Chapter 9: Social Policy in Criminal Justice Systems

Moral Panic was defined by Cohen (1972) and remains the salient standard:

Societies appear to be subject, every now and then, to periods of moral panic. A condition, episode, person, or groups of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are managed by editor, bishops, politicians, and other right thinking people; socially accredited experts pronounce their diagnoses and solutions; ways of coping are evolved or (more often) restored to; condition then disappears, submerges or deteriorates and become more visible (p.9).

In other words, the key to this definition social problems such as crack cocaine may be linked to violent crime that in turn are socially constructed and perhaps overblown myths. The social contractors as described above are those that are referred to as social engineers or social entrepreneurs that craft a need for harsher penalties, thus increasing the Prison Industrial Complex, thereby increasing investors’ financial gains. This thought is teased out further on in this section.

Roberts & Indermaur (2005) assert that “It is now widely accepted that the naming labeling and discussion of vilified behaviors play a vital role in the definition and sense of community. In this vein, the focus on ‘moral panics’ outlined by Cohen (1972) placed a strategic and perilous focus on the way issues are highlighted and used by those in authority for social purposes. The media value of a single incident or short lived incident outweighs the actual value of the offense but in the long run and generally will increase the reporting of incidence thus creating its own importance or crime wave (Roberts & Indermaur, 2005; Marion & Oliver, 2012:2006).

An increased use of empirical data could decrease sensationalism over reality. This requires informing the public of what they are actually afraid of or more so what they need to be afraid of. Therefore in addition to the Media’s Code of Ethics (link attached) https://www.spj.org/ethicscode.asp which should be better publicized with the addition of actual bonafide data. Current data may be obtained from annual government reports such as the Uniform Crime Reports (UCR) that may or may not provide a contextual optic. Not everyone may understand the statistical data presented. As an illustration a UCR report may show that crime went up by 20%. On the surface this appears inexcusable and someone needs to take responsibility. The fact may be that crime went up by five incidents, which may account for the 20% increase. What type of crimes are represented in the increase, where did it occur in the reporting locale, and what might be social events that are associated with the increase. The ‘fear of crime’ is more realistically aligned with the public’s ‘concern for crime’ (Marion & Oliver, 2012; 2006). The media has (through its own Code) an obligation to represent the facts in a fair and honest manner. However in fairness to the media, they can only report what is offered to them. Media, in any approach (print news, social, television, or video just to provide a few), is generally in business to make money, rather than for public good alone. The news media is at the center of this discussion, however the social media has an increased and significant role in factual distribution of information. One only has to recall the 2016 political debacle to justify this statement.

As a means of policy to protect the credibility, bureaucracies, both public and private, responsible for Criminal Justice should maintain a “Fact Checker”. The existence of such a unit is for the sole purpose of combating the ‘Fear of Crime’ over the ‘Concern for Crime’ at a local, state and national level. Specifically, in today’s high speed electronic world, crime data is available daily if not hourly and therefore the incident based moral panic should and could be averted. Of course, unlike the serial killer or child abduction or actual gang war activity that may be impacting a community will deserve the strictest immediate attention and cooperation between law enforcement and the news media.

The proposed policy to establish a fact checker unit, the panel should consist of CJS members and media members paid for by their respective organization and publicly funded in part (staff personnel, office space, and daily expense of research) in return for a more balanced report. The ultimate goal of this policy is that hopefully it could prevent scarce resources spent on needless ghost chases. This will require collaboration of interest groups, media and CJS bureaucrats to educate the public in a public relations campaign sharing and fact checking data (Marion & Oliver, 2012:2006).

As a means to address moral panic has been increased penalties for law breakers. America has seen legislation such as mandatory sentencing, zero tolerance, truth in sentencing, and habitual offender. All of which have provided fodder for prison systems. Perhaps, those in control saw this as a means to provide numbers for private prisons or to bolster an already growing economy lodged within the Prison Industry. Have prisons now replaced some industry as an economic engine for the benefit of those at the top of a food chain and at the expense of the less fortunate at the opposite end of the chain?

Social/Public Policy

The material in this section discusses the ways policy is influenced by social, political, economic, legal, and ideological forces. It should not be a secret that each of these forces plays some role in policy formation. Marion & Oliver, (2006; 2012) assert that the formulation of policy is influenced by social, political, economic, legal and ideological factors. The reader should pay close attention to these criteria in preparation for future evaluations. According to Marion & Oliver (2006: 2012) “The end result is crime policy that is rarely about reducing crime but policy that plays well with the public and the media” (p.23). None the less formulation of policy is the choice of those in charge either by position or authority, may be the inclination of fear mongering rather than factual contextual reporting.

