Social Problems and Social Control in Criminal Justice 9781955055536

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Social Problems and Social Control in Criminal Justice

Social Problems and Social Control in Criminal Justice Stacy Burns and Mark Peyrot

b o u l d e r l o n d o n

Published in the United States of America in 2022 by Lynne Rienner Publishers, Inc. 1800 30th Street, Suite 314, Boulder, Colorado 80301 www.rienner.com

and in the United Kingdom by Lynne Rienner Publishers, Inc. Gray’s Inn House, 127 Clerkenwell Road, London EC1 5DB www.eurospanbookstore.com/rienner

© 2022 by Lynne Rienner Publishers, Inc. All rights reserved

Library of Congress Cataloging-in-Publication Data Names: Burns, Stacy Lee, author. | Peyrot, Mark, author. Title: Social problems and social control in criminal justice / Stacy Burns, Mark Peyrot. Description: Boulder, Colorado : Lynne Rienner Publishers, Inc., 2022. | Includes bibliographical references and index. | Summary: “Explores government efforts to address social problems in the context of the criminal justice system”— Provided by publisher. Identifiers: LCCN 2021061812 (print) | LCCN 2021061813 (ebook) | ISBN 9781955055215 (hardcover) | ISBN 9781955055536 (ebook) Subjects: LCSH: Criminal justice, Administration of—Social aspects. | Social problems. | Criminal justice, Administration of—Political aspects. | Social control. Classification: LCC HV7419 .B88 2022 (print) | LCC HV7419 (ebook) | DDC 364—dc23/eng/20220204 LC record available at https://lccn.loc.gov/2021061812 LC ebook record available at https://lccn.loc.gov/2021061813

British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library.

Printed and bound in the United States of America

The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5 4 3 2 1

Contents

1 Theorizing Social Control in Criminal Justice

Part 1

Increasing Social Control

2 Hate Crime and Domestic Terrorism

3 Gun Violence and Mass Shootings

4 Sexual Assault in Higher Education

Part 2

Legitimizing Social Control

5 Racial Bias and Violence in Policing

6 Racial Bias and White Privilege in Sentencing 7 Demonization of Sex Offenders

Part 3

Reducing Social Control

8 Reversing Mass Incarceration

9 Extending Problem-Solving Courts

10 Reforming Marijuana Prohibition

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125 149 169 183

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Contents

Part 4

Conclusion

11 Possible Futures of Social Control

References Index About the Book

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223 251 265

1 Theorizing Social Control in Criminal Justice

modern nation-states. Public policy establishes standards of appropriate and inappropriate behavior and creates social institutions charged with interpreting, applying, and enforcing those standards. In particular, governments identify certain conditions and behaviors as social problems and establish institutions to prevent, mitigate, and/or remedy those problems. Thus, the development of social control institutions is largely driven by conditions identified by “moral entrepreneurs” (Becker 1963) as social problems in need of formal regulation. Although the vast majority of sociology departments (at least in the United States) offer courses in social problems, this area generally has not been regarded as being at the core of sociology as a discipline—that role has instead been accorded to social inequality, especially race, class, gender, and more recently, sexualities. As a result, various substantive fields in sociology have developed problem-specific analyses of social problems (e.g., social inequality, deviance, criminal justice or criminology, and women’s and gender studies). Such theory and research have drawn upon concepts from within a specific field to identify the prevalence, causes, and impact of particular problematic social conditions, rather than to formulate a theory of social problems that would be applicable generally across substantive fields and problems. By contrast, this book is based on an integrated conceptual framework of institutional constructionism (described below) that specifies the processes by which social problems and social control develop over time, leading to different patterns of development. The framework identifies a series of

Social control is one of the primary functions of government in

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stages through which a social problem and its remedies may evolve (Peyrot 1984; Peyrot and Burns 2010, 2018). At each stage, there are several alternative developmental paths, and earlier events both constrain and are modified by subsequent events. An innovative component of this framework is that there can be multiple cycles of development, with an earlier remedial strategy falling out of favor and becoming defined as a part of the problem rather than a solution. This can lead to the development of a new remedial strategy through a series of stages paralleling those composing the initial cycle of development (see the stages and cycles described below). The approach we take in this book grows out of the insights of previous social problem scholars, and we next describe this history and consider how our approach fits into and adds to that scholarship. During the mid-twentieth century, sociologists started to develop a general theoretical model that could be applied to any social problem. Fuller and Myers (1941a, 1941b) formulated a natural history model consisting of several stages through which social problems must progress: awareness, policy determination, and reform. The model represented a shift away from a problem-focused approach in which social conditions in a field of inquiry were defined as problems by social scientists and explained by their fieldspecific theories. This new approach focused on the processes through which social conditions and behaviors become defined and responded to as social problems—that is, social problem construction. The next major advance in this theoretical approach was by Blumer (1971), who proposed a model with five stages: emergence, legitimation, mobilization, policymaking, and policy implementation. In addition to greater specificity, this approach emphasized that the development of a social problem involved agency and was not a “natural” result of collective action, or an inevitable, mechanistic progression across stages. Thus, there is contingency in the developmental process: potential problems may not be identified as such, and the interplay of social actors and contextual factors may lead social problem development in unanticipated directions. In the latter quarter of the twentieth century, there was a watershed moment in social problem theory with the 1977 publication of Spector and Kitsuse’s book Constructing Social Problems as well as Emerson and Messinger’s article on the micro-politics of trouble. Spector and Kitsuse formulated a four-stage model of social problem development: claimsmaking, claim legitimation/institutionalization, alternative claims-making, and alternative claim legitimation/institutionalization. The first two stages incorporated the five stages of Blumer’s model, and the latter two stages went beyond the stages formulated in earlier models. The Spector/Kitsuse model

Theoretical Models of Social Problem Construction

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incorporated the insights that social problems are not simply social movements and could have lives beyond the original social movement(s) that created them (e.g., social problem remedies are seldom perceived to completely resolve the social problems they target, hence leading to a “second generation” of social problem development). Another insight was that social problems and their remedies may evolve over several stages—remedies may be escalated and/or de-escalated, remedial philosophies may shift, and new institutions may develop or be charged with controlling the problem. Not only could Subsequent iterations of the social problem development process take different directions, but the previous remedial approaches could come to be defined as part of the problem. Although Emerson and Messinger’s micro-politics of trouble approach had more of a micro/meso focus than the more macro approach of other social problem scholars, it detailed how earlier social problem developments could inform later developments (e.g., failure of a remedial program based on specific problem definitions calls into question the assumptions on which it was based). Social control institutions built to remedy or mitigate social problems organize shared ideas of “what the trouble is” and “what should be done about it.” Social problems and their remedies are contingent, negotiated, and reflexively related. In this sense, “the trouble is progressively elaborated, analyzed and specified as to type and cause . . . [and] the effort to find and implement a remedy is critical to processes of organizing, identifying and consolidating the trouble” (Emerson and Messinger 1977, p. 122). The remedy that is implemented as a (potential) solution to the problem thus affects the very definition of the problem it addresses and may itself create new (and possibly unanticipated) problems and consequences, which must be addressed with further policy modification, or even scrapping the original program entirely. The publication of Constructing Social Problems (Spector and Kitsuse 1977) led to two types of social problem scholarship (Woolgar and Pawluch 1985): (1) the analysis of claims-making activities without reference to objective social conditions (“strict” or pure constructionism), and (2) the integration of claims-making activities or social definition, along with traditional objective data on the existence and severity of the problem (“contextual” or hybrid constructionism). The former was more common in journal articles based on primary research and the latter dominated in social problems textbooks based on secondary research. Woolgar and Pawluch noted that there was a strong tendency, even among avowed strict constructionists, to impose the scholars’ own definitions of problems, rather than achieving intellectual purity in analyzing only the claims-making of social actors. Several sociologists have responded to this critique, but now it generally is conceded that there is no way to do pure constructionism (Ibarra and Adorjan 2018). Nevertheless, the Woolgar/Pawluch

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critique stimulated many researchers to pursue theoretical purity, thereby operationalizing social problem “construction” as social problem “definition,” with an emphasis on the creation and promulgation of cultural images and representation. Over the last several decades, we have developed a conceptual framework for describing the development and implementation of social problem control policies (Burns 1996, 2008, 2018; Burns and Peyrot 2003, 2008, 2010; Peyrot 1982, 1984, 1985, 1991; Peyrot and Burns 2001, 2010, 2018). In this chapter we describe the conceptual framework that guides our discussion of the several social problems analyzed in this book and provide an overview of how we will address these social problems. In what follows, we compare and contrast our approach to the two key publications that have guided our past and current work. In an article appearing before the Woolgar/Pawluch critique that most constructionist analyses incorporated scholars’ own definitions of what constitutes a “real” problem, Peyrot (1984) formulated an alternative approach, which we now term institutional constructionism. This approach proposes to study the construction and operation of social problem control institutions, rather than the definitions of social problems themselves. To be sure, social problem control institutions incorporate definitions of the social problems they regulate, but these are much more than subjective definitions. They are practical organizational features that shape everyday institutional operations and decisionmaking—that is, they are real structures with real consequences. Moreover, their development is driven by factors beyond claims-making, including legislation, court cases and lawsuits, bureaucratic regulations, budgets, executive department guidance memoranda, executive orders and consent decrees, and so on. Our institutional constructionist model is derived from the stage model in Constructing Social Problems (1977) and loosely follows the Spector/ Kitsuse recommendation for further theory development through grounded theory methodology (Glaser and Strauss 1967). One of us (Peyrot 1984) applied the four-stage Spector/Kitsuse model to a study of the development of the social control institution for substance abuse in the United States during the twentieth century. This study confirmed the four stages of Spector and Kitsuse’s model of social problem development, but, following Blumer (1971), Peyrot redefined Spector/Kitsuse’s stage 1 (claims-making) as mobilization agitation and their stage 2 (claim legitimation/institutionalization) as policy formation. Again following Blumer (1971), Peyrot identified two additional stages during Spector/Kitsuse’s stage 2: policy implementation and policy modification. The two additional stages incorporate Emerson

An Institutional Theory of Social Problem Development

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and Messinger’s insight that implementation transforms policy into actual structural and procedural reality. The policy modification stage distinguishes between changing the definition of the problem (Spector/Kitsuse’s stage 3) and maintaining the original definition of the problem but modifying the social control program. In fact, social control agents rarely abandon a program at the first indication that the planned solution as initially implemented has not been entirely successful. Rather, policy modification intensifies efforts (e.g., increasing sanctions, enforcement), as well as making pragmatic changes to increase effectiveness and efficiency of the social control program (Peyrot 1984). This stage may last longer than the earlier ones, in part because of the tendency toward institutional inertia (e.g., entrenched bureaucrats, financial interests of corporate vendors, etc.), much like the “punctuated equilibrium” model of evolution in biology in which long periods of relative stability are interspersed with short periods of rapid change (Eldredge and Gould 1972). Another major modification of the Spector/Kitsuse model was that rather than defining implementation of a second alternative social control approach (the “second generation”) as the limit of the model’s scope, our model of institutional constructionism allows for multiple cycles of social problem development. For example, Peyrot’s research on substance abuse during the 1960s and 1970s identified two generations: (1) an initial punitive criminal justice approach of prohibition, and (2) a subsequent treatment/rehabilitation approach (i.e., probation before judgment, diversion, counseling, etc.). However, Peyrot did not claim that the latter would be the final stage in the development of substance-abuse social control. Indeed, since that time there have been two additional generations: a “war on drugs” (a punitive criminal justice approach) followed by the return to a treatment/rehabilitation approach (e.g., drug courts and problem-solving courts, the latter of which is discussed in Chapter 9). Some reform agitation also occurred among Trump administration officials regarding a return to a punitive criminal justice approach (see Chapter 10 on reforming marijuana prohibition). Figure 1.1 provides a visual representation of our theoretical framework.1 One of the major advances arising from the Spector/Kitsuse model of generations (via Emerson and Messinger’s insights) is the possibility that a second generation (or any next generation in our cyclical model) entails not only a rejection of the previous remedial approach but also a characterization of the previous remedial approach as part of the problem, perhaps exacerbating the original social problem and/or generating new problems (i.e., adverse consequences, such as social inequities—see Chapters 5 and 6 on racial bias and White privilege in policing and sentencing). At a broader level, this framework allows us to study the pattern of succession in remedial approaches. In the original study of substance abuse, a pendulum effect was observed, with a reversal of the punitive criminal justice approach.

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Subsequent developments in the social control of substance abuse have shown a continued back-and-forth alternation between the punitive criminal justice approach and the treatment/rehabilitation approach. However, it would be premature to propose that this is an inevitable pattern; indeed, our initial research identified institutional accretion as a developmental dynamic that mitigates the possibility of a simple alternation between these two states of social control. Institutional accretion reflects the fact that new social problem remedies do not simply replace earlier approaches, but rather are grafted onto the existing social problem control institutions. For example, the first iteration of the treatment/rehabilitation approach to substance abuse did not replace the punitive criminal justice approach; users were still arrested, charged, and appeared in court, but the court gained additional possible dispositions, including counseling with or without probation (Peyrot 1984), although in the initial iteration the treatment system was only loosely coupled with the courts (Peyrot 1991). When the treatment/rehabilitation approach returned following relaxation of the war on drugs, the second iteration occurred within the institutional context of a criminal justice system that had already incorporated treatment. Therefore, the second iteration of the treatment/rehabilitation approach was centered on drug courts, which specialized in substance abuse and utilized court-supervised treatment to achieve tighter integration of treatment participation and court sanctions (Burns and Peyrot 2003, and compare Peyrot 1985). The framework of institutional construction incorporates a second developmental dynamic—institutional diffusion. Our original characterization of this process in the social control of substance abuse was in terms of diffusion between social control institutions, for example, diffusion of counseling from the mental health system and into the criminal justice system. This process can also contribute to change across multiple iterations of a remedial approach, such that subsequent iterations may incorporate structural innovations that have developed in and diffused from other institutional sectors (e.g., surveillance technology). Since that time, we have identified other types of institutional diffusion (Peyrot and Burns 2018). One type is diffusion within a social control institution—for example, how the drug court model of specialized offenses/clients and court-supervised treatment has diffused to other types of specialty courts for specialized types of offenses/clients (see Chapter 9). Another type of institutional diffusion is diffusion across levels of government—that is, among local, state, and federal government (see Chapter 8 on reversing mass incarceration, Chapter 7 on demonizing sex offenders, and Chapter 5 on the different federal and state standards governing police misconduct in the use of force). The original investigation of substance abuse by Peyrot (1984) noted that the passage of federal policy on marijuana served as a stimulus for states to pass legislation

Theorizing Social Control in Criminal Justice

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enacting severe criminal penalties for simple possession and use of even small quantities of marijuana, as well as for production and distribution of marijuana. An additional type of institutional diffusion is diffusion within a level of government (especially states)—for example, when states serve as role models for each other, with early adopters of a new legislative policy providing experience to guide later adopters. In our most recent work (Peyrot and Burns 2018), we have formulated a simplified set of stage transitions that can be applied to a problem without reference to the entire history of the social problem control institution: expansion (establishing new categories of controlled behavior, i.e., policy formation and implementation), escalation (increased sanctions and/or enforcement, i.e., policy modification), de-escalation (decreased sanctions and/or enforcement, i.e., a form of alternative policy formation and implementation), and contraction (decriminalization or legalization). Contraction is distinguished from de-escalation because in the latter transition social control is maintained within the previous social control institution (i.e., the criminal justice system), whereas in the former it is not. Note that decriminalization/legalization does not necessarily mean that there is no perceived problem or that the problem is not regulated. Rather, it may be that regulation is implemented through an alternative system, such as civil agencies (e.g., public health or consumer affairs), citations and fines, etc. (see Chapter 10). Our past work analyzed second generation developments in social control from the perspective of the perceived effectiveness of social control strategies, which are changed when they are considered to be ineffective even after escalation, leading to implementation of an alternative control strategy. In this book, we extend our theoretical framework to include the impact of external culture change, specifically the concern for social inequity and institutional legitimacy. While racism and xenophobia are nothing new, it is new that social control strategies themselves are being challenged, criticized, and changed because they are understood to be racist or xenophobic. Racial and ethnic bias and violence have been endemic in the area now comprising the United States from the time that European colonialists arrived, with the genocide of Native Americans, through the kidnapping and enslavement of Africans and post–Civil War “Jim Crow” apartheid, to the confinement of American residents (and citizens) of Japanese descent in internment camps during World War II, and more recently, the separation of Hispanic children and parents at the US-Mexico border. For the most part, US social control institutions have historically supported racial bias and violence rather than seeking to control them. However, at several moments in our history, racial bias and violence have become recognized as social problems—for example, the antislavery movement (including the use of

