Archive for January, 2012

When Incarceration Shot Up and Crime Plummeted

Tuesday, January 24th, 2012

The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.


Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was (more…)

Statistics and the Serial Killer

Monday, January 16th, 2012

Andrei Chikatilo was serial killer who murdered at least 56 young women and children starting in 1978 until his capture in 1990. The details are as bad as one might expect, and apparently the murders and mutilations were how he achieved sexual release. His killings seemed unpredictable to investigators at the time, and even in retrospect there appears to be no clear pattern.

Now, however, UCLA mathematicians Mikhail Simkin and Vwani Roychowdhury have published a paper where they see not only a pattern, but one that is meaningful to those who might want to stop other serial killers. In their paper, “Stochastic Modeling of a Serial Killer,” published a couple of days ago, Simkin and Roychowdhury discovered that the killings fit a pattern known as a “power law distribution.” One of many kinds of statistical distribution (the bell curve being another), power law distributions are often found for out-of-the-ordinary events like earthquakes, great wealth, website popularity and the like.

First, they looked at a timeline of his killings. They saw apparently random periods of inactivity. Each time Chikatilo started killing again, however, the next murder would come soon after. And the one after that even sooner. And so on and so on until the next period of no killing.

The study doesn’t take account of the reasons for two of the longer pauses — Chikatilo’s first arrest and detention on suspicion of being the killer, and the period where the media started reporting on the investigation — but the reasons aren’t important. What’s important is being able to make some kind of sense out of the seemingly random events.

What they noticed was that, when these ever-increasing murders were plotted on a logarithmic scale, they came out in almost a straight line — indicating the possibility that a power law might be at work here. What’s more than that, they noticed that the curve’s exponent of 1.4 was pretty darn close to the 1.5 found for the power curve of epileptic seizures. What if (they wondered) the killings fit a neurological pattern? What if, like epileptic seizures, psychotic events like these killings came about when an unusually large number of neurons in the brain started firing together?

So they plugged in some givens of what is known about how neurons work, modeled on how epilepsy works. They made the model a little more realistic — seizures come unbidden when the conditions are met, but killers probably need some time to plan once their brain is ready for the next attack. Then they ran a simulation.

The simulated probabilities for the length of time between murders tracked the real-life data almost perfectly.

In other words, if you know when the last murder took place, you can calculate the probability that another killing will happen today. And the more time has passed since the last one, the less likely another will happen.


Fascinating stuff, but so what? The so what is that (more…)

Correct, but Wrong: SCOTUS on Unreliable Eyewitness Identification

Thursday, January 12th, 2012

In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.


No, what Perry could have argued for is either (more…)

Still here

Wednesday, January 11th, 2012

We haven’t gone anywhere.

Well, actually we did. We spent a couple of weeks visiting family for Christmas and New Year’s. And then took a week getting back on top of work. In the meantime, a dozen great post topics have come to mind only to be forgotten (or, if we happened to have a pencil handy, rapidly jotted down for later rejection).

Still, we’ve managed to put out some more installments in our illustrated guide to criminal law. Part 8 on actus reus just went up, and you can click the link at the right to see the whole series. Next up is attempt, then we’ll cover strict liability, liability for the acts of others, defenses, where the law comes from, examples of crimes, the rule of law, terrorism… and then we’ll get to the procedural, constitutional and policy stuff. Enjoy!

But we’re not neglecting the blog. We’ll be back shortly.