Ethical Misconduct in the Courts and Responses Lecture Notes

Ethical Misconduct in the Courts and Responses ● Chapter Objectives 1. Detail the types of misconduct that have been associated with defense attorneys, prosecutors, and judges. 2. Explain the reasons why such misconduct occurs. 3. Describe the Innocence Projects, how many individuals have been found to be wrongly imprisoned, and why. 4. Discuss some proposals to improve the justice system and reduce ethical misconduct. ● Types of Ethical Misconduct ● Brady Violations ○ The most common charge leveled against prosecutors, failure to disclose evidence, stems from a duty to reveal exculpatory evidence to the defense. ○ There can be a Brady violation/legal error even if the prosecutor truly did not know or remember the evidence existed. ● Voir Dire ○ Voir Dire (French – “to speak the truth”) ■ Preliminary examination of a prospective juror to determine his/her qualifications to serve as a juror ○ Excusing Jurors Through Voir Dire ■ After questioning, either side can request that the witness be excused (Strike) through 1 of 2 types of challenges: 1. Challenge for cause 2. Peremptory challenges ● Challenge for Cause ○ Used if a potential juror’s responses suggest that person cannot fairly judge the case. ○ Unlimited number ■ The judge rules on the challenge and if sustained, the juror is excused ○ 2 types of Challenges for Cause ■ Principal Challenge ● Strike potential jurors because they have some relationship to one of the “principals” or participants in the case ■ Fact-partial Challenge ● Strike potential jurors because the subject matter of the dispute presents issues on which the potential juror is biased, prejudiced, or predisposed to a particular outcome because of their belief system or experiences ● Peremptory Challenge ○ Limited number of challenges ○ Originally, used to correct the mistake of a judge for failing to strike a juror for cause (still used this way) ○ Now, primarily used by attorneys to exclude people believed to be hostile to their case ■ i.e., based on hunch, prejudice, knowledge of psychology, ○ Don’t have to state a reason, can eliminate a potential the lawyer feels won’t vote for his or her side ● Voir Dire (cont.) ○ Attorneys used to have unrestricted freedom to exercise peremptory challenges ■ Batson v. Kentucky (1986) ■ SCt restricted the ability of prosecutors who used peremptory challenges to keep African Americans off the jury in any case involving an African American defendant ■ If prosecutor uses peremptory challenge solely on race, must explain his/her actions and may be ordered to change tactics ○ Georgia v. McCollum (1992) ■ Defense is also prohibited from excluding jurors based on race ○ J.E.B. Petitioner v. Alabama (1994) ■ SCt extended Batson to gender ○ People v. Garcia (2000) – ■ CA Appellate Court extends prohibit exclusion of jurors based solely on sexual orientation. (US Supreme Court had not decided this issue yet) ● Suborning Perjury and Jailhouse Informants ○ Model Rule 3.3(a) forbids an attorney from knowingly allowing false evidence to be admitted; ■ Some argue that “knowingly” is too strict a standard because prosecutors have argued that they did not “know” that the evidence was false. ■ Some argue that an objective negligence standard should be used instead. ○ When a prosecution witness perjures himself or herself, the prosecutor has an affirmative duty to bring it to the attention of the court. ● Misconduct Involving Expert Witnesses ○ Misconduct also occurs when prosecutors intentionally use scientific evidence that they know to be false. ○ Prosecutors may bolster a witness’s credentials or allow him or her to make gratuitous and unsupported claims on the witness stand ■ Such as to state “unequivocally” that the fingerprint, hair, or lip print was the defendant’s. ○ Prosecutors have had experts suppress information that was favorable to the defense and not put it in their report or not conduct tests that might be helpful to the defense. ● Prosecutorial Misconduct ○ What happens when prosecutors lose sight of their mission? ○ Chicago Tribune investigation ■ Between 1963-2002, 381defendants had homicide convictions thrown out because of prosecutors concealed exculpatory evidence or presented evidence they knew to be false. ■ 67 sentenced to death ■ 30 of the 67 served between 5-26 years before convictions reversed ■ Types of misconduct ● Concealing exculpatory evidence ● Misleading jurors as to the meaning of evidence ● Suppressing expert witness reports that were exculpatory ● Withholding evidence that pointed to the culpability of their witness as the real killer instead of the person they were prosecuting. ○ The Veritas Initiative, commissioned by the Northern California Innocence Project to examine cases between 1997-2009 in Calif. (updated in 2011) ○ From 1997- 2010: ■ 800 misconduct cases ■ 202 resulted in judicial response (overturning a conviction, declaring a mistrial) ■ 107 prosecutors had more than 1 misconduct cases (sometimes up to 6 times) ○ Kirchmeier et al., (2009) identified 4 types of misconduct 1. Withholding exculpatory evidence 2. Misusing pretrial publicity 3. Using false evidence in court 4. Using