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armed forces to eliminate states’ rights to enslave Americans), and the civil rights movement that peaked during the 1960s. While racial bias and violence per se meet the institutional constructionism criteria for a social problem, it is less clear that racial bias and violence within the criminal justice system have met those criteria, at least in most locales. Initial racism remediation efforts were directed primarily to alleviating racial segregation, including access to political (voting, officeholding), housing, employment, and educational opportunities, as well as public and private accommodations (buses, restaurants, restrooms, etc.). From our institutional constructionism perspective, racism is a social condition that comes within our conceptual framework and under the purview of this book when it is defined as a social problem within a particular social control institution. Thus, from an institutional constructionism perspective, racism is not a single social problem, but rather a set of social problems, which now includes racial bias and violence in the criminal justice system. Peyrot’s original formulation of institutional constructionism (1984) made a formal distinction between modification of a first generation remedial strategy and implementation of a second generation (alternative) remedial strategy. This assumes a clear distinction between modification (expansion/escalation) of an existing approach and implementation of a new alternative. For example, the criminal justice system was an institution to protect all Americans from violence, yet reforms (modifications) were introduced when it became apparent that victims from disadvantaged and stigmatized groups were not being adequately protected. The creation of the legal categories of hate crimes and domestic terrorism expanded the domain of protection and enhanced the severity of punishment for violators in order to give more protection than victims previously received. The question is what defines an alternative remedial approach rather than merely a modified one. Our original theoretical formulation suggested that a truly alternative strategy defines the original remedial strategy as part of the problem, making the situation worse rather than better. But the introduction of hate-crime legislation did not suggest that preexisting criminal justice legislation was making the problem of racial violence worse, so hate-crime legislation would be classified as a program modification (expansion/escalation), rather than an alternative strategy. In contrast, current policing and sentencing/punishment practices have been socially defined as making the problems of racial bias and violence worse, and the proposed changes in strategy are defined as targeting reductions and/or modifications in these practices. This suggests that the newly proposed policing and sentencing practices represent alternatives. However, the problems of those defined as victims under the older approach are not reduced; only the problems of those subjected to the previous social control strategies are targeted (i.e., racial minority victims of police violence and biased court-sanctioned punishment). Thus, social control agents, rather

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than those previously targeted as perpetrators, became the targets of new social control efforts. The chapters that follow are organized according to three types of development in social control institutions: (1) expansion/escalation of control, including the development of new categories of controlled behavior and increased sanctions/enforcement; (2) legitimization of social control by regulating control agents and agencies in a quest for equity; (3) de-escalation/contraction of control (including reducing penalties for some controlled behaviors, hybridization by incorporating strategies from another social control sector, and legalizing behaviors to remove them from control by the criminal justice system). These types of development are interrelated—for example, reduction of social control often results from system overload created by expansion/escalation, resulting in a perceived need for system adaptation. Regulation of social control may become necessary to achieve equity in control and restore institutional legitimacy when social control agents are seen as allowing social/cultural bias to distort the functioning, fairness, and equity of the social control apparatus and its operations. In addition, external influences on these developments may exist, such as changes in economic conditions, social movements reflecting cultural change, and technological innovations (all of which are addressed in our analyses). Part 1 contains three case studies that examine the expansion/escalation stage of social control transition in three arenas where new categories of crimes and offenses and new categories of criminals and offenders have been created and the penalties associated with these crimes or offenses have increased. In Chapter 2 we cover hate crime and domestic terrorism; in Chapter 3 we look at gun violence and mass shootings; and in Chapter 4 we take on the subject of sexual assault in higher education. Note that this stage transition takes place after the initial stages of problem development in which a social condition is formally defined as a problem and remedies for the problem are formulated and implemented. As our institutional constructionism model predicts, during the stage of program modification stakeholder claims identify a need to strengthen existing measures for combating a problem. For example, prior to the events examined in Chapter 2 on hate crime and domestic terrorism, there were laws providing punishment for violent crimes against any member of society, including those from disadvantaged or stigmatized subgroups. Increased punishment was facilitated by creating new categories of crime (hate crime and domestic terrorism), which carried higher levels of punishment. In addition, the new categories altered the nature of the decisionmaking process regarding individual cases, bringing motive into the deliberations in ways

About the Book

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that differ from the legal consideration of intent/premeditation. In particular, these changes dovetail with the changes in regulation of social control to achieve equity and institutional legitimacy by focusing on the victimization of those from disadvantaged or stigmatized subgroups (see Chapters 5–7). However, some stakeholders have pushed back and tried to limit application of the new legislation, and, as we will document, this also is true of other social policy developments to address bias against racial minorities and other stigmatized subgroups. Similarly, prior to the events examined in Chapter 3 on gun violence and mass shootings, there were laws providing punishment for prohibited possession and use of guns. Yet, there is much reform agitation regarding the need to increase punishment for gun-related crime and violence and to implement and enforce preventive measures. Our analysis examines the competition between gun industry supporters who advocate for unregulated access to guns and those who advocate for gun industry regulation, gun safety, and gun violence prevention strategies. Legislative action at the federal level has been limited, but states and localities have taken the leadership role in social control modification. Our analysis also considers the institutional diffusion of social control strategies from the motor vehicle regulatory system, which have been brought into the debate. Likewise, prior to the events examined in Chapter 4 on sexual assault in higher education, there were laws providing punishment for sexual assault in any social sector, including higher education. However, this expansion/escalation of social control differs from the other chapters in this section because it does not expand criminal justice system control as hate crime and gun regulations do. Instead, the higher education system has expanded its own social control approach to take more responsibility for handling sexual assault among its members, with special attention to protection of the female student population. This program modification involves institutional diffusion of criminal justice–type concerns and procedures into higher education; colleges and universities are becoming increasingly involved in investigating, adjudicating, and punishing campus sexual assault using quasi-legal procedures. Use of these legal system strategies has expanded the scope of matters handled by higher education and escalated the severity of punishments administered. As a result, implementation of legal system control strategies has brought with it diffusion of the legal system concern for maintaining due process guarantees, with the attendant competition between pro-regulation and anti-regulation stakeholders. Although parallels exist in the developments within these three social problem arenas, we do not claim that these developments are inevitable. As we shall see in subsequent sections, other social problem arenas may manifest developments that are different (in Part 2) or even opposite (in Part 3). Description and prediction of which social problem arenas do or will man-

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ifest similar or different developmental trajectories is a higher-level generalization that is addressed more explicitly in Chapter 11 (e.g., the search for equity and social control legitimacy). Nevertheless, we can identify ways in which developments in one arena are linked to those in another arena. For example, developments in the gun-violence/mass-shooting and hate-crime/ domestic-terrorism arenas seem to interact to create a positive synergy for increasing the level of social control in both arenas. In particular, the increased visibility of mass shootings, especially those targeting victims from disadvantaged or stigmatized subgroups, has contributed to an increase in the perceived need to protect members of those subgroups. Moreover, perpetrators of these hate-motivated mass shootings often make their motivation clear, not only in the choice of settings for the shootings, but also in their self-avowed motives—such as racist manifestos. Indeed, mass shootings are one of the most visible situations where hate-crime/domestic-terrorism laws are considered for use. Part 2 examines the delegitimization and religitimization of social control. These chapters highlight the loss of popular legitimacy due to the perception of social inequity in social control institutions in three criminal justice domains. In Chapter 5, we investigate racial bias and violence in policing; in Chapter 6, we explore racial bias and White privilege in sentencing; and in Chapter 7, we look at the demonization of sex offenders. Race and other inequalities are central to a sociological approach, and this theme runs throughout this book. In this section, two chapters focus on racial inequalities in policing and sentencing. Although we cannot address all types of inequalities in this book, it is essential to focus on race-based institutional inequities, while also avoiding the implication that only racial inequalities are significant. Thus, this section also includes a chapter dealing with another stigmatized population—sex offenders. Some may feel it is unfair to compare those who exhibit stigmatized behavior to those who are stigmatized for their racial or ethnic heritage, but there are some important sociological parallels. Both populations have been treated unjustly by social control agents because of their alleged crimes and offenses and what those are taken to imply about perpetrators. All the chapters in the second section examine how social control efforts have victimized supposed perpetrators. We describe the assumptions that result in their being stigmatized as dangerous and therefore deserving of the most severe forms of surveillance, regulation, and punishment. Because propensity for crime is assumed to be inherent in the character of the accused, there is no end to surveillance and supervision, even once criminal sentences have been served. But increased surveillance and supervision are themselves forms of social control and increase the risk of being subjected to further social control, leading to a vicious cycle of increasing surveillance and punishment.

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Given the strength and persistence of the stigmatization of these populations, there are significant numbers of proponents for maintaining or increasing social control of these populations. However, recently advocacy has increased for change to achieve equity by reducing or eliminating the level of sanctions and surveillance to one based on more accurate perceptions of individuals in these populations. In the current stage of these social problems, the differences of opinion regarding appropriate social control strategies result in acrimonious arguments, public protests, and sometimes violent confrontations regarding which way to go in the future. Our analysis seeks to describe the proposed alternatives, as well as the arguments presented for and against them. In Chapter 5, we examine racial bias in policing, with a focus on use of deadly force and fatal police shootings of Black males. We examine the public outcry regarding excessive use of force by police and deadly police shootings and the Black Lives Matter/racial justice social movement that has arisen in response. We also examine the Blue Lives Matter countermovement to protect police and other first responders, as well as competing claims regarding whether and how policing practices should be changed to reduce the risk of police excessive force and lethal shootings of Black males and others. For example, many reformers suggest that there must be legal action to regulate police use of potentially deadly force, including modification of the legal protections for such actions. In Chapter 6, we examine racial bias in the prosecutorial and judicial systems related to sentencing. Critics claim that racial bias does not end after arrest (or shooting), but continues at every stage of the process from charging, bail-setting, adjudication, sentencing, release from incarceration, and postrelease supervision. This results in a cumulative increase in racial inequity as one moves through the criminal justice system, and reform advocates have identified multiple opportunities to reduce racial bias. This chapter also examines the counterpart to discrimination against racial minorities (i.e., White privilege) and the burgeoning social movements around removing judges who have dispensed sentences perceived as overly lenient to privileged White defendants (something also noted in our chapter on sexual assault in higher education). Finally, in Chapter 7 we examine the stigmatization of sex offenders as dangerous and untreatable, which is used to justify indefinite civil commitment (institutional detention even after completing one’s prison sentence) and intensive surveillance, supervision, and regulation if returned to the community. Again, reform advocates have provided arguments and evidence that this extent of punishment and demonization is unwarranted and unjust, that it does not reduce the problem of sex offending, and that it may in fact exacerbate it. Several remedies have been proposed to deal with this injustice, and a number of laws and court cases have led to implementation of various reform strategies, mostly at the level of state government.

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While the first two sections deal with first generation social problems, the second generation of social problem development involves implementation of one or more alternative social control strategies, which generally results in a less draconian approach. Thus, in Part 3 we examine three types of reduction in criminal justice social control resulting from a profound loss in perceived effectiveness and/or institutional legitimacy: de-escalation (Chapter 8, reversing mass incarceration), hybridization with therapeutic approaches (Chapter 9, extending problem-solving courts), and contraction (Chapter 10, reforming marijuana prohibition). These three strategies represent increasing levels of reduction in criminal justice control of social problems. Although institutional development may not always follow or complete this sequence, for the social problems examined in this section, de-escalation precedes hybridization, and hybridization precedes contraction (legalization). Note that de-escalation does not require the existence of an alternative type of remedy; it simply involves less of the existing remedy, perhaps to a level that existed previously (i.e., a reversal of the initial path of social problem development). However, hybridization requires the existence of an alternative type of remedy to integrate with the existing criminal justice approach. And total contraction (elimination of the criminal justice control system) requires the substitution of an alternative, non– criminal justice control system—for example, like those for ownership and use of commercial products or motor vehicles. As noted earlier, decreases in the perceived effectiveness and institutional legitimacy of a social control strategy may catalyze reform agitation. But this agitation may not be successful in triggering the creation and implementation of a new social control strategy. Proponents of the previous approach—politicians who campaigned for it, staff of existing social control agencies, private enterprises that profit from the market for goods and services required by the social control approach (e.g., for-profit prisons), and citizens who believe in the approach—are unlikely to easily reject their commitments and turn in a new direction. Indeed, as we see in our analysis of gun violence prevention, the majority of public opinion may strongly favor a new remedial approach for extended periods without corresponding government action. The likelihood of change in remedial approach is increased by other external factors that enhance the incentives for change—for example, politicians and social control agents in favor of the older remedial approach being replaced, budgetary problems in sustaining the older approach, and new industries or professions that might benefit from change to a new approach. The case studies in this section represent a confluence of all these factors, resulting in major shifts in social control strategy from a punishment-oriented approach to a variety of alternatives. In Chapter 8, we address one of the major themes in modern social control—the difficulty in maintaining draconian criminal justice strategies

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that result in mass incarceration. In addition to the often unsustainable costs of such programs, they may come to be seen as ineffective and/or inhumane. This chapter identifies factors leading to mass incarceration, including a variety of “tough-on-crime” measures (mandatory sentencing policies, “three-strikes” laws, and restrictions on early release from incarceration). More central to the chapter is the impact of new alternative sentencing approaches on reducing the number of people behind bars and on crime levels in society. Our discussion in Chapter 9 suggests that some criminal justice–related problems are ripe for the implementation of alternative remedial strategies, and that there may be diffusion of strategies from other institutional sectors; in particular, public health–oriented strategies may be adopted. In this chapter, we investigate the growing number and types of problem-solving courts across the country today. The rationale for this strategy is that it will be better to address the criminal justice system overload and recycling of participants with unmet mental health and substance abuse treatment needs by implementing therapeutic responses designed to manage the underlying problems of those who (repeatedly) become enmeshed in the criminal justice system. The widespread growth of these alternative specialty courts reflects the diffusion of mental health strategies and practices into criminal justice and the courts, with therapeutic and less punitive strategies for people in criminal justice who have more mental-health and substance-abuse types of issues (Burns and Peyrot 2003; Peyrot and Burns 2010). Integration of treatment and social services into the courts has some history (e.g., drug courts), but that history is rather short, has not been well researched, and has undergone changes as proponents have attempted to ramp up from a “boutique” operation to an approach that is central to all criminal justice courts. It is not clear how effective problem-solving courts are or will be in dealing with problems other than drugs, or how courts will adapt this model to dealing with other problems and populations. In Chapter 10, we examine problem contraction and the de-escalation of punishment by eliminating criminal justice control of a purported social problem, thereby diluting previously exercised social control of the arena. Decriminalization (civil rather than criminal justice control), medicalization (medical control), and legalization of marijuana reflect a contraction of social control following the enhanced criminalization, enforcement, and incarceration of drug offenders during the war on drugs. Legalization represents the broadest diminution of social control of marijuana, removing it completely from the domain of criminal justice, placing it instead under the auspices of another agency (e.g., consumer affairs) and taxing and regulating it in a manner similar to alcohol and tobacco. Nonetheless, a significant federal-state conflict of laws persists in the evolving area of marijuana control because marijuana still is illegal at the federal level, leaving much

