Lopez/#:%7E:text=Rachel%20L%C3%B3pez%20is%20an%20Associate,at%20the%20Harvard%20Kennedy%20School.">a law professor at Drexel University</a> and former commissioner on Pennsylvania’s Sentencing Commission, explains how the aging population will <a href="https://theconversation.com/prisoners-in-us-suffering-dementia-may-hit-200000-within-the-next-decade-many-wont-even-know-why-they-are-behind-bars-138236">place an additional burden on authorities</a>: Research has shown that by the end of this decade, up to <a href="https://www.ncchc.org/filebin/images/Website_PDFs/24-2.pdf">210,000 elderly prisoners</a> will have dementia. The cost of their medical upkeep will fall on taxpayers.</p>
<figure class="align-center ">
<img alt="A prisoner sips water as he stands in a room at the hospice wing of California Medical Facility." src="https://images.theconversation.com/files/420097/original/file-20210908-27-c7wk4g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/420097/original/file-20210908-27-c7wk4g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/420097/original/file-20210908-27-c7wk4g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/420097/original/file-20210908-27-c7wk4g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/420097/original/file-20210908-27-c7wk4g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/420097/original/file-20210908-27-c7wk4g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/420097/original/file-20210908-27-c7wk4g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A prisoner on the hospice wing of California Medical Facility.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/john-gillis-age-73-a-hospice-care-patient-diagnosed-with-news-photo/457461857?adppopup=true">Andrew Burton/Getty Images</a></span>
</figcaption>
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<p>Moreover, keeping someone with dementia behind bars is, Lopez argues, an affront to human dignity and may even violate the United States Constitution’s prohibition on cruel and unusual punishment.</p>
<p>“Forcing those who cannot understand their punishment to live the remainder of their days behind bars appears to be exactly the type of excessive and cruel punishment that the Eighth Amendment was meant to protect against,” Lopez writes.</p>
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Read more:
<a href="https://theconversation.com/prisoners-in-us-suffering-dementia-may-hit-200-000-within-the-next-decade-many-wont-even-know-why-they-are-behind-bars-138236">Prisoners in US suffering dementia may hit 200,000 within the next decade – many won't even know why they are behind bars</a>
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<h2>Prisoners with intellectual disabilities</h2>
<p>The elderly are not the only vulnerable population being kept behind bars. In March 2021, the Bureau of Justice Statistics <a href="https://bjs.ojp.gov/content/pub/pdf/drpspi16st.pdf">revealed that around a quarter</a> of the 24,848 incarcerated people it surveyed across 364 prisons had an intellectual, developmental or cognitive disability. Across the entire prison and jail network, that would equate to some 550,000 people. Jennifer Sarrett <a href="http://catalog.college.emory.edu/department-program/faculty.php?YToxOntzOjI6ImlkIjtzOjM6Ijc5MyI7fQ==">of Emory University</a> conducted in-depth interviews with several adults within the criminal justice system who have intellectual and developmental disabilities.</p>
<p><iframe id="aZQHB" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/aZQHB/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>“Prisoners with these disabilities are at greater risk of serving longer, harder sentences,” <a href="https://theconversation.com/us-prisons-hold-more-than-550-000-people-with-intellectual-disabilities-they-face-exploitation-harsh-treatment-158407">Sarrett notes</a>.</p>
<p>They also run the <a href="https://doi.org/10.1080/14789949.2015.1062994">risk of exploitation and abuse</a> – both from other incarcerated people and from prison staff. As one man explained to Sarrett, officers look to see who only watches TV and never reads, marking them out for exploitation: “Some of the corrections officers … they’ll slide up onto the disability boy and use him, you know, making him feel like ‘This is my dog. This is my boy right here. Come and do this for me.’”</p>
<p>Meanwhile, needing extra time to process instructions – particularly in high-stress situations – can be interpreted as obstinacy by prison officers. In turn this can lead to prisoners with intellectual disabilities being written up for disciplinary issues, which can result in time added to a person’s sentence, removal of certain privileges or solitary confinement. A 2018 study found that over 4,000 people with serious mental health concerns were <a href="https://www.nyaprs.org/e-news-bulletins/2018/11/30/study-over-4-000-prisoners-w-serious-mental-illness-are-held-in-solitary-confinement">being held in solitary confinement</a> in the U.S.</p>