Social influence may be derived through polls, financial support (politician’s life blood), lobbying groups, and advocates that not only provide rhetoric for the argument but also for financial support and is taken seriously in the creation of policy. Political influence regarding crime comes down to who would vote against a crime bill, but also the personal ideology of the politician plays a role in policy development (conservative or liberal point of view). Furthermore it is critical that the politician exhibits to the constituent that he or she is listening to their concerns. The government official that is at the bidding of the public listens to those that financially support her/him. The economic influence may create a false sense of complacency on two fronts.

First, how is the policy implemented by the bureaucracy delegated for implementation? That is the governmental entity charged to fully implement public policy may be at odds with the policy itself. Especially if a new administration wishes to use the funding stream to satisfy the new agenda and as long as it remains in the spirt of law then it is generally accepted. The second issue is the funding stream may be elusive, ambiguous, and can again be diverted or reduced.

An example is the COPS program partially funding police officers for three years and then the municipality must begin to pay for the officer. The concept is flawed in that most municipalities do not have funding mechanisms to pay for the additional officers and the strings attached by the COPS Office could make it difficult for a municipality to enter into the program. An organization or municipality that is financially troubled to begin with (generally the areas in most need of additional officers), may apply under an exception that would normally require a portion of funding for the officers up front, and the exception could waive the upfront contribution. Ethically, a law enforcement administrator should bring to the attention of the COPS Office that the municipality does not expect a significant financial improvement at the conclusion of the grant period. However, the funding source may be narrowly focused on getting 50,000 new cops on the street and by-passes the notice. An additional consideration of economics is what and by whom reaps financial gain from stricter laws and more cops on the street to enforce the laws. Could one easily assume the previous discussion may be a building block for the beforehand Prison Industrial Complex?

The legal influence is critical as the Supreme Court may issue decisions on the constitutionality of a policy becoming a political actor in the policy process. A contemporary issue of Immigration ban (2017) on certain religions or populations was considered by the courts and overturned in the newly issued Presidential Executive Order. In the case of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the court ruled Congress could not restrict the amount of money that may be contributed to a candidate. To do otherwise is a violation of the 1^st Amendment prohibiting speech. Can the two previous public policies mentioned have and influence on who may be the Commander in Chief?

Finally the ideological influences may determine whether an issue makes it to the front door, let alone going through the door of the policy makers; without ideological differences there exists no issue. The ideology of the policy maker is critical, but so is the ideology of the bureaucracy charged with its implementation (Marion & Oliver, 2006; 2012).

Helco (1994) asserts “that there are three building blocks on which our political systems shaped and formed policy, including our criminal justice system. These three building blocks are: ideas, interests, and institutions” (cited in Marion & Oliver, 2012, p. 56). In short the ideas relate the meaning of interests; interests instruct institutions on what to do; and the institutions dictate how the idea is to survive (Marion & Oliver, 2012). The reality of policy making is constructed in Helco’s theory as politics are everywhere and everything.

Sentencing Policies

Consider the following three areas that have contemporary impacts on the CJ system. They are plea bargaining, truth-in-sentencing, and mandatory sentencing. This section offers a brief policy proposal on plea bargaining. The reader should consider their own policy for the remaining two that will offer guidelines to enhance the equity, efficiency, and efficacy of this policy. Truth in sentencing and mandatory sentencing is discussed further on in the material.

Plea bargaining is a main stay of the American criminal justice process, as indicated by Marion & Oliver (2012:2006) “95% felony convictions in state courts are the result of guilty pleas” (p. 343). There is nothing on the horizon to make anyone think it is going to change. The sheer volume of criminal cases in our courts daily would grind the system to a halt if plea bargaining was not permissive. One item that makes a local judge happy (Criminal and Civil) is a reduced or clean docket. There is no secret to the fact that trials are expensive and time consuming. Every citizen in the United States is entitled to their day in court, to be confronted by witnesses against them, right to a defense, and right to speedy trial. Certainly this looks great printed in the American Constitution and defined by the high court. Albeit nice, it remains impractical. To satisfy burgeoning court dockets, the courts have fashioned plea bargaining policy. The high court has permitted a pathway to justify plea bargaining. Hearing judges may aid in the plea process with a gentle nudge through mild pressure placed on participants (Marion & Oliver, 2012:2006).