Theorizing Social Control in Criminal Justice

15

uncertainty, ambiguity, and contingency in how various US attorneys will enforce federal drug law in their own districts. Ending marijuana prohibition represents a relatively unique situation in the development of US social problem control.2 State governments are rebelling against federal government laws and policies criminalizing marijuana possession, production/sale, and research by removing criminal justice sanctions and/or ceasing enforcement. In the typical social problem arena, there is little conflict between state and federal laws; either there is only one set of government controls (state or federal), or state and federal controls are complementary with cooperation between control agencies. In addition to managing the conflict between the federal prohibitions and the state-by-state decriminalization, medicalization, and/or legalization of marijuana, states must construct new systems for regulating marijuana. The latter task is made more difficult because the legal, regulated marijuana market competes with the illegal, unregulated market. Decades of black market monopoly because of marijuana prohibition allowed development of an industry designed to operate in spite of heavy government investment in prohibition. Therefore, the attempt to transition this industry into a legitimate enterprise requires continued effort to suppress illegal activity without the promise of federal support and perhaps in the face of federal interference with interstate activities, tax policy, and so on. The breakdown of state-federal legal reciprocity highlights an emerging phenomenon in institutional constructionism—the contributions of local, state, and federal governmental activity to the development of social problem control institutions. Several chapters of this book point to the role of state and local government, beyond that of following federal guidelines and using federal subsidies to implement policies formulated at the federal level. Local and state governments have played an important role as role models and pilot sites for new social control strategies in gun regulation, higher education initiatives against sexual assault, problem-solving courts, social equity initiatives, and attempts to reduce incarceration, among others. Therefore, analysis of state-level activity is an important element of our case studies, and because there is currently no federal commitment to reform marijuana prohibition on a national level, our analysis of this social problem arena focuses mainly on the state (and local) government level. In Chapter 11, the concluding chapter, we shift to generalizing our findings by identifying four meta-themes representing parallels observed across the development of the social problem control institutions analyzed in our case studies: conceptualization of key actors, loss of social control legitimacy, the role of the public, and the multilevel interplay of social policy changes. We also relate our analytic framework and the findings from our cases to other social problem arenas—for example, in what ways development in the lesbian, gay, bisexual, transgender, queer, and others (LGBTQ+) arena mirrors or

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contrasts with developments regarding regulation of hate crime, domestic terrorism, or sex offenders. Based on the developments discussed in the book, we offer some projections about likely future trends and new directions in social problem control policy within and related to the criminal justice system. We also identify potential topics and strategies for future research. * * *

Throughout this book, we draw primarily on published material to examine developments and insights in the sociological study of social problems and social control within the context of the criminal justice system. In contemporary societies, multiple institutions serve social control functions, but the quintessential such institution is the criminal justice system, including lawmakers, law enforcement officials, the courts, and custodial/supervisory agencies. We focus on public policy for social control that involves criminal justice institutions and issues, broadly defined, including regulation of corporate actors that might be included in strategies to control problematic behavior. The nature of the criminal justice system changes over time, and books dealing with important topics in the field also have to evolve. We seek in this book to advance theoretical and practical understanding of emerging criminal justice issues. One such issue is how terrorism is increasingly of a domestic, homegrown variety (e.g., the rise of anti-Asian hate crimes). Others include the magnitude of the mass shootings in the United States and how this development is connected to efforts to defeat gun safety measures, the control of marijuana possession, and the now unprecedented visibility of fatal police shootings and enhanced public, media, and legal scrutiny of the actions of police. These substantive topics and others covered in this book are valuable for students seeking to engage in critical thinking about the development and operation of the criminal justice system, as well as scholars and practitioners in criminal justice and related fields who aim to connect past, present, and future social control trajectories in their research and teaching. Although much of what we write may be applicable more broadly than to the United States, global comparisons are beyond the scope of the current work. In looking at recent developments in the United States, we devote more attention to developments in the state of California, which often acts as a “first mover” with reference to system change, due in part to the ease of using public ballot initiatives to modify state law.3 Where relevant, we also consider developments in other states that are at the forefront of innovative policies and programs. Our research suggests that action by state governments is becoming more important in driving social change and that these forefront states provide role models and lessons learned for other states considering their own policy changes. Thus, the forefront states give us the best projections of how social problem policy might change in the future.

Theorizing Social Control in Criminal Justice

17

Our focus is primarily on institutional developments in the later twentieth and early twenty-first centuries—that is, those years in which changes are still underway and will continue to evolve, perhaps in new directions. We look most closely at events during the years of the Obama and Trump administrations, which represent both of the major political parties and their divergent philosophies. Thus, we offer little historical information beyond what was in effect prior to Obama administration policies, and that is provided primarily to give a context for Obama administration policy changes. In discussing developments during the Trump administration, we focus on the relationship between these policies and those that had been developed and implemented during the Obama administration; the major changes in policy orientation provide important insight into the process that will drive social problem development in the near future. Our guiding conceptual framework identifies a series of stages through which social problems and social control structures evolve over time, producing different patterns of development. The social problems analyzed were chosen to represent different developmental processes and patterns, leading us to focus on those social problem arenas where current and recent change is more dramatic or likely. Our goal is not merely to describe the present state of affairs, but to identify emerging patterns that will impact how these problems develop in the near future. We believe that this way of understanding social problems and social control is applicable to a broad range of social problems beyond the specific ones addressed in this book. While our book has a coherent conceptual foundation, the individual chapters represent a casebook approach organized around case studies of specific social problems that currently are receiving significant public attention, each of which represents one or more of the patterns identified above. Our emphasis on legislation, court cases, and executive policy actions reflects an effort to supplement the more common focus on the role of public opinion and claims-making in the development of social problem control. Discussions of our case studies blend sociological and legal perspectives and move them to the policy level by emphasizing changes in the criminal justice system, both now and in the future. Our discussion highlights connections to what is provocative, engaging, and instructive about the case for larger themes, concepts, and issues in the sociology of social problems, social control, and criminal justice. 1. Figure 1.1 represents a simplification of our theoretical model. It implies that each stage is distinct, with the different types of developmental events confined to a particular stage. However, our model suggests that each stage involves multiple types of developmental events, and that the outcomes of such events are contingent. For example, programs may be modified during implementation, and reform agitation

Notes

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may begin during program modification, and so on. Moreover, the progression across stages may stall. Conversely, momentum may increase during a given stage, which increases the likelihood of progression to the next stage. Note also that the model is applicable across multiple social jurisdictions, moving forward in some while being inactive or stalled in others. 2. Recently, state repudiation of federal criminal justice laws and the radical departure from when state and federal laws were consistent has expanded beyond the marijuana arena. See our chapter on gun violence and mass shootings and the move by Republican-led states to pass laws to prevent the police from enforcing federal gun laws as a response to President Biden’s gun control proposals and the potential expansion of gun control measures being proposed by Democratic legislators (Thrush and Bogel-Burroughs 2021). 3. The ballot initiative is a process of popular democracy that provides citizens of California with a way to propose and pass laws and constitutional amendments without gubernatorial or legislative support. In order for an initiative to become law, the complete text of the proposed law must be submitted to the California attorney general, which in turn is submitted to the California secretary of state. Petitions are then circulated to collect the required number of signatures from registered voters, which are then turned in to county election officials for verification. If enough signatures are obtained, the measure is placed on the California ballot and voters either approve or reject it. In recent years, there has been increased use of the initiative process in California to enact criminal and civil laws (e.g., gay marriage legalization). Figure 1.1

Institutional Construction Model of Social Problem Development

2 Hate Crime and Domestic Terrorism

criminal behavior that go beyond the fundamental criterion for all criminal behavior, which is that the behavior represents a violation of criminal law. In the United States, a hate crime is a traditional crime, with the additional element of bias against the targeted person’s or group’s statutorily defined characteristics—for example, race, religion, ethnicity, gender, sexual orientation, gender identity, or disability. A crime motivated by bias is eligible for sentencing enhancement whereby the judge may increase the sanction beyond that for the underlying crime based on the perpetrator’s motive (Jenness 2007). A determination of motivation is likewise key to defining the crime of terrorism and is how terrorism is distinguished from a traditional violent crime, such as an assault or murder. Akin to hate crime sentencing, under the terrorism enhancement act a judge may increase the sentence for an offense that “involved, or was intended to promote, a federal crime of terrorism” (US Sentencing Commission Guidelines Manual, section 3A1.4 [2021]; also see Said 2014). The crimes of defendants most often sentenced under terrorism enhancement acts are actions intended to produce massive harm and/or casualties that seek to intimidate a civilian population or influence a government policy with the aim of advancing a political, religious, or ideological cause. Recently, the concept of terrorism has been applied to violent crimes committed by Americans on other Americans, that is, domestic terrorism. Although hate crime and domestic terrorism legislation created new categories

Hate crime and domestic terrorism represent two conceptions of

21

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of crime, the net effect was more an escalation in severity of punishment rather than an expansion of the domain of criminal justice. While some legislation brings additional acts under the domain of criminal justice (expansion), most of the acts that qualify under the new laws were already crimes (with the exception of some forms of discrimination), and the function of the legislation was to create an opportunity to invoke stiffer penalties for those crimes. Note that this form of program modification shares some features of other case studies in this book. For example, these policies have a parallel goal with efforts described in Part 2 on legitimizing social control, that is, to protect vulnerable subgroups. But unlike those strategies, which are targeted toward social control agents, these policies are targeted toward potential or actual criminals. The chapter plan is to examine the historical development of the laws regarding hate crime and domestic terrorism (see Table 2.1 at the end of the chapter) with special attention to the circumstances giving rise to these laws—that is, the social problems to which they are an institutional response, especially violent crimes against disadvantaged and vilified populations. Differences and commonalities between the conceptions of hate crime and domestic terrorism are identified, including how the laws have been used (or not used) in dealing with persons who are or could be prosecuted under these laws. Possible barriers to using the laws (e.g., difficulty in assessing intent) are identified and critically analyzed in order to delineate potential strategies for using these laws equitably and effectively, particularly in crimes by and against people of color. The FBI has been investigating what are now called hate crimes since World War I, but these crimes were not regarded as a specific category of criminal acts. The intensity of this activity increased dramatically during the civil rights movement with passage of the Civil Rights Act of 1964 (Pub. L. No. 88-352, 78 Stat. 241) and Title 1 of the Civil Rights Act of 1968 (Pub. L. No. 90-284, 82 Stat. 73) that criminalized anti–civil rights violence (18 U.S.C. § 245). Grattet and Jenness (2001) suggest that hate-crime laws arose out of the civil rights, racial justice, and victim’s rights movements, which brought attention to the social construction of what it means to be a victim. In 1993, the US Supreme Court in the case of Wisconsin v. Mitchell first upheld a biasoriented criminal statute. The court reasoned that the statute punished the discriminatory selection of a victim—an action, not biased thought—and was thus directed at conduct unprotected by the First Amendment. Hate per se is not a crime (freedom of speech and other civil rights make feelings and attitudes protected, unless the speech is intended to incite violence), but it can be a motive for committing a crime. In the 1990s, several important pieces of

Development of Hate Crime Law

Hate Crime and Domestic Terrorism

23

legislation were passed to combat hate crime, including (1) the 1990 Hate Crime Statistics Act (28 U.S.C. § 534), which authorized the collection of data on hate crimes from law enforcement nationwide; (2) the 1994 Violence Against Women Act (enacted as part of the Violent Crime Control and Law Enforcement Act of 1994 [Pub. L. No. 103-322]), which added gender as a federal hate crime category; and (3) the Hate Crime Sentencing Enhancement Act (also part of the Violent Crime Control and Law Enforcement Act of 1994 [Pub. L. No. 103-322]), which added federal hate-crime penalty enhancements and complemented state hate-crime penalty-enhancement statutes. The passage in 2009 of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (18 U.S.C. § 249) authorized federal action to investigate crimes that were believed to be based on actual or perceived gender, sexual orientation, gender identity, or disability, in addition to crimes based on race, ethnicity, religion, or national origin. It is important to note that not all “hate crimes” involve hate. The actions targeted by these laws require only that bias or prejudice be a driver of the action; there is no need to show that a person feels the emotion of hatred. Moreover, even if a person who is a racist kills a person of another race, that act is not necessarily a hate crime unless bias motivated the killing. For example, in 2015 three Muslims were shot to death by a White neighbor in an apartment near the University of North Carolina at the Chapel Hill campus. The victims’ families were convinced that race and religion played a primary role in those tragedies. However, police investigation indicated that the slayings were sparked by a parking dispute rather than the students’ race or religion (Criss 2017). Bias-motivated offenses encompass a wide range of behaviors, from low-level criminal offenses, such as vandalism, to serious violent crimes like arson, assault, and murder. And there are differences in the crimes that laws designate (or do not designate) as hate crimes and how they are dealt with in the criminal justice system. For example, hate crimes are more than three times as likely to involve violence than are nonhate crimes (90 percent versus 25 percent); yet, despite the increased severity of offense and the fact that similar numbers of hate and nonhate crimes are reported to the police, only one-third as many hate crimes result in arrest compared to nonhate crimes (10 percent versus 28 percent) (Masucci and Langton 2017). There also is much variation across jurisdictions in terms of the protected groups covered by hate crime statutes (Jacobs and Potter 1998). In 2020, forty-seven states and the District of Columbia had hate crime laws, with different specifications of who is protected; the states with no hate crime laws were Arkansas, South Carolina, and Wyoming. Every state law covers bias based on race, religion, and ethnicity; thirty-four cover disability and sexual orientation; thirty-two cover gender; twenty-two cover gender identity; fourteen cover age; and three cover homelessness.

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Hate crime legislation may undergo expansion over time to address new and previously unrecognized categories of bias-motivated offenses. Alternatively, lawmakers can legislate away previously protected categories (Berard 2005, 2010, 2015). For example, in 2002 Pennsylvania passed a hate crime law that covered sexual orientation and gender identity (2002 Pa. Laws 143, P.L. 1176, HB 1493 (2002)). But in 2008, the state supreme court struck down the law on procedural grounds (Marcavage v. Rendell, 951 A.2d 345 (Pa. 2008)). Conversely, in Ky. House Bill 14 (2017), the state of Kentucky expanded hate crime categories and became the second state in the nation (after Louisiana H.B. 953, Reg. Sess. (La. 2016)) to treat law enforcement personnel and first responders as a protected category under hate crime law (Schladebeck 2017). The goal of these laws is to protect law enforcement officers, firefighters, and emergency medical technicians while performing their duties. (Note: this is similar to the initial terrorism laws, discussed below, that protected US diplomats abroad.) Popularly referred to as the Blue Lives Matter bill, it requires that “offenses committed against an individual because of an individual’s actual or perceived role as a first responder” be treated as a hate crime (Schladebeck 2017). Ironically, Kentucky’s hate crime laws continue to exclude as criteria inherent personal characteristics that are not a matter of career choice, including gender identity, ancestry, age, and disability (Schladebeck 2017). The bills granting protected status to first responders have received criticism from individuals and groups who disagree with granting an occupational category the same protections as minorities. Convictions for hate crimes carry increased punishment, and critics have questioned whether it is fair to punish certain defendants more severely than others who commit comparable crimes but absent the hate motive (Levin 2015). Opponents of hate crime laws also emphasize that “motive” is inherently subjective and that it is difficult, if not impossible, to determine someone’s motivation at the moment of their act. However, intent is an important part of law, especially when it involves killing. Manslaughter involves the killing of another person, but it is distinct from the crimes of murder in the first or second degree because of differences in intent. Moreover, types of murder are differentiated by intent (first degree is premeditated, second degree is not), as are types of manslaughter (voluntary manslaughter requires an intent to kill—an act that usually would be defined as murder, but the killing was committed in response to an adequate provocation—while involuntary manslaughter does not involve intent). The absence of malice and/or forethought creates less moral blame and less severe punishment. Hate crime law simply applies the criterion of motive by which moral blame and punishment are determined.