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Read more:
<a href="https://theconversation.com/us-prisons-hold-more-than-550-000-people-with-intellectual-disabilities-they-face-exploitation-harsh-treatment-158407">US prisons hold more than 550,000 people with intellectual disabilities – they face exploitation, harsh treatment</a>
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<h2>Guard brutality still an issue</h2>
<p>Between 2012 and 2016, <a href="https://bjs.ojp.gov/content/pub/pdf/msfp0116st.pdf">128 state and federal prisoners died as a result of homicide or accident</a>, according to the Bureau of Justice Statistics. Those were the most recent figures available to Heather Schoenfeld of Boston University when she <a href="https://theconversation.com/people-are-dying-in-us-prisons-and-not-just-from-covid-19-141358">wrote an article for The Conversation</a> in July 2020 looking at violence by corrections officers. Another problem with the data other than it not being up to date: The agency does not distinguish in the figures between incidents involving prison staff and prisoner-on-prisoner violence.</p>
<p>“In the absence of detailed and reliable data, what we do have are accounts of sadistic and retaliatory violence by prison guards against people in prison,” Schoenfeld writes.</p>
<p>She describes an “ongoing humanitarian crisis” in U.S. prisons of excessive force by corrections officers that has only been made worse by understaffing and overcrowding. “Studies show that officers who <a href="https://doi.org/10.1017/CBO9781139649681">work in chaotic and hostile work environments</a> are more likely to adopt an ‘us vs. them’ mentality and resort to retaliatory violence,” she writes.</p>
<p>She adds: “Similar to excessive police force, brutality by prison officers is part of systemic state violence against people of color, and Black people specifically.”</p>
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Read more:
<a href="https://theconversation.com/people-are-dying-in-us-prisons-and-not-just-from-covid-19-141358">People are dying in US prisons, and not just from COVID-19</a>
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<h2>COVID-19 and visitation rights</h2>
<p>Brutality and neglect are not the only things killing America’s incarcerated population. Prisoners have been particularly vulnerable during the coronavirus pandemic. Incarcerated men and women living in cramped indoor conditions with only basic sanitation and poor ventilation are at <a href="https://eji.org/news/covid-19s-impact-on-people-in-prison/">higher risk of infection and death</a> from the virus.</p>
<p>They have also face being isolated from their families for extended periods as a result of lockdown measures. <a href="https://hcap.utsa.edu/directory/alexander-testa-ph-d/">Alexander Testa</a> and <a href="https://hcap.utsa.edu/directory/chantal-fahmy-ph-d/">Chantal Fahmy</a> at The University of Texas at San Antonio <a href="https://theconversation.com/no-visits-and-barely-any-calls-pandemic-makes-separation-even-scarier-for-people-with-a-family-member-in-prison-158592">looked at the effect this has had</a> on the prisoners’ families.</p>
<p>The two scholars surveyed 500 people with a loved one serving time behind bars in Texas during the summer of 2020. What they found was a high level of concern.</p>
<p>“My son has been locked in a cell with temperatures over 100 degrees for up to 23-plus hours a day for weeks on end now due to COVID,” one 74-year-old woman told Testa and Fahmy. “I fear he will either perish from the conditions or somehow take his own life.”</p>
<p>The concern was not only of the risk of infection but also the sudden removal of visitation rights.</p>
<p>During the pandemic Texas prisons <a href="https://www.wfaa.com/article/news/health/coronavirus/coronavirus-texas/269-38e0b2c8-3cdc-4afd-acfb-5ab12ca39566">severely limited all types of contact</a> with the outside world – including video and phone calls. Visitation was barred completely on March 13, 2020, and only resumed a year later.</p>
<p>Reflecting on the this, alongside other grievances including “deplorable” living conditions “and lack of medical and dental care,” one mother of an incarcerated person commented: “We don’t incarcerate, we torture.”</p>
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Read more:
<a href="https://theconversation.com/no-visits-and-barely-any-calls-pandemic-makes-separation-even-scarier-for-people-with-a-family-member-in-prison-158592">No visits and barely any calls – pandemic makes separation even scarier for people with a family member in prison</a>
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The Attica uprising marked a milestone in the prisoners’ rights movement. Many of the grievances aired in 1971 are still relevant to today’s incarcerated population.Matt Williams, Senior International EditorLicensed as Creative Commons – attribution, no derivatives.