I would not change the process per se but would offer some minor tweaking. First all petty offenses of a non-violent nature would meet with administrative law judges and receive an opportunity to be heard and a civil compromise would be levied in the finding of guilt. An Administrative Law Judge (ALJ) is a legal scholar (retired judge or lawyer) with authority of a sitting criminal judge in a less formal setting (relaxed rules of evidence) not requiring a bogged down system with lawyers, as the ALJ will be the guardian of rights for defense and prosecution. A civil compromise is a finding that does not label the defendant or provide them with a criminal record, much like the traffic court system (much like a driving record there is a recording of the event but not criminal). Second, if the defendant is habitual then the system is no longer available to this person. This system is based on the ability of the accused and accuser to negotiate justice. This will be particularly effective for bad checks, code violations, traffic, public intoxication, underage drinking etc.

The actual plea bargaining process will be limited to misdemeanors and felonies of less substance (non-violent matters or identity theft or larcenies less than $5,000) for the first time offender. If there exists a specialized court for a specific offense such as DWI Court, Drug Court, Mental Health Court, or Domestic Court, then that becomes the court of original jurisdiction. Pleas will be categorized by type of offense, prior criminal history and victim impact statement. The ALJ retains the authority to bump an offender to a higher court.

Spohn (2000) contends in his study “The finding of this review suggest that the disproportionate number of racial minorities confined in our Nation’s jails and prisons cannot be attributed solely to racially neutral efforts to control crime and protect society. Although it is irrefutable that the primary determinants of sentence decisions are the seriousness of the offense and the offender’s prior criminal record, race/ethnicity and other legally irrelevant offender characteristics also play a role”(p. 481). Due to recidivism rate of offenders then the second offense will often require serving full sentence of first offense then plea must contain rehab criteria before release, after release and relocation from existing environment similar to witness protection. Does the ethical issue of racial disparity interact with the plea bargaining process?

Incarceration and Release

The offender must be readied for return to society through programs aiding in offender growth and development which is important but equally critical is the rethinking of the entire system (Petersilia, 2000; & Travis, 2000; & Marion & Oliver, 2012:2006). Family members are impacted by the offender as is the victim and the community and they too must be made whole in a restorative justice approach (Travis, 2000). However for this post I have chosen a separate field of discussion and that is the family financial support system critical in prisoner reentry.

The behavior of offender offspring(s) is often emulated and is a consideration of the reentry program (Marion & Oliver, 2012:2006). Children’s development may be negatively impacted via low income because it prevents parents from purchasing essential as well as socio critical materials, experiences or services as indicated by economic theory. Most offenders return with little or no money or savings (Petersilia, 2000). Reisig, Holtfreter & Morash (2002) contend “Generally, social theorists posit that a variety of positive outcomes is associated with healthy social networks…According to contemporary social theory, kin and non-kin social networks provide social resources that can produce a variety of desirable outcomes including employment, access to training and education, as well as instrumental, social, and emotional support” (p.167-168).

Ryan, Kalil, & Leininger, (2009) findings add to a long tradition of research illustrating the importance of social support, broadly defined, to the economic survival and emotional well-being of low-income. Specifically, the research demonstrates a significant and substantively important association between the availability of a private safety net and children’s internalizing symptoms and positive behaviors. Their work found the nature and strength of these associations across the two data sets in-spite of difference between operation of private safety nets in Fragile Families (which emphasized material support) and National support.

Ryan et al. (2009) find:

A positive association between private safety nets and children’s socioemotional well-being, but a different finding could have emerged. Qualitative literature on the dynamics of social support suggests that because mothers often receive informal support only on the condition of reciprocity, help from mothers sometimes can induce as much stress as it alleviates (Antonucci & Jackson, 1990; Howard, 2006, cited by Ryan et al., 2009) both because mothers worry about repaying their debts (financial or otherwise) and because the exchanges can complicate interpersonal relations. In these ways, mothers’ private safety nets could undermine their emotional well-being and consequently their parenting or expose children to negative relationships, either of which could disrupt children’s socioemotional development” (p. 294).

These studies indicate that rehabilitation or treatment has been the narrow scope of reentry qualifiers as the authors intimate it is the economic safety net that must also be taken into consideration. It does not assume a free pass but would require outcomes such as the resource is available for periods of training and job seeking. The funding is allocated directly to housing or grocery or medical staff (to name a few). One may ask at this juncture why safety nets are discussed (specifically economic nets). The fact is that they are an unintended consequence of offenders incarcerated and may or may not be appreciated in the over-all calculation of the cost of crime. A second consideration in addressing safety nets is the cost of Domestic Violence in America and hidden costs.