Pushback Against Hate Crime Legislation

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Jeannine Bell suggests some lawmakers are worried that such laws will create an inequitable system of justice, favoring some groups but not others who may also be victims of hate (Bell, referenced in Thompson and Lee 2017). For example, in political debate within our polarized country, the word terrorism is a verbal weapon often used when the accused is Muslim (Shane 2017). Conversely, civil rights groups point to a reluctance to treat anti-Muslim violence as terrorist/hate crime and suggest this reflects antiMuslim bias. Anti-Muslim violence often is “attributed to disturbed loners with far-right leanings, but no real agenda” (Fisher 2017, p. A8), rather than being labeled domestic terrorism or hate crime. Thompson and Lee (2017) contend that beliefs grounded in religious and political conservatism have precluded the passage of hate crime laws in some states and have influenced which groups are protected in other states. Indeed, much of the opposition to creating hate-crime legislation and limiting the groups protected in these states has emerged from well-organized groups of Christian fundamentalists who on religious grounds disapprove of any sort of legal protection for gays, lesbians, and transgender people. While some Christian groups have no difficulty with protecting people from crimes that are motivated by racial or religious bias, they draw the line at sexual orientation. For these groups, the primary concern is the inclusion of legal language increasing punishment for crimes motivated by contempt for LGBTQ+ people, measures they view as a dangerous part of a broader “homosexual agenda” (Thompson and Lee 2017). Thus, opposition to hate crime legislation may be motivated by the same type of biases that motivates people to commit hate crimes. The initial definition of terrorism as a crime targeted what we now refer to as international terrorism, which involves violent acts that violate US criminal laws; are intended to intimidate or coerce civilian populations or influence government through intimidation or coercion by mass destruction, assassination, or kidnapping; and occur outside US territory or are transnational (18 U.S.C. § 2331). The US Code of Federal Regulations defines terrorism as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population or any segment thereof, in furtherance of political or social objectives” (28 C.F.R Section 0.85). In 1986, the Omnibus Diplomatic Security and Antiterrorism Act (Pub. L. No. 99-399) criminalized terrorist acts committed against US diplomats or citizens traveling outside the United States. In the 1990s, the Biological Weapons Anti-Terrorism Act of 1990 (Pub. L. No. 101-298) and the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132, 110 Stat. 1214) expanded the definition

Criminalization of Domestic Terrorism

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Increasing Social Control

of terrorism to include those acts taking place in the United States and those inspired by domestic ideologies. International terrorism is perpetrated by individuals and/or groups inspired by or associated with designated foreign terrorist organizations or nations (state-sponsored). For example, the shooting that killed fourteen people and wounded twenty-two in San Bernardino, California, in December 2015 involved a couple that had been radicalized prior to the attack and were inspired by extremist ideologies of foreign terrorist organizations. Domestic terrorism is perpetrated by individuals and/or groups inspired by or associated with primarily US-based movements that espouse extremist ideologies of a political, religious, social, racial, or environmental nature. For example, the shooting in June 2014 in Las Vegas, Nevada, during which two police officers were killed in an ambush-style attack was committed by a couple who held antigovernment views and intended to use the shooting to start a revolution. Perhaps the key element distinguishing definitions of international and domestic terrorism is the designation of the type of organizations with which the perpetrators are connected. Foreign terrorist organizations are identified by a list generated by the US secretary of state under Section 219 of the Immigration and Nationality Act (INA) (8 U.S.C. § 1189). The criteria for this list are that the foreign organization must (1) engage in terrorist activity as defined in the INA (8 U.S.C. § 1182(a)(3)(B)), or terrorism as defined in the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. § 2656f(d)(2)), or (2) must have the capability and intent to engage in terrorist activity or terrorism as defined above. The organization’s terrorist activity or terrorism must threaten the security of US nationals or US national security. In 2001, Section 802 of the USA PATRIOT Act (Pub. L. No. 107-52) included a definition of domestic terrorism that paralleled the criteria of international terrorism but without the requirement of participation in or inspiration by a terrorist organization. Note that there is no formal federal list identifying US domestic terrorist organizations, an absence often attributed to First Amendment concerns that a list could unconstitutionally discriminate against ideologies and beliefs that are merely unpopular. While participation in or affiliation with certain domestic (e.g., White supremacist) organizations may be cited as evidence in making the case for domestic terrorism, it is not presumptive evidence as it is with foreign terrorist organizations. For example, a USborn Islamic State of Iraq and Syria (ISIS) sympathizer who has never met another ISIS supporter is defined as a terrorist as long as he or she commits an act of violence and credits the terrorist organization. Conversely, a USborn White supremacist who consorts with other US-born White supremacists and bombs a mosque could be defined as a domestic terrorist, but more often is charged only with possessing and using explosives.

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Another distinction between international and domestic terrorism is the way that involvement with an organization with terrorist leanings and activities is regarded. Financial support for a designated foreign terrorist organization is itself a crime, as are a variety of “material support” activities such as planning of a terrorist act. Note that the material support provision is similar to what is involved in defining an accomplice to a crime—that is, aiding and abetting in the crime. The material support provision also defines about fifty offenses as acts of terrorism, but if explosive or radiological devices are not used, domestic terrorism requires that the act is directed against a US government employee or property. There is no such requirement if the perpetrator is affiliated with or inspired by a foreign terrorist organization, making it easier to prosecute international terrorism than domestic terrorism. There is a paradox of hate crime; it could be defined as domestic terrorism, but is it somehow different? As one terrorism expert understands it, terrorism involves the intentional generation of massive fear among people for the purpose of securing or keeping control over them (Cooper 1978). On a personal level, hate crimes are experienced by victims as terrorist (e.g., seeing a burning cross on your lawn). Indeed, former attorney general Loretta Lynch described hate crimes as the “original domestic terrorism” (Fisher 2017, p. A8). Terrorism and hate crimes evoke fear and terror in individual victims and targeted groups and cause injury on a mass basis through the intentional use of force or threat of violence against people, groups, property, governments, and organizations. Domestic terrorism is seen as random, potentially affecting anyone regardless of whether they are members of a protected category of people, while hate crimes are thought of as targeted only toward those in protected categories. Some terrorist victims are randomly selected so virtually anyone could be victimized, while hate crime victims are selected based on their individual and group characteristics, such as the mass shooting in 2015 by White supremacist Dylann Roof of the Black prayer group at a South Carolina church, killing nine people. Roof was charged with hate crimes, rather than domestic terrorism. Legal scholars concluded that prosecutors pursued hate crime rather than domestic terrorism charges because they are easier to prove (Fisher 2017, p. A8). Complications in classifying criminal offenses as hate crime versus domestic terrorism also arose when authorities tried to categorize the mass shooting in June 2016 at the Pulse gay nightclub in Orlando, Florida, where Omar Mateen killed forty-nine people and wounded fifty-three more before being killed in a shoot-out with police. Mateen had declared that he was allied with the political agenda of the Islamic State (evidence of international

Paradox: Hate Crime or Domestic Terrorism

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Increasing Social Control

terrorism) and also appeared to be motivated by hatred against gays (evidence of a hate crime). The Federal Bureau of Investigation (FBI) investigated and concluded that the massacre was both a hate crime and an act of terrorism, indeed the worst act of terrorism in the United States since 9/11 (Young 2016). In another example, in March 2017 a White man named James Jackson stabbed and killed a Black man in New York and said he did so as a “practice” run for more killings. Jackson was convicted of murder as both a hate crime and domestic terrorism and sentenced to life in prison. According to the Manhattan District Attorney’s office, Jackson told police he traveled from Baltimore to New York to commit his crime because it is a media capital and he wanted to perform a “political terrorist attack” to “inspire white men to kill black men, to scare black men, and to provoke a race war” (Romo 2019b). This was the first time that a White supremacist was convicted of domestic terrorism in New York State. The August 2019 mass shooting in El Paso, Texas, killed twenty-two people and wounded twenty-six people (Law and Bates 2019). This shooting is being investigated as an act of domestic terrorism and as a possible hate crime after authorities who were investigating the crime found a manifesto that appeared to have been posted by the gunman (who is White) nineteen minutes before the shooting and that described an attack as in response to “the Hispanic invasion of Texas” (Romero, Fernandez, and Padilla 2019).

Social Control Function of Hate Crime and Domestic Terrorism Law

The social control issue behind hate crime and domestic terrorism legislation is often thought to be “whether more severe sanctions will on balance serve to reinforce or to undermine the criminal law’s deterrent impact” (Goldstein 1974). Critics have questioned whether enhancement of sentences based on a motive of bias or animus serves as an effective deterrent (Levin 2015), suggesting that enhanced criminal sanctions may not deter many hate-motivated offenders because they are motivated primarily by emotion. However, Baron (2002) maintains that the government’s interest in hate crimes may be because such crimes give voice to and enact civic hatred. Baron argues if hate crimes are so understood, then hate crime legislation may counter the highly corrosive messages of bias and hate that need to be challenged. Hate-motivated and domestic terrorist crimes send a dangerous message to the community by challenging our cherished and deeply held collective values of diversity and interculturalism. “Hate” is a conception of the motive for crime that makes it more serious than “bias.” And while technically

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accurate, charges of possessing and using explosives do not trigger the perception of collective peril generated by a “terrorism” charge of “using weapons of mass destruction.” The enhanced criminalization of these acts thus serves what Emile Durkheim called the “expressive function of law” (Durkheim [1893] 1984; also see Berard 2015), in which people engage in “moral enterprise” (Becker 1963) to persuade others to support, pass, and enforce laws criminalizing behavior that offends their sense of justice. Michael German, a former FBI agent, explained: “Back in the 90s, terrorism was usually used as a rhetorical device. If I wanted to say this kind of violence was extremely bad, I’d say it’s terrorism” (Aaronson 2019). The significance of labeling an act as a hate crime or domestic terrorism extends well beyond defining a particular act. It is consequential because it increases the government’s authority to investigate and punish it. “Terrorism is considered the most important type of crime. . . . When you put people and crimes in that category, it places more importance on them. People take these crimes more seriously” (Jesse Norris, cited in Aaronson 2019). In fact, almost half of respondents in a Pew Research Center survey agreed that torture of terrorists is acceptable under some circumstances (Tyson 2017), an indication of the degree to which terrorist activity is condemned. After 9/11, public outcry about Islamic terrorism triggered widespread policy reforms that have not been seen in the wake of violence against Blacks—for example, White supremacist hate crimes or fatal shootings of Black men in police-citizen encounters. Perhaps we respond differently to “terrorism” because it often is misattributed to “foreigners” who are “not like us,” while we tolerate violence by “fellow Americans” regarded as “one of us.” The media’s disproportionate coverage of Muslim terrorism acts has inflated the perceived threat of those actors compared to domestic terrorists; a study found that terrorist attacks by Muslim extremists receive 357 percent more media coverage than attacks committed by non-Muslims (Kearns, Betus, and Lemieux 2019). Yet a government report on terrorist violence after 9/11 through 2016 found that right-wing extremists were responsible for three times as many violent acts as Muslim extremists (Government Accountability Office 2017). Related research by the AntiDefamation League on 487 extremist-related fatalities from 2002 to 2018 found that 80 percent of the victims were killed by right-wing extremists (Stimson Center Study Group on Counterterrorism Spending 2018). Another way that crime definitions serve the expressive function of law is in the reporting of crime statistics on the amount of various crimes. Statistics on hate crimes are underreported. In fact, Ghosh (2017) notes that “more than 3,000 state and local law enforcement agencies do not report hate crimes to the Federal Bureau of Investigation (FBI) as part of its annual national crime survey.” This omission communicates to the communities involved (as either potential victims or perpetrators) that hate crimes

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are not especially stigmatized. Domestic terrorism crimes also are underreported, and there is no mandate to report such crimes to the FBI.

Discretion in Defining Acts as Hate Crime and/or Domestic Terrorism

Street-level discretion, interpretation, and decisionmaking by local law enforcement is highly consequential for how abstract legal concepts and principles are translated into enforceable hate crime laws and how officers respond to actual incidents and citizen complaints of hate crime in the daily work of policing (Bittner 1967a, 1967b). There is much leeway in how police officials classify, count, and report hate crime in the official statistics (Bell 2002; Jenness 2007). As law professor Jeannine Bell emphasizes, police discretion determines what will and what will not count as a hate crime and “bias crimes do not exist . . . until police say they do” (Bell 2002, p. 12). Although law enforcement agencies at the state and federal level are responsible for enforcing hate crime laws, these laws and their in situ interpretation vary widely, including but not limited to different definitions of protected categories and what acts constitute a hate crime. In addition, as Bell notes, “a decision by police not to invoke the law determines to a great extent that the incident will not be pursued as a hate crime” (Bell 2002, p. 2, emphasis added). There is also much prosecutorial discretion in deciding whether to charge and prosecute a hate crime and, if so, what charges and penalties to pursue (e.g., whether to seek a sentence enhancement). Likewise, the federal prosecutor in a specific case has the discretion to decide whether to file a terrorism charge and/or seek a terrorism sentencing enhancement, depending on the facts and circumstances of the individual case. In some cases, the convicted person has not committed an act of terrorism per se, but may have provided material support to terrorist groups, or engaged in secret planning of such harmful action. If the federal judge is persuaded that the crime of conviction involved, or was intended to promote, a specific act of terrorism, the sentencing enhancement can be applied. Discretion in prosecuting acts as hate crime or domestic terrorism can be seen in the examination of several well-publicized cases. One example is a tragic incident in August 2017 involving White supremacist and antiSemitic demonstrators in Charlottesville, Virginia, where protesters marched with confederate flags, torches, clubs, and assault rifles, shouting racist and anti-Semitic hate speech. This demonstration of White hatred and intimidation of persons of color and religious minorities resulted in an incident of lethal violence. James Fields’s vehicle smashed into the back of a truck carrying antihate counterprotesters, forcing the car into the crowd and knocking bodies into the air. Fields then reversed direction and hit additional people,

Hate Crime and Domestic Terrorism

31

leaving one person dead and thirty-five others injured. The cover of Time magazine in the aftermath of this tragedy is described as depicting “a protester giving a Nazi salute while draped in an American flag . . . taking what the flag guarantees them—freedom of speech—to further an agenda of hatred” (Gibbs et al. 2017). In the wake of the Charlottesville tragedy, the FBI opened a criminal investigation into the deadly car crash. At that time, Attorney General Jeff Sessions stated that the attack met the definition of domestic terrorism and promised to seek the most serious charges. The US government determined that there was evidence that the suspect intended to send a broader message beyond harming the immediate victims (i.e., “Jews will not replace us”) (Lucas 2017). The Department of Justice (DOJ) also initiated a civil rights investigation, but Fields’s federal indictment did not charge him with domestic terrorism or hate crime. Nevertheless, Fields’s sentence was life plus 419 years of imprisonment and $480,000 in fines. Compare this to the case of Sayfullo Saipov, who drove a truck through a bike lane in New York City nearly three months after the Charlottesville attack, killing eight people. Saipov was so proud of his allegiance to ISIS that he tried to display their flag in his hospital room. Saipov’s crime was similar to that of Fields, but Sessions called his attack “a calculated act of terrorism in the heart of one of our great cities” (Aaronson 2019). Saipov was charged in federal court with murder and providing material support to ISIS, a terrorist crime. Both Saipov and Fields were extremists who allegedly turned vehicles into deadly weapons, but because one (Saipov) was motivated by the ideology of a formally defined foreign terrorist organization and the other (Fields) by the ideology of domestic (terrorist) organizations, one was prosecuted as a terrorist and the other was not. In October 2018, more than a dozen pipe bombs were sent to the homes and offices of Democratic Party leaders, government officials and critics of then president Donald Trump. Although none of the bombs detonated, all contained explosive material. A fingerprint on an envelope containing a bomb matched Cesar Sayoc’s, and an initial investigation discovered that he had been charged previously with threatening to bomb a local power company. Sayoc initially was charged with mailing explosives, making threats, and assaulting federal officers but was not charged as a terrorist, though his alleged crimes appeared to meet the US statutory definition of domestic terrorism. Attorney General Sessions instead referred to Sayoc as “a partisan” who had committed “political violence” (Aaronson 2019). In a filing supporting Sayoc’s extradition from Florida to New York to face criminal charges, federal prosecutors described his offenses as “a domestic terrorist attack” waged as part of a “terror campaign” (Aaronson 2019). Federal prosecutors in New York issued a new indictment, filing several additional charges against Sayoc, including that he used weapons of mass

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Increasing Social Control

destruction—an antiterrorism charge that has been applied against seventynine international terrorists but only twenty-three right-wing extremists since 9/11 (Aaronson 2019). Sayoc pled guilty to sixty-five charges, including use of weapons of mass destruction (punishable by a prison life sentence), and received a sentence of twenty years in prison, a harsh sentence that sends a message about how seriously our society takes domestic terrorism. What is unusual is that this standard was applied to someone who was not charged as an agent of an international terrorist group. Jerry Varnell is one of only twenty-four right-wing extremists to face weapons of mass destruction charges since 9/11. In an FBI sting operation, Varnell was provided with a fake bomb that he tried to detonate next to a bank in Oklahoma City during August 2017. He was charged with several offenses, including attempting to use weapons of mass destruction, a terrorist crime. In February 2019, a federal jury convicted Varnell of attempting to use a weapon of mass destruction, which resulted in a twenty-five-year prison sentence and lifetime supervision upon release. However, prosecutors more often bring less serious charges against violent right-wing defendants. For example, in January 2015 Thaddeus Murphy bombed a Colorado building in which there was a National Association for the Advancement of Colored People (NAACP) office; he was charged with firearms violations rather than weapons of mass destruction charges and received a sentence of only five years imprisonment. An analysis by the Intercept of federal prosecutions since 9/11 found that the DOJ has routinely declined to bring terrorism charges against right-wing extremists even when their alleged crimes meet the legal definition of domestic terrorism: ideologically motivated acts that are harmful to human life and intended to intimidate civilians, influence policy, or change government conduct (Aaronson 2019). According to a review by the Intercept, 268 right-wing extremists prosecuted in federal court since 9/11 allegedly were involved in crimes that appear to meet the legal definition of domestic terrorism, yet the DOJ applied antiterrorism laws against only 34 of them. In contrast, antiterrorism laws were applied against more than 500 alleged international terrorists.