peremptory challenges to exclude jurors (Batson v Kentucky, 1986) ● Judicial Misconduct ○ Judicial misconduct is rare, but does occur. ○ Neutrality is questioned when judges voice strong opinions on issues or cases. ○ A judge may recuse him/herself if he/she has a vested interest in the issue or one of the parties involved. ○ Often the mere appearance of impropriety is sufficient to warrant recusal. ○ Lack of courtroom decorum could, in extreme cases, represent judicial misconduct. ● Biased Decisions ○ Judges, for the most part, are like police officers and prosecutors. ○ Misconduct is alleged when judges do not recuse themselves and/or act in ways that give some preferential treatment. ○ Attorneys and judges are prohibited from discussing a case outside the presence of the other attorney. ○ In some cases neutrality is questioned when judges voice strong opinions on issues or cases. ○ Talking to the media was rare, but now some judges have decided it is acceptable to express their views, take a stand, and act as advocate. ○ Some question judges’ motives in allowing cameras in the courtroom. ● Other Misconduct ○ Judges, for the most part, are like police officers and prosecutors. ■ Failing to inform defendants of their rights, coercing guilty pleas, exceeding sentencing authority, exceeding bail authority, denying full and fair hearings or trials, abusing the criminal contempt power, ignoring probable cause requirements, denying defendants’ rights, and penalizing defendants for exercising their rights. ■ Judges have a duty to conclude judicial processing with reasonable punctuality. ● Factors in Wrongful Convictions ○ False convictions have occurred due to: ■ Mistaken eyewitness testimony ■ Perjury by informants ■ Police and prosecutorial misconduct ■ False confessions ■ “Junk science” ■ Ineffective assistance of counsel ■ Racial bias ■ “Confirmatory bias” ● Mistaken Eyewitness Testimony ○ Memory not as accurate as some believe. ○ In some cases improper police or prosecutor behavior influenced witnesses to identify the wrong person. Police officers may repeatedly ask victims if they were sure that the suspect was not the person, or using “show-ups” that present only one person to the witness instead of a line-up. ○ Supreme Court rejected argument that judicial review of eyewitness testimony was necessary. ● False Confessions ○ False confessions are so powerful that juries have convicted individuals even when there is exculpatory DNA evidence introduced at trial. ● Racial Bias ○ A prevalent factor in false convictions is a more subtle form of racism. ○ Tend to prejudge the guilt of the accused, especially if they are black men. ○ Pervasive stereotypical belief that all defendants are guilty, and a disproportionate number of defendants are black. ○ Distorts decision making of prosecutors who may sift and use evidence in a way that will support these predetermined beliefs. ○ Also noted is a higher rate of error in cross-racial identification, stereotyping ○ Lack of resources among minority defendants ● Confirmatory Bias ○ Confirmatory bias is when someone ignores evidence that is contrary to what they believe. ■ Prosecutors may ignore evidence that refutes their theory ■ May lead to the noble cause corruption. ■ Prosecutors bend and even break the rules when they are sure the defendant is guilty. ● Defense Attorney Misconduct ○ Ineffective Counsel ■ One of the most often cited reasons for false convictions ■ Legal standard for what constitutes ineffective counsel is set quite high ○ State appellate court said that if a lawyer wasn’t sleeping during a crucial part of the trial, it wasn’t ineffective counsel. (Cockrell v Burndine, 2002) ○ Standard: To prove ineffective assistance, a defendant must show ■ (1) that their trial lawyer's performance fell below an "objective standard of reasonableness" and ■ (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668 (1984). ● Explanations for Misconduct of Judges ○ The immunity of judges insulates them from the effects of their decisions. ○ Difficult for attorneys to challenge judges’ actions ○ Some judges may believe they are invulnerable. ○ Judges have immense power. ○ State judicial commissions rarely sanction judges, and voters tend to be fairly oblivious to the reputation of judges. ● Explanations of Prosecutorial Misconduct ○ The presence of confirmatory bias (human tendency to seek to confirm rather than disconfirm), ○ Selective information processing (only recognizing evidence to fit one’s theory), ○ Belief perseverance (believing one’s original theory of the case despite evidence to the contrary), and ○ Avoidance of cognitive dissonance (adjusting beliefs to maintain existing self-perceptions). ● Solutions to Misconduct ● Compensation ○ The Texas Civil Practice and Remedies Code requires that, in order to be compensated, a former inmate ○ Must have received a pardon of innocence by the governor or have been granted relief by the court “on the basis of actual innocence,” the letter states. ● Examples of Compensation Statutes ○ 30 states, Federal Gov’t and DC have compensation statutes ○ The federal government provides for $50,000 for each year spent in prison, and $100,000 for