Juveniles in the Justice System

All crime is deviant but not all deviant behavior is criminal. Noted sociologist Howard Becker (1963) argues, “The deviant is one to whom that label has successfully been applied, deviant behavior is behavior people so label” (p. 9). A Crime is a violation of the more repugnant rules and enacted by those currently holding social and political power. Offenders are subject to sanctions by state authority, social stigma, and loss of status (Siegel, 2008).

The ethical and political implications through policy development to detect and prevent crime also are pervasive in legislative enactments such as: Three Strikes you’re out, Mandatory/Minimum sentencing, Faith in Sentencing, or rehabilitative/reformative programs endorsed by Positivist designed to rejuvenate or reform an offender discouraging him/her from recidivism (Lilly, Cullen & Bell, 2007, Siegel, 2008). The conservative approach tends to favor longer sentencing while the liberal view centers on treatment and rehabilitation (Marion & Oliver, 2012:2006). There is similarities between the Military Industrial Complex and the Prison Industrial Complex and the attached link provides information critical to this discussion. https://pointsforponder.files.wordpress.com/2012/10/gilmore-nd2.pdf

The Supreme Court through a series of decision culminating in the Roper v. Simmons (S.Ct., 205 WL 464890) backed the Missouri’s Supreme Court ruling that the execution of a person less than 18 years old was a violation of the Eighth Amendment of the U.S. Constitution. Further a litany of court cases evolving since the 1960’s have provided safeguards provided an adult and the juvenile offender (Marion & Oliver, 2012:2006).

At the heart of this discussion are two differing theories of crime, first Gottfredson and Hirschi (1990) self-control theory which is “for all intents and purposes, the individual-level cause of crime” (cited by Cauffman, Steinberg & Piquero, 2005, p.232). Those with low self-control lack diligence, tenacity, and persistence, find a lack of determination to forego gratification, resolve matters in more physical rather than verbal fashion, usually do not possess or value higher education nor have cognitive abilities requisite to skills or training and lack interest in preparation for long-term pursuits and are more self-indulgent (Cauffman, Steinberg & Piquero, 2005), Second, T.E. Moffitt, (1993), provides an interesting area of study specifically with two variances of delinquency, echoing the imitation aspect in the first distinction of behavior, adolescence-limited (AL) which is antisocial mimicking, gaining instruction through peers beginning with adolescence and terminating with adulthood. The second distinction of behavior is the life-course persistent (LCP) delinquency which deals with hereditary psychiatric disorders that have worsened with age. A third group emerged from this study, albeit small, yet significant is referred to as abstainers that refrain from antisocial behavior all together (Cauffman et al., 2005).

As asserted by Cauffman et al., (2005) “Gottfredson and Hirschi claim that a single factor, low self-control, when coupled with opportunity for antisocial activity, underlies antisocial behavior over the life course” (p. 142). They further draw a distinction between theories of Gottfredson and Hirschi, self-control and Moffitt’s AL and LCP theory claiming “that although self-control is an important individual-level characteristic which should be incorporated into models of criminal activity. It is not the only crime generating factor (especially among serious offenders). More specifically, biological and psychological/personality factors should also be directly and independently related to offending, above and beyond the impact of poor self-control” (p.139).

Moffitt, Caspi, Harrington & Milne, (2002) provides a longitudinal study relative to AL and LCP consisting of 1,037 children (52% males and 48% females) which suggests that LCP are few and persistent and AL is temporary and more common and near normative behavior. The LCP antisocial behavior began early on in life and the social environment and inherited or acquired neuropsychological severely manifests further behavioral problems. The transaction of poor family environment, poor relations with people in the form of peers and teachers emerge creating a deeper infinity for more aggressive behavior of which the inverse is purported for the AL delinquent.

The evolutionary path for understanding criminal behavior has often been misjudged, misguided or misplaced by political/partisan ideologies or through policies that have developed as a result of the era or its influences (Akers & Sellers, 2009, Akers, 1990, Lilly, Cullen & Bell, 2007, and Walsh, 2000). Society has provided numerous explanations of crime, cause and effect and to date there is no silver bullet or singular causation of criminal behavior that survives. Scholars will agree that crime does not have a specific cause in the brain nor is there a single explanation for criminal behavior (Rowe, 2002, Siegel, 2008, Fagin, 2007, Bartol & Bartol, 2008)

Regardless of society’s attempts to prevent juvenile crime through the use of a juvenile justice system developed for rehabilitation and treatment of an offender, juveniles sometimes commit very serious offenses. Their act demands prompt and even handed justice taking into account all available variables (Marion & Oliver, 2012: 2006). A justice system is in place to safeguard the rights of the juvenile offender and in order to transfer a case from the juvenile section to adult criminal courts generally requires a separate hearing to determine the merits. With this established there still resides the controversy of how much punishment and for how long. It has been suggested that with the newer technology perhaps the brain studies may become more useful in the criminal justice field and particularly in the juvenile sector (Dolan & Anderson, 2002).