Further Developments in Hate Crime and Domestic Terrorism Law

An attempt is being made to expand hate crime protection by legislation to provide hate crime protection for the unhoused; as of 2020 three states (Florida, Maine, Maryland) and the District of Columbia have passed such legislation. There has been movement by the US Congress to federalize hate crime protection for the homeless by passing the Hate Crimes Against the Homeless Statistics Act (Senate Bill 1765, 2009). Gaeddert (2008) cites

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33

as support the 2007 report of the National Coalition for the Homeless, stating that at least 160 people without homes were violently attacked, with at least 28 of those resulting in the death of the victim. Over a ten-year period, the number of deaths among the unhoused was more than the number of hate crime homicides for all other types of protected classes combined (Levin and Stoops 2009). One possible contribution to these deaths are popular internet videos (e.g., “Bum Hunters” and “Bumfights”) in which perpetrators are shown assaulting, throwing projectiles at, or setting fire to unsuspecting unhoused people. An increase in anti-Asian hate crimes and violence emerged at the beginning of the Covid-19 pandemic in spring 2020. Because the Covid-19 virus was first reported in Wuhan, China, some influential politicians (including President Trump) and media commentators began referring to the pandemic as the “China Virus” or “Kung Flu,” suggesting that it was the fault of the Chinese people. This led to an unprecedented surge in the number of hate crimes and violent incidents against people who appeared to be Asian or of Asian descent, mostly in New York and Los Angeles (Yam 2021). In response, the Covid-19 Hate Crimes Act (Public Law, 117-13 (2021)) was enacted by Congress and signed into law by President Joe Biden in May 2021. The legislation addresses hate crimes and violence during the Covid-19 pandemic, especially the increase in violence against Asian Americans related to Covid19. This new law will strengthen hate crime enforcement at the federal and local level and give new tools and resources to federal and local officials to combat hate crimes. The increase in anti-Asian attacks reflects the rise of right-wing extremism and domestic violence, which has reached a level that the United States has not experienced in twenty-five years: “What is most concerning is that the number of domestic terror plots and attacks are at the highest they have been in decades” (O’Harrow, Tran, and Hawkins 2021, quoting Seth Jones, director of the database project at the Center for Strategic and International Studies, a nonpartisan nonprofit that specializes in national security issues). The rise in terrorist incidents represents a “growing threat from homegrown terrorism . . . with right-wing extremist attacks and plots greatly eclipsing those from the far left and causing more deaths” (O’Harrow, Tran, and Hawkins 2021). According to the FBI and Department of Homeland Security, right-wing, White supremacist extremists and affiliated groups are the largest source of terrorist violence in the United States (Wray 2020). Another instance of expanding hate crime protection is the potential classification as a hate crime of making false accusations to police about a Black person committing a crime. Amy Cooper was walking her dog in Central Park when a Black man who was bird-watching asked her to put her dog on a leash to conform to park regulations (Major 2020). She said she was

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Increasing Social Control

going to call the police and “tell them that an African American man is threatening my life,” which the man recorded her doing, saying “there’s a man—an African-American with a bicycle helmet—he is recording me, and threatening me and my dog.” The recording was posted on the internet and went viral. New York assemblyman Felix Ortiz and New York senator Brian Benjamin then introduced Assembly Bill A3566, which would treat falsely reporting such an incident to the police as a hate crime. Ortiz said, “In the past year, we have seen many instances throughout both New York State and the country of people calling 911 on black people who are going about their everyday lives, only to be interrupted by someone calling the police for reasons that range from caution, to suspicious inkling, to all out hatred.” Los Angeles activists LaKeysha Edwards, Donald George, and Hess Wesley have started a petition to get lawmakers to make it a hate crime to make a false accusation of a crime based on the race of the accused and to place people convicted of hate crimes on a national database (Crouch 2020). Another approach to address the growing problem of hate crime is escalation of the severity of punishment. For example, the California state assembly recently passed a bill that was a response to “an alarming spike in hate crimes in the days and weeks following the presidential election and a double-digit increase in the hate crimes reported to law enforcement in California in 2015” (Williamson 2017b). Specifically, Assembly Bill 39 sought to establish a publicly viewable hate-crime registry, which would provide the names of convicted hate-crime offenders and list the hate crimes they had committed (California Assembly Bill 39, 2017–2018). A hate crime registry would be a public “shaming punishment” (Braithwaite 1989) that could lead to additional adverse consequences (e.g., a denial of employment or residency), which would increase the deterrence effect. Even if greater deterrence were not achieved, this would enhance the expressive function of the law by reinforcing the community’s feelings of repugnance for these acts.1 However, California Assembly Bill 39 was amended and enacted with Penal Code § 422.95 (2017), which requires redaction of personal and identifying information (i.e., sending only a summary report of the hate crime incident to relevant authorities). Thus, the shaming and deterrent purpose of the proposed law was not achieved. A state initiative to enhance anti–domestic terrorism legislation is the August 2017 passage of a resolution by the Illinois State Senate identifying neo-Nazi organizations as domestic terrorist organizations and calling on law enforcement to act against them as such (Narayan 2017). This is an initial attempt to replicate for domestic terrorism legislation the provision that is key in defining acts of international terrorism. However, this strategy would be more effective as part of a federal initiative to develop a comprehensive list of domestic terrorist organizations. “We clearly have domestic terrorist groups in the United States. We just don’t call them terrorist

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35

groups,” said Brendan R. McGuire, a former prosecutor who served as the terrorism chief for the US Attorney’s Office for the Southern District of New York (Aaronson 2019). “Generally speaking, there continue to be challenges within the government to applying the terrorism label to purely domestic conduct. We’re just much more experienced and comfortable with exporting that label, with seeing terrorism as something that comes only from the outside” (Aaronson 2019). The difficulty in identifying hate crime and/or domestic terrorism is reflected in discourse surrounding the deadliest mass shooting in modern US history, which occurred during October 2017 in Las Vegas, Nevada. The shooter, Stephen Paddock, opened fire on a crowd attending a music festival from a thirty-second-story window of the Mandalay Bay Hotel, killing 59 people and wounding more than 500 people. Many users of social media quickly labeled the event an act of domestic terrorism and attempted to tie the shooter with one political affiliation or another, while others noted he had no apparent ties to international terrorist organizations. After more than a year of investigation, the FBI determined Paddock was “not driven by a religious, social or political agenda, nor did he have an accomplice” and thus there was no justification for classifying the shooting as a hate crime or domestic terrorism (Romo 2019a). This result is not surprising because often it is difficult to discern a single motivation in such mass killings. There are frequently multiple overlapping motives, including the desire for notoriety and to emulate or exceed the mass slaughter of other deadly rampages, and/or to die and go out in a “blaze of glory.” Regardless of how Paddock is ultimately labeled, the mass violence he perpetrated spread terror well beyond the boundaries of Las Vegas. Scott Shane has suggested that “mass killing of innocents, even on the scale of Las Vegas, does not automatically meet the generally accepted definition of terrorism, which requires a political, ideological or religious motive” (Shane 2017). But perhaps the time has come for legislation that defines mass killings as presumptive evidence of terrorism—that is, as an adequate criterion in itself. These acts are intended to create terror in a citizen population, whether it is people attending a public event, students in a school, or so on, even if there is no political, ideological, or religious motive. Even if such legislation were enacted, traditional motives that define an act as terrorism still would be required for cases that did not involve mass killings, but proof of such motives would not be required for mass killings. The United States has been expanding and escalating social control by developing and implementing criminal justice protections for vulnerable

Conclusion and Implications

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Increasing Social Control

populations in the United States, especially minorities defined by ancestry (first emphasizing Blacks and now including Hispanics and Asian Americans) and religion (first emphasizing Jews and now including Muslims). Historically, Blacks have been the primary targets of what we now recognize as hate crime and domestic terrorism. Civil rights legislation focused on addressing the disproportionate victimization of Blacks, a trend that has continued with hate crime and domestic terrorism legislation. Even as this inequity has yet to be effectively remediated (see Chapters 5 and 6), in the last several decades new communities—Hispanics, Muslims, and people of Asian descent—have come to occupy more central positions as the targets of hate and terror. Over the next several decades, our country’s progress in developing a just society will depend on how we deal with the victimization of disadvantaged populations. In addition to the increases in hate crime and domestic terrorism by individual citizens, there has been an increase in organized hate/terrorism crime. For example, the US-Mexico border is now being patrolled by heavily armed groups who refer to themselves as “militias” (e.g., the United Constitutional Patriots [UCP]). Although the UCP leader (who previously had been arrested for impersonating a law enforcement officer) was arrested for UCP activities in April 2019, the Department of Defense estimates that there still are hundreds of members of domestic terrorist organizations illegally detaining and threatening immigrants who have crossed the border (or are US citizens caught in their raids) (Reyes 2019). On the one hand, all states have laws that preclude militia from calling themselves forth to do the work of policing, law enforcement, or soldiering. And some states have additional prohibitions against parading in public with firearms, intimidating with weapons, or conspiracy to deprive others of exercising their civil rights (e.g., voter intimidation at a polling place). On the other hand, the United States also has a long history of White power and militia vigilantism, with a few local sheriffs supporting private militia action and some militia groups espousing the view that there is no legitimate law enforcement authority above that of the local sheriff. Indeed, there have been several instances in the United States where militia members were treated as neutral arbitrators of the law, or as insurers of law and order.2 Future developments will determine whether we continue to enact and implement criminal justice policies and practices that condone bias-driven government action under the guise of antiterrorism. We have seen government-sponsored pushback against hate crime legislation (i.e., where some purported “other” is perceived and treated as a victim), accompanied by government expansion of antiterrorism initiatives and legislation (where “we” are perceived and treated as the victim). There is likely to be continued resistance to such policies, from both the public at large and government actors.3 But the violence involved in White supremacist threats or

Hate Crime and Domestic Terrorism

37

attacks could shift what is defined as terrorism because an increasing number of officials and citizens describe these attacks as hate crimes or domestic terrorism (e.g., Lucas 2017). 1. This social control strategy is akin to sex offender registries, which have faced many constitutional challenges. The institutional diffusion of this strategy likely will be subject to the same considerations that are leading to reform of sex offender registries (see Chapter 7). 2. For example, in October 2020 thirteen people were charged in an alleged domestic terrorism plot to kidnap Michigan governor Gretchen Whitmer. However, the local sheriff in Michigan, who was shown in photos at rallies with some of the people arrested, defended the right of the militia to enforce the law, characterizing the event as a possible citizen’s arrest, rather than an attempted kidnapping (Prignano 2020). 3. In 2021 Republican lawmakers in Iowa and Oklahoma passed legislation “granting immunity to drivers whose vehicles strike and injure protesters in public streets” (Epstein and Mazzei 2021). These new laws likely will be challenged in the courts and may be overturned, but this remains to be seen. These and other laws represent “a wave of new anti-protest legislation . . . in the . . . months since Black Lives Matter protests swept the country following the death of George Floyd” (Epstein and Mazzei 2021).

Notes

Table 2.1 Stage

Hate Crime

Overview of Social Control Development for Hate Crime and Domestic Terrorism

Policy formation– expansion Policy implementation– expansion Policy formation– expansion Policy implementation– expansion Policy implementation– expansion Policy formation– expansion

Year

Legislation/Action

1968 Title 1 of Civil Rights Act 1990 Hate Crime Statistics Act

1990 Violence Against Women Act 1992 N/A 1993 US Supreme Court case of Wisconsin v. Mitchell 1994 Hate Crime Sentences Enhancement Act

Function of Action

Criminalizes anti-civil rights violence Authorizes US law enforcement collection of data on hate crimes Adds gender as a hate crime category FBI starts collecting statistics on hate crime

First case to uphold a bias-oriented criminal statute Complements state hate crime penalty-enhacement statutes in the 1994 federal crime bill

continues

38 Table 2.1 Stage

Continued

Hate Crime

Year

Legislation/Action

Function of Action

Policy formation– expansion

2009 Hate Crimes Prevention Act

Policy formation– expansion

2009 Hate Crimes, Prohibitions and Protected Classes (Md. SB 151) 2016 Louisiana H.B. 953, Louisiana is first state to Reg. Sess. (La. 2016) extend hate crime protection to police and first responders 2021 Covid-19 Hate Addresses hate crimes during Crimes Act Covid-19 pandemic, especially against Asian Americans; strengthens hate crime enforcement at the federal and local level

Policy formation– expansion Policy Formation– expansion

Domestic Terrorism

Policy formation– expansion Policy formation– expansion

1986 Omnibus Diplomatic Security and Antiterrorism Act

1990 Biological Weapons Anti-Terrorism Act

Policy implementation– expansion

1992 US Code of Federal Regulations (18 U.S.C. § 2331)

Policy formation– expansion

1996 Antiterrorism and Effective Death Penalty Act

Authorizes federal action to investigate crimes based on actual or perceived sexual orientation, gender identity, disability, or gender, in addition to crimes based on race, ethnicity, and religion Maryland is first state to enact hate crime protection for the homeless

Criminalizes terrorist acts committed against US diplomats or citizens traveling outside the US Expands the definition of terrorism to include those taking place in the US Provides first definition of terrorism as unlawful use of force and violence to intimidate or coerce a government or the civilian population in furtherance of political or social objectives; makes FBI the lead agency for investigating terrorist activities Expands the definition of terrorism to include those inspired by domestic ideologies

continues

39 Table 2.1 Stage

Continued

Domestic Terrorism

Policy formation– escalation and implementation

Policy formation– expansion

Policy formation– expansion

Year

Legislation/Action

2001 Executive Order 13224

Function of Action

Authorizes the US government to (1) designate individuals or entities as terrorists or terrorist organizations; (2) block the assets of foreign individuals and entities that commit or pose a risk of committing acts of terrorism or provide support, services, or assistance to terrorists and terrorist organizations 2001 USA PATRIOT Act Defines domestic terrorism paralleling the criteria of international terrorism, but without requiring participation in or inspiration by a terrorist organization 2017 Passage of a resolution Defines neo-Nazi by the Illinois State organizations as domestic Senate terrorist organizations

3 Gun Violence and Mass Shootings

been many attempts to expand and escalate criminal justice safeguards against this violence. These reform agitation efforts have been only modestly successful due to counteragitation by gun industry representatives and gun industry supporters who receive funding from the gun industry.1 Public concern and reform agitation have increased dramatically over the past few decades in response to a new threat to public safety—mass shootings in which many innocent victims are injured or killed in public places like churches, schools, and entertainment venues. Following such events, there has been major public outcry (with heavy media coverage) demanding that something be done. Multiple possible solutions have been suggested, and politicians have made commitments to implement solutions. Then gun industry supporters have provided counternarratives indicating that nothing needs to change. Media coverage has subsided, with few if any reforms implemented. Until the next mass shooting kicks off another cycle of death, outrage, and inaction. This sequence of events is not common outside the United States, where mass shootings, although less common, generate swift and decisive action to expand and escalate criminal justice reforms to control gun violence.2 The lack of US action in response to mass shootings cannot be understood without first understanding the larger situation of gun violence and gun violence prevention in the United States. The mass shootings covered in national media, though shocking and horrific, represent only a small part of gun violence in the United States. Roughly 100 people are killed by guns every day in the United States. Only a little more than a third of these

Public concern with gun violence is long-standing, and there have

41

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Increasing Social Control

gun killings are homicides, with most of the remainder being suicides, and about 500 people are shot and killed by accident every year, a number that usually surpasses the combined deaths and injuries of mass shootings (Emamzadeh 2018). Gun violence also results in nonfatal injuries, most often to persons other than the shooter (attempted suicide by shooting is almost always successful); over 2001–2017 an annual average of over 50,000 nonfatal gunshot injuries were treated in emergency rooms (Centers for Disease Control and Prevention 2017b). Despite this massive and unrelenting carnage, there has been little recent gun violence prevention legislative or policy reform at the federal level (although there is more action at the state and local levels; see, for example, Abt 2019). Thus, it is not surprising that even mass shootings, the most severe form of gun violence, do not trigger criminal justice reforms. The plan of this chapter is to first describe the different types of gun violence (i.e., homicide, suicide, and accidental shootings), the factors associated with the different types of gun violence, and the strategies that have been implemented or proposed to prevent gun violence. Given the focus of this book, we discuss possible causes of gun violence in general and mass shootings in particular only to the degree that they are relevant considerations in changing the social control systems targeting these public problems.3 Obviously, the goal of criminal justice reforms is to prioritize the most important and influential causal factors in gun violence—factors that, if addressed, would have the greatest impact on reducing gun violence. But institutional constructionism also considers the feasibility of various reforms (e.g., technical, logistical, and financial barriers; public opinion; politicians’ and corporate conflicts of interest; and constitutional issues) and the role of these factors in social policy reforms. Table 3.1 (at the end of the chapter) provides an overview of key reform agitation events and criminal justice policy reforms over the past twenty-five years. Finally, we consider alternative scenarios of how the issues discussed are likely to play out in the near and medium future. Gun violence is relatively easy to define—firearms are used and there is death and/or injury to one or more persons (here we do not include gun violence against nonhumans). In considering gun violence prevention strategies, it is important to distinguish the different types of shooting events, which may be amenable to different prevention strategies. Killings include criminal homicides (e.g., using a gun to kill another intentionally or recklessly), suicides (using a gun to kill oneself intentionally), and accidents (killings without intent). Mass shootings are only one type of homicide and may require different prevention strategies than other forms of homicide and other types of shootings.