each year spent on death row. ○ California's statute provides a maximum of $100 per day spent in prison after a conviction. ○ Florida allows for $50,000 annually with a maximum of only $2 million, regardless of time served. However, Florida also provides 120 hours of free tuition at a college or university. ○ This does not mean that people who were wrongfully convicted in these states cannot seek any compensation. Exonerees could still sue in state court for wrongful conviction or lobby the legislature for a private compensation bill. ● “Pa. needs a law to compensate the wrongfully convicted: Another view”... ○ Consider the far greater burden for an individual who knew throughout their incarceration that they were innocent and should never have been in prison. ○ Worse still, exonorees face a cruel paradox: while released offenders are eligible for vocational and job training, released wrongfully convicted men and women are ineligible for these benefits. ○ Yes, you read it correctly: someone who had been wrongfully convicted does not qualify for the housing assistance, health care, and job training offered released offenders. ● Responding to Misconduct ○ ABA offers formal and informal opinions when charges of impropriety have been made. ○ State bar association can sanction offending attorneys in private or in public. ○ Only 3 percent of investigations by state disciplinary committees result in public sanctions. ○ Only 1 percent of investigations end in disbarment. ● Better Training, Better Supervision ○ Prosecutors do not get sufficient training on Brady obligations. ○ Require prosecutors to work with Innocence Commission. ○ There should also be clear and public policies in each prosecutor’s office concerning the use of jailhouse informants and turning over exculpatory material (Kirchmeier et al., 2009). ● Other Suggestions ○ Conviction Integrity Units ■ Innocence Project affiliates are growing. ○ Mandatory DNA Testing ■ DNA has been the vehicle by which many innocent prisoners have obtained their release from prison. ■ Some states have mandated DNA testing of old cases. ○ Labs and Enhanced Due-Process Procedures ■ More than half of all labs in the country report directly to a law enforcement organization. ■ Bias is subtle (cognitive bias). ■ Increase accuracy of identifications (e.g., sequential photo arrays, double-blind examiners). ■ Eliminate use of jailhouse informants because of the high probability that they are lying in order to gain some benefit. The Ethics of Punishment and Corrections ● Chapter objectives 1. Provide the definitions of punishment and treatment and their rationales. 2. Describe how the ethical frameworks justify punishment. 3. Describe the ethical rationales for and against capital punishment. 4. Describe the ethical codes for correctional officers, treatment professionals, and probation and parole officers. 5. Explain how occupational subcultures affect adherence to professional ethics codes. ● Five elements of punishment 1. Two people involved, the punisher and the one being punished. 2. The punisher inflicts harm on the one being punished. 3. The punisher is authorized by law to inflict the punishment. 4. The one being punished has been judged to be in violation of a criminal law. 5. The inflicted harm is meted out specifically as punishment for that violation of criminal law. ● Treatment ○ In correctional terminology, treatment is anything used to induce behavioral change. ○ The goals of treatment are: ■ Elimination of dysfunctional or deviant behavior ■ Encouragement of productive, normal behavior ● Evan Miller ● Rationales for punishment and corrections ○ The social contract provides the rationale for punishment and corrections. ■ We avoid social chaos by giving the state the power to control us. ■ The state is limited in the amount of control it can exert over individuals. ■ For consistency with the social contract, the state should exert its power only to protect. ■ Any further interventions with civil liberties are warranted. ● Theories of punishment ○ Retribution ○ Prevention ■ Deterrence ● Special ● General ■ Rehabilitation ■ Incapacitation ■ Restorative ● Ethical justifications for corrections ○ Utilitarianism: treatment, incapacitation, deterrence (we punish to benefit the majority) ○ Ethical formalism: retribution (we punish because the offender deserves it) ○ Ethics of care: restorative justice (we punish only if it is necessary to meet the needs of all involved) ○ Egoism? ● Punishments ○ The American criminal justice system has adopted prison as a standard form of punishment. ○ Imprisonment does not carry the physical pains of flogging or mutilation. ○ Imprisonment is painful because it involves: ■ banishment, ■ condemnation, ■ separation from loved ones, ■ deprivation of freedom, and ■ an assault on one's self-esteem. ○ Prisons are extremely expensive. ● Cruel and unusual punishment (How do we determine it?) ○ Unusual (by frequency): Punishments that are rarely used become unusual. ○ Evolving standards of decency: Punishments acceptable in the past (flogging) may not be acceptable today. ○ Shock the conscience: A punishment is cruel and unusual if it shocks the public conscience. ○ Excessive or disproportionate: Any punishment that is disproportionately administered or excessive to its purpose is considered wrong. ○ Unnecessary: The purpose of punishment is to deter crime; only an amount necessary to do so should be administered. ● Solitary confinement ● Dr. Terry Kupers (professor of psychiatry at the Wright Institute in Berkeley California): ○ “Human beings require two very basic things: social interaction and meaningful activity. ○ By doing things we learn who we are and we learn our worth as a person. ○ The two things solitary confinement does is make people solitary and idle.” ● Does solitary confinement make inmates crazy? ○ 1950s, University of Wisconsin psychologist Harry Harlow placed rhesus monkeys inside a custom-designed solitary chamber nicknamed “the pit of despair.” ○ 1951 researchers at McGill University ○ Stuart Grassian (Harvard): ■ Roughly a third of solitary inmates were “actively psychotic and/or acutely suicidal.” ■ Grassian has since concluded that solitary can cause a specific psychiatric syndrome, characterized by hallucinations; panic attacks; overt paranoia; diminished impulse control; hypersensitivity to external stimuli; and difficulties with thinking, concentration and memory. Some inmates lose the ability to maintain a state of alertness, while others develop crippling obsessions. ● Impact of solitary confinement ○ Calif Prison: 1999 to 2004 prisoners in solitary confinement accounted for nearly half of all suicides. ○ A 1995 study of the federal prison system found that 63 percent of suicides occurred among inmates locked in “special housing status,” such as solitary or in psychiatric seclusion cells. ○ Even when prisoners are let out of solitary confinement, Grassian says, they are so overwhelmed by stimulus that they become incapable of tolerating their new environment and have trouble integrating back into the general population. Their brain waves jump and they become highly reactive. ● States that have reformed solitary confinement ● Solitary confinement reform act (S. 3432) ○ Would establish the first set of federal limits on the implementation of solitary confinement, the use of which has typically been characterized by a lack of any meaningful oversight, accountability, or governing regulations. ○ Solitary confinement for “the briefest term” and under “the least restrictive conditions practicable.” It would provide individuals in isolation with a minimum of 4 hours outside of solitary confinement per day, and with the opportunity to participate in “meaningful programming opportunities” and interactions with other prisoners, visitors, and clergy “as much as practicable.” ○ Would be to forbid the placement of minors and those who suffer from a serious mental illness in solitary, and would protect from solitary confinement pregnant and recently pregnant women, people with physical disabilities, and LGBT people who have been placed in isolation confinement for no reason other than their LGBT status. In an effort to reduce recidivism, subsection (b) would also establish new processes to facilitate transitions out of solitary confinement, both to the prison general population as well as to the free world. ○ Individuals who are placed in isolation receive mental health evaluations within their first 6 hours of solitary confinement and every 14 days thereafter. ○ Notably, the bill would also address the notorious lack of transparency surrounding solitary confinement in the United States. The bill would establish “a ground-breaking new mechanism for ensuring transparency and accountability within the BOP by creating an Office of the Civil Rights Ombudsman.” This new authority, would be vested with the authority for “investigating civil rights complaints by prisoners and noncompliance with solitary confinement policies and practices as well as identifying areas where policy and practice can be improved.” ○ The Ombudsman would also issue annual reports to Congress on the state of solitary confinement in the United States, including summaries of complaints and policy reform recommendations to improve conditions of confinement and reduce the use of solitary confinement altogether. ● Correctional officers ● Formal ethics for correctional professionals ○ The American Correctional Association’s (ACA) Code of Ethics ■ Outlines formal ethics for correctional officers and other correctional personnel. ○ Common across all ethics codes: ■ Integrity ■ Respect for and protection of individual rights ■ Service to the public ■ Importance and sanctity of the law ■ Prohibition against exploiting professional authority for personal gain ● American jail association ○ The preamble states that the jail officer should: ■ Avoid questionable behavior that will bring disrepute to the agency ■ Mandates that officers keep the institution secure, work with everyone fairly, maintain a positive demeanor, ■ Report what should be reported ■ Manage inmates even-handedly without personal involvement ■ Take advantage of training opportunities ■ Community with individuals outside the agency in a way that does not bring discredit ■ Contribute to a positive environment, and support professional activities. ● Correctional subculture ○ Why? ○ Correctional officers typically form a homogeneous social group ○ They have a uniquely stressful work environment ○ They participate in a basically closed social system ● The correctional officer subculture ○ ○ ○ ○ ○ May consider inmates, superiors, and society in general as “the enemy” Accepts use of force as a routine job element Shows a tendency to redefine job roles to meet minimum requirements only Shows a willingness to use deceit to cover up wrongdoing by staff Or it this pluralistic ignorance? ■ The idea that a few outspoken and visible members do not reflect the silent majority’s views Discretion and Dilemmas in Corrections ● Chapter objectives 1. Describe the role conflict of correctional officers. 