At this juncture it is critical to think over the influences of policy on crime such as money, politics, ideology, social influences and media. The lack of funding for support of families with an incarcerated member or a domestic violence situation or the children involved. Take a moment and reflect on ethical issues that pertain. What questions may arise at this juncture?

Sentencing Disparities: Crack v. Powder Cocaine

The following material examines sentencing disparities. The sentencing disparities around crack and powder cocaine, pointing out the differences and similarities between sentencing practices used by the federal government and the State of Pennsylvania. What factor(s) might account for the disparities observed in the federal sentencing guidelines?

Crack cocaine and powder cocaine remains cocaine, so why is such a disparity in sentencing and why such a disparate impact on minorities? Researchers will often examine the environmental impacts that create disillusion with current laws and debilitation of neighborhoods. Based on material presented thus far could it simply be that those with political and economic means (major political contributors) lobby sufficiently to get tough on crime laws that will support the Prison Industrial Complex?

As asserted by Tonry (1994) “First, conservative Republicans in national elections “played the race card” by using anticrime slogans (remember Willie Horton?) as a way to appeal to anti-Black sentiments of White voters. Second, conservative politicians of both parties promoted and voted for harsh crime control and drug policies that exacerbated existing racial disparities” (p. 475). The police are the first line of defense against crime and the effectiveness of the police are generally measured by reported crime data in comparison to arrest data; however there is no real measure of overall success (Skogan, 1999).

More recently researchers have been driven by observations and the impact of quality of life enforcement or an ecological approach, still there remains the perception that drug dealing and drug proliferation are in direct proportion to the debilitation of neighborhoods, which holds some truths but in reality is a part of the problem not the whole problem. Indicated by other English speaking countries, they have disproven assertions that harsher punishments significantly increase public safety (Tonry, 1994).

Although treatment and school based prevention programs have demonstrated greater promise to intercede the drug epidemic, America has remained with drug control policies that are a major cause of racial disparity in prisons (Tonry, 1994). Pennsylvania and New York are similarly situated based on personal experience of the author. However, Pennsylvania is the subject material used in this comparison.

In the U.S. today, more than 2.3 million adults are in American jails or prisons and as the Pew Center on the States has reported, that amounts to more than one in every 100 adults in an American jail or prison nationwide. While dangerous criminals should be behind bars, high incarceration rates cost taxpayers $50 billion per year (Pew Center, 2008). In Pennsylvania, over 87,000 adults are behind bars, meaning that one in every 111 Pennsylvania adults are in prison. Incarcerating one of these prisoners costs $98 per day or over $35,000 a year. State corrections costs alone in Pennsylvania exceed $1.8 billion annually (Pew Center, 2009).

Tonry (1994) maintains that “There is no valid policy justification for the harsh drug and crime control polices of the “Reagan and Bush administrations…The justification is entirely political” (p.488). However it is argued that it is sometimes unfair to blame national Republican policy; political leaders have followed the will of the people; and to ignore that crime may be interracial and to ignore it would have an adverse impact on the Black victims. Non-the-less, crime control effectiveness should not be politically motivated and disregard flexible public objectives that can be measured and evaluated in order to alter course for the best interest of those we serve.

Finally, this chapter afforded pathways to examine decision making relative to influences on public policy. The War on Drugs is posed in a fashion that alludes that drugs are the target of the enforcement and not the offender. The insidious crack cocaine epidemic has been associated with crimes of violence, which is accurate, but it remains that cocaine is cocaine in any form. The inner-city populations have sensed disparate impacts resulting in increased incarceration of minorities and deterioration of neighborhood quality of life issues. In the end one can argue that the get tough on crime policy and increased prison populations were resultant of deviant behaviors rising to the level of crime. One can also conclude that the public policies devised by government may have been influenced by campaign contributions for the benefit of the Prison Industry Complex. At the end of the day, the reader must decipher and equate ethics and ethical or non-ethical influences portrayed as a benefit to society or for only the profiteering segment of society. What is of interest is where ethical decision making in day to day CJ practices become tainted by public policy involving influences that may or may not be ethically founded.

References

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