Background

Gun Violence and Mass Shootings

43

There is no single accepted definition of mass shootings, but there are several key elements (National Criminal Justice Reference Service 2018). Most common is the idea that the event comprises a single incident (perhaps including multiple sites), although there may be multiple shooters. Most definitions expand the number of incidents included by using as a criterion a relatively small number of casualties (“small” relative to the events that receive highest media coverage), most commonly four casualties other than the shooter(s).4 Conversely, most studies restrict the types of events that are included; for example, they do not include gang and drug incidents or family and intimate partner incidents (National Criminal Justice Reference Service 2018). Omission of gang- and drug-related incidents focuses on incidents in which the shooting is more than an adjunct to other criminal activity, whereas omission of family- and intimate-related incidents focuses on public shootings rather than those occurring in private residences. Thus, data on mass shootings underestimate the number of shootings that result in multiple victim casualties. The database maintained by Mother Jones defines mass shootings as those occurring in a public place, where the motive appears to be “indiscriminate killing” by a lone shooter who killed at least three people (Follman, Aronsen, and Pan 2019).5 This definition fits the type of situation that most people regard as a mass shooting, although in terms of body count these incidents might be termed more precisely as multihomicide shootings. Using a common definition of these events over 37.5 years from 1982 through mid-2019, there were 94 mass shooting incidents in the United States, with 849 deaths and 888 nonfatal injuries. (See Table 3.2 at the end of the chapter.) These numbers pale compared to the 20,000+ annual gun suicides and 10,000+ annual gun homicides (Centers for Disease Control and Prevention 2017a). Thus, gun violence prevention strategies that target only mass shootings will not have a major impact on gun casualties. In contrast, strategies to prevent multiple types of gun violence likely will reduce mass shooting casualties. The temporal trends in mass shootings versus gun homicides in the data above also reveal major differences. From 1999 to 2017—the earliest and latest years for which both Mother Jones and the Centers for Disease Control and Prevention (CDC) provided data—gun homicides increased by 34 percent. Although mass shooting incidents remained stable, resulting deaths increased by 136 percent (from 42 to 99), and total casualties increased by 651 percent (from 89 to 681). Thus, the increase in mass shooting carnage resulted from an increased number of victims per incident. The latter findings can be attributed primarily to an increase in firepower for weapons used in later mass shootings, including use of so-called “military-style assault weapons” with large-capacity ammunition magazines. The increases by decade (or year) in mass shooting casualties were

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Increasing Social Control

not monotonic; all indicators were lowest in the 1980s, modestly higher in the 1990s and 2000s, and dramatically higher in the 2010s. Unless external factors influence this trend (e.g., gun violence prevention strategies), we can expect future increases in the consequences of mass shootings. This chapter examines several different criminal justice strategies for gun violence prevention. These fall into two major categories: (1) gun proliferation (i.e., increasing the number of people possessing and carrying weapons for deterrence and self-defense) and (2) gun regulation (adopting policies to make gun possession, carrying, and use safer). In discussing each type of strategy, we consider the role of causal factors in gun violence and attempt to identify how the prevention strategies deal with those causal factors. We also consider how the different strategies complement or conflict with each other. The basic concept underlying gun proliferation policies is to increase the number of people other than law enforcement officers who have guns available, including to engage in “self-help” or vigilante activity. During earlier times (prior to the universal formation of local law enforcement agencies, i.e., police, sheriffs, etc.), vigilante law enforcement was often the only crime control mechanism that was always immediately available. Selfappointed (and perhaps informally recognized) persons would exercise force in response to (formally) illegal or (informally) disapproved behavior. The use of force would depend on the ultimate threat of gun violence against the identified perpetrator. At times, groups of citizens (posses, lynch mobs, etc.) would form to enforce perceived justice. With universal formation of local law enforcement agencies, vigilante justice was defined legally as illegal behavior. In fact, much gun violence can be regarded as vigilante justice—that is, one group or person feels that they have been the victim of injustice and takes matters into their own hands. “Revenge” killings and “blood feuds” would be examples. Interestingly, mass shootings have played a role in reinvigorating the concept of vigilante justice in the United States. In the aftermath of the 1999 mass shooting at Columbine High School, people began to speculate whether staff in the school building could have used guns to stop the students who performed the shootings that killed twelve students and employees. This meme was picked up by gun industry groups and support organizations, such as the National Rifle Association (NRA). The NRA used this argument to reinforce their message that citizens not only should be allowed to possess guns and carry them in public, but should be encouraged to do so, and this behavior should be facilitated by government policies. For example, in 2019 Florida became the ninth state to allow school employees to carry guns on K–12 school grounds and established a training program for persons

Gun Proliferation

Gun Violence and Mass Shootings

45

carrying guns on campus. Notably, the school district in which the Parkland mass shooting occurred decided not to arm their teachers, saying, “We do not believe that arming teachers is the best way to make our schools safe” (Wamsley 2019).6 Generally, neither law enforcement officials nor public school principals support arming school teachers or administrators (Chrusciel et al. 2015). And a national public opinion survey revealed that less than half of gun owners and only a quarter of gun nonowners support such policies (Barry et al. 2018). This conceptualization of gun carrying and use has been at the core of two major state criminal justice policy initiatives: “right-to-carry” (and “open-carry”) legislation and “stand-your-ground” legislation. Legislation regarding gun carrying in public increases the number of guns present in public settings, which could decrease shootings and killings as claimed by gun industry supporters, or could increase shootings and killings as claimed by gun regulation advocates. Similarly, stand-your-ground legislation (including “castle-doctrine” laws that eliminate the legal requirement to retreat before using deadly force in one’s own castle/home) encourages people to use their guns when they feel threatened, which could either increase or decrease shootings and killings, or at least transform a potentially criminal shooting homicide into an instance of self-defense. Rather than reducing gun violence, research suggests that these laws may increase homicides (Crifasi et al. 2018). Cheng and Hoekstra (2013) found that castle-doctrine laws were associated with a 6–11 percent increase in homicide rates. And McClellan and Tekin (2012) found that stand-your-ground laws were associated with a 6.8 percent increase in homicide rates, mainly driven by higher (14.7 percent) homicide rates by White males.7 The latter finding is consistent with the widely publicized killing in February 2012 of Trayvon Martin, a Black adolescent male, by George Zimmerman, a White male vigilante in Florida, a stand-your-ground state. While these findings are not directly relevant to mass shootings, a small percentage increase in the number of non–mass shooting gun homicides is likely to more than offset even a substantial decrease in the number of mass shooting deaths (because the base rate of non–mass shooting homicides is hundreds of times as high as mass shooting homicides). Gun industry supporters make no claims regarding the effect of these laws on numbers of suicides or accidental killings (which together make up the majority of shooting deaths), and it is hard to imagine a mechanism by which these policies would achieve a reduction. There is significant public support for reducing gun violence, and for “reasonable, evidence-based policies” (Crifasi 2018). There are many gun

Gun Regulation

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Increasing Social Control

violence prevention regulatory strategies, with different regulatory targets, different barriers, and different levels of public support. However, for simplicity the commonly studied and used strategies can be classified into a few categories (Santaella-Tenorio et al. 2016): potential purchaser screening and permit/licensing; regulation of gun sellers; regulation of weapon technologies (e.g., assault weapons, large-capacity ammunition magazines, armor-piercing ammunition) and safety equipment (e.g., loading indicators); regulation of gun storage; seizure of weapons with cause (e.g., “red flag” provisions to remove weapons from a person reported to be a danger to themselves or others); and increased penalties for gun offenses, including use of a gun in commission of a crime. These strategies can be implemented separately or in combination with each other. The goals of these strategies differ, and the targets may include gun owners and/or gun sellers. One major goal is a reduction in the number of guns (antiproliferation policies) and access to ammunition, which is not surprising given that there are more guns than people in the United States (Ingraham 2018). The United States owns almost half of the world’s nearly one billion civilian guns, with only 5 percent of the world’s population, and almost 50 million US households contain a gun owner. Moreover, 3 percent of US adults own half of the US guns—that is almost twenty guns each. However, antiproliferation gun policies often are framed in terms of limiting the types of persons allowed to possess guns (e.g., minors; the mentally ill; persons with a record of gun offenses, assault, domestic and intimate partner violence, or a record of drug or alcohol offenses).8 Nevertheless, overall level of gun ownership in the United States is associated with higher homicide rates; for each 1 percent increase in household gun ownership, there is a 0.9 percent increase in the gun homicide rate (Siegel, Ross, and King 2013). Enacting laws that regulate and reduce gun ownership results in a reduction in gun homicides, and repealing such laws results in an increase in gun homicides (Rand Corporation 2018; Santaella-Tenorio et al. 2016). Higher levels of gun ownership in the United States also are associated with higher suicide rates (Miller et al. 2006), and laws limiting gun possession (especially “red flag” gun seizure laws) in the United States and other countries reduce gun suicides (Reisch et al. 2013; Gjertsen, Leenaars, and Vollrath 2014), although these reductions are partly offset by increases in suicide by other means (Kivisto and Phalen 2018). While accidental shooting fatalities are less than 2 percent of all shooting fatalities, higher levels of gun ownership in the United States also are associated with higher accidental gun death rates (Miller, Azrael, and Hemenway 2002), but there is little evidence regarding the effect of gun reduction policies on accidental shootings. However, the US Government Accountability Office (General Accounting Office 1991) estimated that use of safety devices (safety locks and loading status indicators) could substantially reduce accidental gun deaths and injuries, especially those involving children.

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As noted above, mass shooting fatalities are even less frequent than accidental shooting fatalities; this makes it difficult to assess the impact of antiproliferation gun policies on mass shooting death rates. However, state and federal assault weapon bans both substantially reduced mass shooting fatalities (Gius 2014; DiMaggio et al. 2019).9 Unfortunately, when the 1994 federal ban on assault weapons expired in 2004, it was not reauthorized, and the sales of these weapons have soared in the interim. Moreover, assault weapons and/or high-capacity ammunition magazines were used in about half of all mass shooting incidents (Follman, Lee, and Aronsen 2013) and accounted for the majority (86 percent) of mass shooting fatalities. Incidents involving assault weapons and/or high-capacity ammunition magazines resulted in approximately 150 percent more shooting victims and approximately 50 percent more deaths than those that did not involve such weaponry (Everytown for Gun Safety 2015). The strongest evidence for the success of gun regulation policies is provided by comprehensive strategies (Santaella-Tenorio et al. 2016). Comprehensiveness is reflected in two measures of policy implementation: strictness of the laws and implementing multiple policies within a short time period. Strictness of state and local laws was associated with reductions in shooting homicides and suicides in the United States (Fleegler et al. 2013). The 1996 implementation of national comprehensive gun regulation by Australia was associated with a reduction in gun deaths, especially suicides, as well as the elimination of mass shooting deaths (Chapman et al. 2006). The state of California represents a US case of comprehensive gun regulation (Law Center to Prevent Gun Violence 2013). In 1993, California had the sixteenth highest state gun death rate, with 5,500 killings, which was 15 percent higher than the national average. Seventeen years later, the gun death rate in California had declined by 56 percent, approximately twice the national decrease, with California having the forty-first highest state gun death rate. California also had a low rate of guns recovered from crimes in other states and imported into Mexico. These results were achieved through passage of over 30 state gun regulation laws and more than 300 local gun regulation laws, covering the full range of categories of gun violence prevention regulatory strategies described by Julian SantaellaTenorio and coauthors (2016). In the words of legal expert Bryan Ciyou, “California is at the very top end of firearms regulation” (Smyth 2013).10 However, in June 2021, a federal district court judge in San Diego in Miller v. Bonta (Case no. 19-cv-1537 (S.D., Cal.)) overturned the thirtyyear-old assault weapons ban in California, ruling that the prohibition violates the Second Amendment. The opinion strongly misstates the facts about the dangers of the AR-15 assault rifle, stating, “like the Swiss Army knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment.” The decision disregarded statistics presented by the state of California “showing that assault weapons

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Increasing Social Control

and semiautomatic weapons with large capacity magazines . . . account for 22–36% of gun crimes [and] are used in 57% of firearm mass murders” (Edelman, London, and Streit 2021). In late June 2021, the US Court of Appeals for the Ninth Circuit issued a stay of the ruling pending an appeal by the state of California (Kim 2021). This leaves the assault weapons ban in effect while the litigation continues. In response to the August 2019 shootings in El Paso and Dayton that killed thirty-one and injured fifty-three people, Senator Elizabeth Warren announced a plan for a comprehensive national gun violence prevention program, with the goal of reducing US gun deaths by 80 percent. Warren’s plan included universal background checks and licensing for gun owners, “red flag” laws to target high-risk individuals, closing of loopholes regarding nonlicensed gun sales, banning of assault weapons and high-capacity ammunition magazines, a federal gun buyback program, policing reform, and an end to special legal protections for gun manufacturers (Lopez 2019). David Hemenway, director of the Harvard Injury Control Research Center, stated, “I think hardly anything is a big deal [by itself]. I’m convinced that large numbers of small things add up” (Lopez 2019). Warren wants to make this a multiyear campaign, using federal funding to research the effects of policy changes and implement necessary adjustments. She compared her approach to that which has been used to reduce motor vehicle injuries, resulting in an 80 percent reduction in per-mile driving deaths and saving 3.5 million lives (see our discussion below on the diffusion of motor vehicle regulatory strategies to guns). In addition to the gun violence prevention programs discussed above, there are a number of alternative approaches that have received varying degrees of consideration. Some were significant options that have faded (e.g., “smart” guns); others have been floated as ideas without generating significant interest (e.g., modifying media reporting of mass shootings). Finally, a couple of ideas that have emerged recently (suing gun manufacturers and/or sellers and regulating guns like motor vehicles) would benefit from debate. In addition to describing these options, we discuss the rationales and barriers for each alternative.