2. List and describe some ethical issues for correctional officers. 3. Describe the different challenges that face jail officers as compared to correctional officers in prisons. 4. Explain the role conflict of treatment professionals and provide examples. 5. Describe the ethical issues of probation and parole officers. ● Correctional officers ○ Correctional officers (COs) are similar to police officers (uniform = authority). ○ Sometimes correctional professionals have the power to do things that they don’t have the legal authority to do. ○ It is impossible to effectively depend on the authority of the uniform to get tasks accomplished (must earn respect and authority from personal reputation). ● Discretion ○ Correctional officers have a full range of control, including denial of liberty and application of physical force. ○ Discretionary powers include charging an inmate with a disciplinary infraction or a verbal reprimand. ○ Disciplinary committees also exercise discretion when making a decision to punish an inmate for an infraction. ○ Treatment professionals have discretion in writing parole reports, making decisions on classification. ● Prisoner rights movement ← 1960’s 1970’s 1980’s 1990’s 2000s → ○ Changing goals in the 1970s and 1980s created role conflict and ambiguity for the correctional officer. ○ Other factors include unionization, professionalism, and diversity. ○ For prisoners, the shift away from prisoner rights began around the time the country declared War on Drugs. The emphasis now is on due deference to prisons. ○ For most claims of violation of prisoner rights, the prison must only prove an rational relationship between the prison policy/procedure and the correctional goal of safety and security ● A new era of corrections? ○ Supreme Court ordered California to release prisoners if they could not provide a constitutionally mandated level of medical care. ○ Alleged deficiencies included: ■ Inadequate medical screening of incoming prisoners ■ Delays in or failure to provide access to medical care including specialist care ■ Untimely responses to medical emergencies ■ The interference of custodial staff with the provision of medical care ■ The failure to recruit and retain sufficient numbers of competent medical staff ● Brown v Plata (2011) – US Supreme Ct held that California’s prison system violated the 8th Amendment. ○ Designed to hold 85,000 but held approx. 156,000 ○ Ordered to reduce population by 46,000 ● Findings: ○ 1 preventable or possibly preventable death every 5-6 days ○ prison medical staff had to "operate out of converted storage rooms, closets, bathrooms, shower rooms, and visiting centers. ○ 20% of physician positions were vacant ○ “The Pelican Bay supermax—ostensibly designed to hold prisoners with severe behavioral problems—operated for its first two years without a full-time psychiatrist. ○ packed gymnasiums with double and triple bunks. ● In one such makeshift dormitory, a prisoner was beaten to death. No one on the prison staff noticed for several hours. ○ “Prisoners retain the essence of human dignity inherent in all persons,” Kennedy wrote. “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” ● Use of force ○ Physical force is often necessary in prison situations. ○ Prior to the 1980s, overt physical force was used routinely in U.S. prisons. ■ “Tune-ups” ■ Tucker telephone ■ Hudson v. McMillian (1992) ● Serious injury not required for 8th amendment violation ● If the injury was purely gratuitous ● What is necessary force? ○ Today, the incidence of excessive force is less common, but it is still used in some institutions. ○ Inmates have more to fear from each other than from correctional officers. ● Relationships with inmates ○ Both guards and inmates prefer to live in peace. ○ Both feel they must take sides when conflict occurs. ○ Reciprocity: officers become dependent on inmates for completion of important tasks. ○ In return, officers may overlook inmate infractions and allow a degree of favoritism. ● Relationships with inmates ○ Officers have the power to make life difficult for inmates they do not like. ○ If officers become personally involved (e.g., sexually), their professionalism is compromised. ○ An alliance sometimes forms between guards and inmates that is not unlike foreman-employee relationships. ○ Officers insist that “you can be friendly with inmates, but you can never trust them.” ○ Mature officers learn to live with this inconsistency. ○ Most