Promising Alternative Gun Violence Prevention Strategies

Technological Strategies Smart guns were a linchpin of gun regulation plans in the 1990s. These weapons would be usable only by a single person; each gun would be personalized to its owner. One such weapon system had been introduced to the international market, and many gun manufacturers had investigated one or more technologies to achieve the goal of making guns unusable by anyone who was not an authorized user (Mosendz, Carr, and Weinberg 2019). This

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49

would make gun registration more meaningful because the registered owner of a gun would be the only one who could use it. No longer would someone be able to sell or buy a gun on the black market or use one of the 38,000 guns stolen each year (Hemenway, Azrael, and Miller 2017) for anonymous or surreptitious use. This should reduce homicides, suicides, and accidental shootings and enhance law enforcement efforts, including apprehension of persons responsible for illegal shootings. Yet two decades later there had been no progress on this front, and President Barack Obama issued a challenge to technology companies to reinvigorate the campaign to develop smart gun technology (Mosendz, Carr, and Weinberg 2019). The failure of this approach tells much about the issues underlying failure to achieve effective gun regulation. The first issue is technical—developing an acceptable technology, one which would permit dependable use of the gun while restricting unauthorized use—requires substantial technological research. Such research would be conducted by a private company only if it represented an opportunity for a substantial return on investment (i.e., profit). The potential profit would result from smart guns being a consumer preference and/or a necessity in order for a gun purchase to be legal; complete market dominance would be achieved if only smart guns could be purchased for legal use. Given the apparent lack of corporate sector interest in doing the necessary research and development, federal funding might be required to stimulate activity. Thus, the second issue is funding for research. However, getting legislation passed to fund this effort would require legislative support, and that is a significant barrier to improving gun safety. In particular, gun industry supporters (e.g., the NRA) provide campaign contributions to legislators who vote against attempts to improve gun safety or otherwise prevent gun violence. Moreover, the NRA and similar organizations are willing to fund political campaigns of gun industry supporters to challenge gun violence prevention advocates. And gun industry supporters have threatened to boycott gun manufacturers who want to develop smart guns and retailers who have offered them for sale (Pokin 2014). Yet, over half of those surveyed would consider buying a smart gun, and twice as many gun owners said they would be willing to purchase such a gun than would be unwilling, even though gun industry supporters downplay consumers’ interest in gun safety (Wolfson et al. 2016). And gun industry supporters’ criticisms of these weapons systems are easily countered—for example, the idea that unlocking a gun may fail when in a crucial shoot-out situation would not be a problem for law enforcement officers, who could be exempted from smart gun requirements.

Incentivizing Safety Within the Gun Industry One might assume that the gun industry would incentivize safety in much the same way as the health-care industry. Malpractice insurance protects

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Increasing Social Control

health-care providers from lawsuits resulting from deaths and injuries, and pharmaceutical and medical-device manufacturers factor the projected costs of class action suits into their budgeting processes. However, the gun industry does not need to concern itself with such costs because the Protection of Lawful Commerce in Arms Act (PLCAA, 15 U.S.C. §§ 7901–7903, Public Law 109-92), passed by Congress in 2005, makes gun manufacturers and sellers immune to lawsuits seeking damages for gun violence. By eliminating the financial motivation for gun industry concern about safety, guns can be sold for much less and sold more frequently than what would be possible if the gun industry had to protect its profits from massive damages awarded in lawsuits. Much like other manufacturers and retailers, gun manufacturers and sellers can be held liable for damages resulting from defective products, criminal misconduct, and “negligent entrustment” (when they have reason to know a gun is intended for use in a crime). Nevertheless, many have interpreted PLCAA as providing blanket immunity for casualties by properly working guns that were sold legally. For example, in October 2016 the Connecticut Superior Court dismissed a lawsuit filed by the families of victims in the 2012 Sandy Hook school shooting against the manufacturer, wholesale distributor, and retailer of the semiautomatic rifle used in the shooting. However, in March 2019 the Connecticut Supreme Court reversed the lower court’s ruling, allowing plaintiffs to continue their suit against the manufacturer of the assault weapon used by the shooter (Barbash 2019). This ruling was based on the narrow grounds that the advertising of the weapon as “the ultimate combat weapon system” with “military-proven performance” was appealing to civilians playing war and people contemplating carrying out rampages with military-like firepower. The ruling stated that the claims against the gun manufacturer fell within an exception to PLCAA because the manufacturer’s reckless ads promoted activity that was illegal under Connecticut’s Unfair Trade Practices Act (Shearer 2019). In July 2020, Remington Arms Company, manufacturer of the weapon used in the Sandy Hook shooting, filed for bankruptcy, effectively stalling the lawsuit (Friedman 2020). The actual outcome of the suit remains to be seen, but if successful it could establish a foundation for other similar class action suits against the manufacturers of guns used in killings, which likely would spur change in the marketing of weapons in order to avoid the substantial damages that could result. Within a few months of the Connecticut Supreme Court decision in the Sandy Hook case above, another lawsuit was filed against the manufacturers of the types of assault weapons used in the 2017 Las Vegas mass shooting. This suit claimed that these weapons are designed to be cheaply and easily modified by ordinary citizens to convert them into fully automatic military-style instruments of mass killing that are prohibited by federal law

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(Baker 2019). In this case, Prescott v. Slide Fire Sols, LP (D. Nev. 2019), the federal district court in Nevada denied in part a motion to dismiss the lawsuit that was filed by the manufacturer of bump stocks used by the shooter in the Las Vegas shooting. The court ruled that an exception applied to immunity under PLCAA and that the plaintiffs had plausibly alleged a claim for negligence. Again, this filing also is based on narrow grounds to avoid conflict with Second Amendment freedoms, and it remains to be seen how the courts will interpret relevant law.11

Borrowing Existing US Product Regulatory Systems One barrier to enacting gun regulation measures is the perception that these measures stigmatize gun owners by singling them out for regulation. But guns are not the only product subject to a comprehensive set of regulatory measures; motor vehicles, which in the United States annually kill approximately as many people as guns, are strongly regulated because of their potential for death and injury even when used as intended. Nobody considers such regulations to be oppressive, and even gun industry supporters accept the need for such motor vehicle regulatory measures. Motor vehicle regulations include the following: ownership of motor vehicles for use in public settings must be registered; operators must regularly pass licensing requirements (including tests of knowledge of laws regarding operation, safety training, demonstration of competent use); manufacturers and sellers are regulated regarding the safety of their products; products must be periodically inspected and certified; operators must follow limitations on use (e.g., no use while under the influence of drugs or alcohol); and operators must have personal insurance to cover injuries and damages resulting from improper operating. (See Table 3.3 at the end of the chapter for a partial description of how these regulatory measures might apply to guns.) Jay Dickey—a former Republican US representative who led the successful campaign to dismantle the CDC research effort to build an evidence base to advance the science of gun-violence prevention “because conservatives had concluded that it was aimed at gun control and not gun violence”—has since come to realize that “our nation does not have to choose between reducing gun-violence injuries and safeguarding gun ownership. Indeed, scientific research helped reduce the motor vehicle death rate in the United States and save hundreds of thousands of lives—all without getting rid of cars” (Dickey and Rosenberg 2015).12 Some gun violence prevention advocates have argued that the best way to facilitate gun violence prevention is to recruit the powerful insurance lobby as a means of counteracting the financial power of the gun industry lobby (Andavolu 2018; Kessler 2015). In response to the July 28, 2019, mass shooting at the Gilroy Garlic Festival in California that resulted in four deaths and thirteen other injuries, mayor Sam Liccardo of nearby San

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Increasing Social Control

Jose announced plans for the city to require liability insurance for gun owners, and gun owners will be required to pay a fee to offset the costs of gunrelated crime and violence; this policy was recently enacted by the San Jose city council (Kaste 2022). Liccardo said that he hoped that this measure would inspire other cities to do the same (Cowan 2019). This approach is based on the fact that the insurance industry has wellestablished models for assessing risks and their associated costs and has developed systems that reward risk reduction, such as reducing premiums for low-risk customers. Under current law, individual gun owners and/or users may be held liable for damages resulting from negligence or intentional misuse, but few gun owners possess the personal assets to compensate victims adequately. Although some gun owners might not purchase required gun insurance (after all, about one in eight drivers is not insured; Leefeldt 2017), most gun owners are law-abiding citizens. Because most civilian gun owners do not experience situations in which someone is injured by their weapon, law-biding gun owners would subsidize payments to victims of unsafe gun use without substantial cost to any single legal gun owner. This practice would be similar to that in which law-abiding owners/drivers subsidize payments to victims of motor vehicle accidents without substantial cost to any single car owner/driver. Thus, gun owners who support gun ownership could demonstrate their support not only for Second Amendment rights, but also the “inherent and inalienable” right to “life, liberty, and the pursuit of happiness” as defined in the US Declaration of Independence. Mass shootings are the most visible and dramatic instances of gun violence, and the United States leads the world in both their frequency of occurrence and level of casualties. Yet these incidents are just the tip of the iceberg; mass shooting deaths represent only one day’s worth of the gun deaths that occur every year. US gun deaths and injuries far outstrip those of other countries, but one misconception is that the United States has more homicides than all other countries because crime is higher here and weapons are used in those crimes, thus the belief that punishment of gun use during crimes should be the central focus of gun violence prevention. However, the United States does not have a higher rate of property crime than other developed countries; there are more criminal homicides in the United States during property crimes because guns are more likely to be used in property crimes in the United States. For example, during 1992 London had many more burglaries and robberies than New York City, but New York City had over fifty times as many homicides during those crimes. In fact, twice as many US gun killings resulted from arguments as from suspected or actual felony crimes (Sommer 1997).

Conclusion and Implications

Gun Violence and Mass Shootings

53

Another misconception is that the public does not support gun violence prevention through gun regulation. But a majority of US citizens, and in most cases a majority of gun owners, support a broad range of gun regulation measures (Barry et al. 2018). This misconception is not surprising because, in an attempt to provide so-called “fair and balanced” reporting, much media coverage of gun violence presents the position of gun industry supporters, giving the impression that this is a widely shared perspective. And these gun industry supporters routinely cite Second Amendment guarantees as ironclad prohibitions against any form of gun regulation. However, some have suggested that it is time to “decouple the argument over the individual [sic] gun right from the argument over gun violence” because Second Amendment guarantees do not mean there is no need to regulate firearms, and courts (all the way to the US Supreme Court) have recurrently ruled that government gun regulation is not prohibited (Sargent 2017). For example, in District of Columbia v. Heller, 554 U.S. 570 (2008), a deeply divided US Supreme Court held that the Second Amendment to the US Constitution protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The court made it clear, however, that their recognition of this Second Amendment right did not mean that people have “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Unfortunately, the factors that have kept the United States from implementing a regulatory system that would prevent gun violence are not unique to guns. The rich and powerful gun lobby expends considerable effort to avoid regulation that might interfere with the so-called “free-market” goal of maximizing gun industry profits. Gun industry donations to their lobbying organizations (e.g., the NRA) have generated substantial funding for politicians who will vote against all gun violence prevention initiatives, in much the same way as support organizations for polluters use monetary contributions to lobby against clean energy and other forms of pollution control. It is difficult to see how politicians who are receiving funds that allow them to stay in political power would vote to eliminate that source of funding. However, there have been changes since the Parkland school shooting inspired students to advocate for gun violence prevention. Several companies have ended their partnerships with the NRA, and new gun violence prevention organizations have received substantial public funding and support. And the Trump administration took action to ban “bump stocks”—the device used in the 2017 Las Vegas mass shooting that turns an assault weapon into a continuous firing machine gun (Al Jazeera 2019). But cities across the United States are experiencing an epidemic of gun violence and increases in violent crimes. In June 2021, President Biden announced his plans for reducing gun violence, which includes tougher enforcement of federal laws on gun sellers who violate gun laws, additional

54

Increasing Social Control

support for local law enforcement to address the recent crime increases, investing in community violence intervention programs, and assisting the previously incarcerated to reenter the community. On the other side of the ledger, in May 2019 Florida approved the right of teachers to bring weapons onto school campuses (Wamsley 2019), a measure that had the highest level of public nonsupport of all gun policy reforms rated in a national survey (Barry et al. 2018). If gun violence prevention policy continues its historical pattern, the current public outrage and agitation for reform will return to inaction, the gun industry and its lobbyists will continue dispensing money to politicians to influence their votes, and the public will return to its previous level of perceived powerlessness and alienation from the ideals that led to American independence, including the right to be safe from deadly and unjust government (in)action. As Dan Hodges wrote in referring to the 2012 attack that killed twenty young students at an elementary school in Connecticut, “In retrospect Sandy Hook marked the end of the U.S. gun control debate. . . . Once America decided killing children was bearable, it was over” (Fisher and Keller 2017). On the other hand, school-based mass shootings have spurred a different type of response because of the different place that schools and their primary occupants, our children, occupy in the national conscience. School shootings, and shootings of children generally, have a much greater emotional effect on the citizenry, as parents and potential parents experience or anticipate the emotional trauma of their children being killed. One of the largest and most powerful gun reform advocacy groups is Sandy Hook Promise, an organization started by parents of children killed in school shootings. Relatedly, the shooting at Marjory Stoneman Douglas (MSD) high school in Parkland, Florida, gave rise to Never Again MSD, a studentled social movement for gun reform. In essence, the Parkland students declared they lived in fear of being killed and took to the streets to protest the apathy of adults who allowed these killings without taking action (Witt 2018). Given the emotional value of children to their parents, this movement generated greater media coverage than the response to previous mass shootings (Harris 2018a). It remains to be seen what impact this will have on efforts to prevent mass shootings in schools and elsewhere, as well as other kinds of gun violence. However, less than a month after the MSD shooting, Florida lawmakers approved comprehensive gun control measures—the first such law to pass in over twenty years—and the Washington Post attributed its passage to the student-led organization (Washington Post Editorial Board 2018). To paraphrase Dan Hodges (Fisher and Keller 2017), perhaps killing our children is not “bearable” and that will trigger evidence-based criminal justice policies that seek to prevent gun violence rather than merely punishing gun violence perpetrators.

Gun Violence and Mass Shootings

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1. In this chapter, we will refer to those who support deregulation of guns for use by citizens as “gun industry supporters.” This includes representatives of the gun industry (gun equipment/supply manufacturers and sellers) as well as gun support organizations that receive funds and other sources of support from the gun industry. It also includes supporters of gun deregulation who are not members of gun industry support organizations. These people and organizations often are referred to as “gun rights” supporters, but we find such a designation inaccurate because those who identify as gun violence prevention supporters also accept constitutionally guaranteed gun rights, but not deregulation of the gun industry. While gun industry supporters may pay lip service to gun violence prevention, they oppose any government or public activity that would involve regulation of the gun industry. Indeed, most of the people who talk about banning all guns (“taking your guns away”) are gun industry supporters, who characterize any attempt to prevent gun violence as part of a gun ban conspiracy. 2. In March 2019, a mass shooting in New Zealand killed fifty-one people and wounded many others. It took the government only a week to pass new gun violence prevention measures, including a ban on assault weapons and high-capacity ammunition magazines. After the 2017 Las Vegas mass shooting that killed more than fifty people and wounded hundreds of others, it took more than fourteen months for the US government to take action, which only banned “bump stocks,” the add-on component to increase the firepower of the assault weapons that remain legal for citizen use. As Mervosh (2019) noted, a pattern of responsive action is common for countries other than the United States, but this US action is uncommonly responsive compared to that for other mass shootings in the United States (although it is neither as timely nor definitive as that of other countries). 3. Thus, we do not focus on the fact that most gun killings (including those resulting from mass shootings) are perpetrated by men, because this is neither a modifiable risk factor nor an issue that social policy can address. Similarly, we do not focus on the nature of the victims, but it is notable that victims of gun killings are more likely to be Blacks (especially males), and more recently, Muslims, gays, and people of Asian descent or who look Asian have been victims of mass shootings (see our chapter on hate crime and domestic terrorism). 4. A mass murderer is defined as someone who kills four or more people in one location during a period ranging from a few minutes to several hours; a spree killer is a special form of mass murderer who kills victims at two or more different locations with no “cooling off” period between murders (Meloy and Felthous 2004). 5. During the time covered by the Mother Jones database, the number of deaths required to qualify as a mass shooting was reduced from four deaths to three. To compensate for this change, we excluded all mass shooting incidents with less than four deaths. This eliminates the bias in reporting results related to change in mass shooting events and their consequences, as well as comparisons with CDC gun homicide data. 6. The proposal to arm teachers also raises several unsettling questions (Slomanson 2019), including whether teachers who shoot someone could face civil lawsuits or be criminally prosecuted, or if they would be entitled to qualified immunity comparable to that of law enforcement personnel (see Chapter 5 for developments in qualified immunity policy). Also, would weapons be securely stored or would teachers be entitled to carry their weapons openly? What would be the impact on students of arming teachers, and what happens if a teacher who feels threatened shoots a student?