recent PREA survey found 79% of all instances of staff sexual misconduct were female officers having sex with males ○ Mid-1990s, states began to make even consensual sex with inmates illegal. ○ Prison Rape Elimination Act (PREA) 2003 ○ Major Provisions: ■ Adherence to a zero-tolerance standard for the incidence of inmate sexual assault and rape; ■ Development of standards for detection, prevention, reduction, and punishment of prison rape; ■ Collection and dissemination of information on the incidence of prison rape; and ■ Award of grant funds to help state and local governments implement the purposes of the Act. ● Jail officers ○ In many respects, local jail officers have more difficult responsibilities than state prison officers. ○ Jail population is transitory and often unstable. ○ Offenders may come into jail intoxicated, suffer from undiagnosed diseases or psychiatric conditions, or be suicidal. ○ Visitation is more frequent, and family issues are more problematic. ○ The constant activity and chaotic environment of a jail often create unique ethical dilemmas. ● Treatment Staff ○ The professional goal of all treatment specialists is to help the client. ○ This goal may be fundamentally inconsistent with the punitive prison/jail environment. ○ A dilemma of treatment programs is deciding who is to participate. ● Psychologists in the correctional field adhere to 2 ethical codes: ○ APA’s Ethical Principals of Psychologists and Code of Conduct ○ American Association for Correctional and Forensic Psychologists ● Standard 3.11 of the APA code requires psychologists providing services through other organizations (prisons) are to inform their clients about: ○ The nature and objectives of the services ○ Intended recipients ○ Which of the individuals are clients ○ The relationship the psychologist with have with each person and the organization ○ The probable uses of services provided and information obtained and who will have access to the information ○ Limits of confidentiality ● Community corrections ○ Has a more positive and helpful image than institutional corrections ○ Ethical dilemmas for probation and parole officers revolve around promoting rehabilitation for the client and security for the community. ● What is the difference between probation and parole? ○ Probation ■ Refers to adult offenders whom courts place on supervision in the community through a probation agency, generally in lieu of incarceration. ■ However, some jurisdictions do sentence probationers to a combined short-term incarceration sentence immediately followed by probation, which is referred to as a split sentence. ○ Parole ■ Refers to criminal offenders who are conditionally released from prison to serve the remaining portion of their sentence in the community. ■ Prisoners may be released to parole either by a parole board decision (discretionary release/discretionary parole) or according to provisions of a statute (mandatory release/mandatory parole). ● Caseload supervision ○ Discretion exists not only at the recommendation-to-release stage but also throughout supervision. ○ Decision to file a violation report and make a recommendation ○ Personal relationships of any type–romantic, platonic, or financial—are simply not appropriate. ● Parole officers ○ Supervision of parole officers is stronger than probation officers. The parole officer usually manages a caseload of older and seasoned offenders. ■ 67.8% of released inmates were charged with at least one serious crime within three years. ■ Studies indicate that the rate of recidivism is worse than it was twenty years ago. ■ Men, blacks, and young people are the most likely to recidivate. ■ Those who participate in property crimes are most likely to return to criminal behavior. ● New policy: swift and certain ○ That idea of “swift and certain” punishment, in the form of very brief jail stays for minor violators ○ Goal is to reduce the prison population by a thousand inmates by 2020, and reinvest a portion of the $108 million saved to reduce recidivism and increase public safety. ○ $37 million on probation – but $200 million on incarcerating ■ Automatically paroling people serving short sentences after they completed their minimum sentence, as long as they behaved well. ■ Excising the red tape of applying for parole will get them released five months earlier on average. ■ Expanding the use of risk-assessment tools to determine bail or conditions of release pretrial. ● Effectiveness: ○ Delaware last year reported no improvement over existing probation practices. And a national demonstration in four different states, sponsored by the NIJ and the Bureau of Justice Assistance: ■ found no effect on new arrests and, in some cases, an increased rate of probation revocation. ○ Chester County: ■ Those in the program must submit to random drug tests two or three times a week. If they admit using drugs, they spend two days in jail right away. If they deny use and test positive, they get five days in jail. ■ That’s compared with a previous average of nine months in jail for probation violations. ■ So far, the probation revocation rate has fallen from 59 % to 40 %, and the positive drug test rate is down from 41 % to 7.5%.