Notes

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Increasing Social Control

7. Some studies also found positive effects or no effects; several of these studies were authored by gun industry supporters (e.g., Fox News columnist John Lott). Other researchers who reexamined these conclusions, sometimes using the same data, generally came to the opposite conclusion (Cheng and Hoekstra 2013; McClellan and Tekin 2012), or found the results inconclusive. In general, studies by gun industry supporters tend to be outliers in the literature and are not consistent with findings from the most rigorous studies (Beauchamp 2017). 8. The evidence varies regarding the importance of these characteristics of potential shooters. There is strong evidence that domestic violence is associated with incidence of gun violence generally and mass shootings specifically; one analysis indicated that over half of mass shootings involved domestic violence or were committed by someone with a history of domestic violence (Weber 2017). Domestic violence history in conjunction with drug and/or alcohol use/dependence is associated with a substantially increased risk of gun homicide and violence (Bailey et al. 1997; Banks et al. 2008). There is less evidence for the role of diagnosed mental illness (other than drug/alcohol disorders), although lack of impulse control is associated with increased likelihood of threatening others with a gun (Casiano et al. 2008). In response to the August 2019 shootings in El Paso and Dayton that killed thirty-one and injured fifty-three, then president Trump stated that “red flag” laws should be passed to better identify “mentally disturbed individuals” who may be violent and subject them to involuntary confinement “before they strike.” Arthur Evans, chief executive officer of the American Psychological Association, criticized former president Trump’s remarks linking the mass shootings to mental illness: “Blaming mental illness for the gun violence in our country is simplistic and inaccurate and goes against the scientific evidence currently available . . . the overwhelming majority of people with mental illness are not violent. And there is no single personality profile that can reliably predict who will resort to gun violence” (Keith and Naylor 2019). 9. The 1994 federal ban made it illegal to manufacture or obtain certain types of assault weapons but did not make it illegal to possess an assault weapon that had been obtained legally before the ban. Such bans can only minimally effect change (they do not decrease guns in the population; at best they only stop the increase), but the elimination of such policies can have a more dramatic impact because they allow an increase in these guns, with the potential for increased use in killings. 10. Gun industry supporters have initiated additional pushback efforts targeting California’s strict gun regulations through civil lawsuits challenging background checks for ammunition purchases (to ensure that purchasers are legally entitled to use a gun for which they are buying ammunition), the ban on high-capacity ammunition magazines, and an increase in the minimum age for ownership of a gun to twenty-one (Lehman-Ewing 2019b). These lawsuits are working their way through the court system at the time of writing this book. 11. Ironically, the Las Vegas hotel at which the shooting occurred was required to pay victims $800 million for damages caused by using guns and ammunitions that are legal and can be carried in public in many states (Kim 2020), but the manufacturers and sellers of those guns cannot be sued or prosecuted. 12. Joshua Powell, a former top leader of the NRA, recently criticized the organization for using extremist strategies to increase funding and intimidate public officials considering gun violence prevention measures, while Letitia James, the attorney general of New York, recently filed a lawsuit to dissolve the NRA and obtain millions of dollars in restitution (Hakim and Haberman 2020).

57 Table 3.1 Stage

Overview of Social Control Development for Gun Violence

Policy formation– expansion

Policy formation– contraction

Policy formation– contraction

Year

Legislation/Action

1994 Public Safety and Recreational Firearms Protection Act 2004 Sunset provision of 1994 federal assault weapons ban 2005 Protection of Lawful Commerce in Arms Act (PLCAA)

Policy implementation

2008

Reform agitation

2013

Policy formation– contraction

2014

Policy formation– contraction

2016

Policy formation– contraction

2018

Function of Action

Establishes federal ban on sales of assault weapons Expiration of federal ban on sales of assault weapons Makes gun manufacturers and sellers immune to lawsuits seeking damages for gun violence District of Columbia US Supreme Court rules v. Heller that the Second Amendment to the US Constitution protects the right to use arms in defense of hearth and home, but that this right is not unrestricted Sandy Hook Promise Foundation provides Foundation founded education on how to by parents of children recognize and reduce risk killed in Sandy Hook of school shootings; sister school shooting organization (Sandy Hook Promise Action Fund) advocates policy to prevent gun violence Obama administration Recommends against the Department of use of zero tolerance Education Dear strategies, which have been Colleague guidance used to expel mostly letter minority students who have not committed crimes Broward County, Florida, Prevents the use of zero update of Preventing tolerance strategies to expel Recidivism Through mostly minority students Opportunities, who have not committed Mentoring, crimes Interventions, Support and Education (PROMISE) Trump administration Allows schools to use zero Department of tolerance strategies to expel Education rescinds students who have not Obama-era guidance committed crimes on school discipline

continues

58 Table 3.1 Stage

Continued

Reform agitation

Policy implementation

Policy implementation

Policy formation– expansion Policy formation– expansion

Reform agitation

Policy formation– contraction

Year

Legislation/Action

Function of Action

2018 Never Again MSD Demands legislative action founded by students be taken to prevent who had attended similar shootings in the Marjory Stoneman future and vocally condemns Douglas (MSD) High US lawmakers who have School in Parkland, received political Florida, at the time of contributions from the the shooting National Rifle Association 2019 Soto v. Bushmaster Connecticut Supreme Court Firearms International, reverses a lower court’s 2016 LLC ruling, allowing families of victims in the 2012 Sandy Hook school shooting to continue their suit against the manufacturer of the assault weapon used in the shooting 2019 Prescott v. Slide Fire Case is filed against Sols, LP manufacturers of the assault weapon used in Las Vegas mass shooting, following the strategy successful in the 2019 Connecticut Supreme Court ruling 2016 President Obama Technology would reduce challenges technology accidental shootings and use companies to develop of illegally obtained guns smart guns 2018 President Trump signs Action to ban bump stocks a memo directing (the device used in the 2017 Department of Justice Las Vegas mass shooting to regulate the use of that turns a legal assault bump stock devices weapon into an illegal continuous firing machine gun) 2019 Presidential candidate Proposes using a regulatory Elizabeth Warren approach similar to that announces plan for a used to reduce motor vehicle comprehensive national injuries (see Table 3.3) gun violence prevention program 2019 Marjory Stoneman Florida approves right of Douglas Act teachers to bring guns onto school campuses

continues

59 Table 3.1 Stage

Continued

Policy formation– expansion

Table 3.2 Decade

1980s 1990s 2000s 2010s All years

Year

Legislation/Action

2021 President Biden announces plans to reduce violent crimes and the gun violence epidemic

Device

Plans include tougher enforcement of federal laws on gun sellers, additional support for local law enforcement, investing in community violence intervention programs, and assisting those previously incarcerated to reenter the community

Mass Shooting Statistics per Year by Decade Number of Events 1.0 2.3 2.0 4.5 2.5

Deaths 9.9 15.9 17.1 46.3 22.6

Source: Follman, Aronsen, and Pan 2019

Table 3.3

Function of Action

Injuries 11.0 18.6 12.9 93.5 34.4

Total Casualties 20.9 34.5 30.0 139.8 57.1

Applying Motor Vehicle Regulations to Firearms Regulation

Licensing user

Motor Vehicle

State-certified license required for operation in public areas; pay fee to state agency Unlicensed use is punishable by fine, confinement, and/or confiscation of device Must pass state-administered test regarding applicable laws and demonstrate competence in operating device; pay fee to state agency License is according to type of device used (motorcycle, passenger vehicle, truck)

Firearm

State-certified license required for operation in public areas; pay fee to state agency Unlicensed use is punishable by fine, confinement, and/or confiscation of device Must pass state-administered test regarding applicable laws and demonstrate competence in operating device; pay fee to state agency License is according to type of device used (handgun, rifle, semiautomatic)

continues

60 Table 3.3 Device

Continued

Insuring user

Registration of device

Operation of device

Inspection of device

Sale of device

Motor Vehicle

User must have state-defined minimum level of insurance to compensate for damage and/ or injuries caused by device Private insurance companies are backed up by “assigned risk” insurer Register device with state agency; pay fee Registration must be renewed periodically (typically every 1–3 years) All devices have traceable identification Device must be operated in accord with relevant traffic laws (e.g., only in approved areas) Use of the device while impaired is a violation and subject to arrest (e.g., driving under the influence) Device must conform to official regulations (e.g., pollution certification) Sale permitted by licensed business and by private individuals Sale must be registered Device being sold must meet safety inspection standards

Firearm

User must have state-defined minimum level of insurance to compensate for damage and/ or injuries caused by device Private insurance companies are backed up by “assigned risk” insurer Register device with state agency; pay fee Registration must be renewed periodically (typically every 1–3 years) All devices have traceable identification Device must be operated in accord with relevant traffic laws (e.g., only in approved areas) Use of the device while impaired is a violation and subject to arrest (e.g., carrying under the influence) Device must conform to official regulations (e.g., functioning load indicator) Sale permitted by licensed business and by private individuals Sale must be registered Device being sold must meet safety inspection standards

4 Sexual Assault in Higher Education

escalation and/or expansion within the criminal justice system, which seems the most common mechanism of increasing criminal justice control. However, the case study in this chapter examines a different mechanism— escalation and/or expansion of criminal justice strategies through diffusion of these strategies to other social control systems. While the criminal justice system embodies the strongest form of social control (including incarceration and death), the diffusion of criminal justice strategies to other social control systems represents the possibility of an even greater increase in social control, as more of society becomes subject to these strategies. Elsewhere, we discuss how the criminal justice system’s regulation of sex offenders in the larger society has developed (see Chapter 7). In this chapter we focus on an entirely different system for the social control of sexuality—the creation within institutions of higher education (IHE, colleges and universities) of a system for dealing with sexual misconduct that parallels the criminal justice system. This federally mandated system operates largely independently of the criminal justice system and has developed its own criteria for defining offenses, procedures for making complaints, methods of investigating accusations, and punishments for offenders. Given the lack of coercive power by IHE, the sanctions available are much less severe than those available in the criminal justice system. Offenders identified by IHE are not subject to incarceration, involuntary civil commitment or outpatient treatment (after or instead of imprisonment), or registration and community notification, as they are within the criminal justice system for controlling sexual misconduct.

In the two previous case studies, social control has increased by

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In this chapter, we examine the development and evolution of IHE investigatory and disciplinary systems for responding to reports of campus sexual assault and harassment, comparing this response to that of the criminal justice system. We describe the federal executive branch directives and mandated strategies implemented to prevent and punish sexual assault on IHE campuses, taken in response to agitation by victims/survivors and their supporters, and women’s rights advocates (including the Me Too movement). As suggested by our theoretical model, the actual outcome of the federal executive directives and mandates is realized through the process of application, especially court rulings on the legality of these measures. We also describe the federal executive response to judicial rulings on IHE requirements. The question moving forward is how IHE social control strategies will balance the rights of (mostly female) accusing students and the rights of (mostly male) accused students in sexual assault and harassment incidents. In terms of institutional diffusion, the question is how the criminal justice approach to assessing responsibility has and will shape the IHE system of social problem control. Federal legislation affects IHE disciplinary systems in several important ways that have both motivated and divided the public. (See Table 4.1 at the end of the chapter for a listing of key legislative, administrative, and judicial actions in the development of this social problem control institution.) Title IX (Education Amendments of 1972, 20 U.S.C., §§ 1681–1699) is the federal law that prohibits discrimination based on sex in federally funded education programs (Kutner 2015). The federal Title IX legislation originally was intended to prevent sexual discrimination at IHE, particularly in funding for college athletics, with the purpose of making sure that students have access to their educational programs, unaffected and undeterred by discrimination against them. The notion of discrimination within the educational sector has expanded over the past several decades since 1972 to include protecting students from sex-based harassment and sexual assault. Sexual violence and sexual harassment interfere with a student’s right to receive an education free from discrimination. Under Title IX, IHE are required to investigate and resolve student reports of sexual assault and sexual misconduct of any kind. Investigations by the US Department of Education (ED) Office for Civil Rights (OCR) under Title IX can be initiated either in response to a formal civil rights complaint against an institution or as a product of an ongoing compliance review. Typically, the first step in the process is that the OCR notifies the IHE that it is under investigation and states whether the action is based on a complaint or a compliance review. Federal officials then request information from the IHE (including incident reports, investi-

Background

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gation notes, hearing documents, policies, training materials, and so on), and schedule campus visits by federal officials to interview students and employees. Investigations by the OCR may take months or even years to complete and can be resolved in various ways.1 The 1990 Clery Act (U.S.C. § 1092 and 34 C.F.R. 668.46) is a related law that works in tandem with Title IX. Clery requires all IHE to report to the federal government all sex crimes on or adjacent to campus that are reported to school authorities (§ 1092(f)). The elements of the Clery Act require all IHE to gather and disclose sexual crime statistics and security information, including efforts to improve campus safety; perform investigations to determine the need for timely warnings to (potential) victims; and provide necessary resources (preventive education, right to services, disciplinary proceedings, etc.). Prior to the election of Barack Obama as president in 2008, enforcement of Title IX and Clery by the Department of Education had been perceived by many as insufficiently vigorous, if not lax. Sexual assault and sexual harassment were recognized to be common at IHE. Sexual assault disproportionately affects female victims, and males are most often the perpetrators of sexual assault at IHE. Males can also be the victims of sexual assault, though it is difficult to estimate the prevalence of sexual assault of males at IHE because they are less likely than female victims to report the crime to police (Sable et al. 2006). Nevertheless, it appears that (1) lesbian, gay, bisexual, transsexual, or queer individuals are more likely than heterosexual men to be victims of IHE sexual assault, and (2) heterosexual men are more likely than others to be perpetrators of IHE sexual assault. Surveys indicate that as many as one in five women college students experience sexual assault at some point in their college career (Krebs et al. 2016), and almost half of students report that they have experienced some form of sexual harassment (Hill and Kearl 2011). These offenses are underreported because only a small minority of people who are age eighteen to twenty-four and are sexually assaulted or sexually harassed make any kind of formal complaint (Hill and Kearl 2011; Planty et al. 2013), either to their school or, in the case of sexual assault or rape, to the police (National Center for Education Statistics and the Justice Department 2016).2 There are many reasons for not reporting crimes of sexual violence, including selfblaming and the feeling that a complaint will not be taken seriously by the IHE so there will not be a meaningful response. When receiving complaints about sexual assault or sexual harassment of a student by another student, IHE sometimes responded that it was a criminal matter and they would refer these incidents to the police department. This typically ended the school’s obligations, at least unless and until there was a criminal conviction, at which point the accusing student might be advised to come back to the school with the complaint (Miller and Martin 2020).

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Before the Obama era, a common problem was that IHE had no welldefined process or administrative office for students to get help if they had experienced sexual assault or harassment. The OCR during the Obama administration was concerned about what seemed to be an epidemic of sexual misconduct on campus and a campus “rape culture.” These concerns developed out of a perception by many people that campus sexual assault and sexual harassment were widespread at IHE and that these incidents were not being properly responded to by educational institutions. Moreover, many victims/survivors were reluctant to come forward because of the disciplinary process and often experienced retaliation when they did make a complaint (Miller and Martin 2020). There was also a lack of clarity in terms of what actions were required of IHE and what the school’s obligations were to provide supportive measures when a student reported being sexually assaulted or sexually harassed. Thus, the Obama administration’s OCR believed it was important to make administrative changes in the process to protect women on campus and make it easier for those who may have been victims to come forward. In 2011 the ED in the Obama administration acted to increase supervision of the disciplinary standards and processes of IHE related to sexual assault and sexual harassment. The Dear Colleague letter formally reminded IHE administrators of their legal duty under Title IX to respond promptly and equitably to sexual assault and sexual harassment allegations (Office for Civil Rights 2011). Notably, the Obama-era guidance was not issued as an enforceable legal rule because it was not promulgated under an established procedure pursuant to the Administrative Procedure Act (APA). Rather, the legally nonbinding directives were designated as a “guidance letter.” Thus, a procedural issue was raised; because the guidance was issued without APA procedures having been followed, these recommendations did not have the force of law. The Dear Colleague letter recommended specific measures IHE were required to take to fulfill this duty, informing schools how to conduct an investigation, interview witnesses, examine evidence, and undertake “interim measures to protect the complainant” (Chronicle of Higher Education 2016). The OCR guidelines also cautioned that it would investigate the IHE if it was found to be out of compliance with Title IX and could withdraw federal funding. Additionally, OCR started listing online the public and private institutions of higher learning that were under investigation for not complying, so that students and their parents are able to review the list of open Title IX cases. This information can dramatically affect decisions about which school to attend, giving IHE another financial incentive to implement sexual assault prevention measures. As of March 2017, there were 311 open cases at 227 different IHE (Yoffee 2017).

Increased IHE Responsibility for Controlling Sexual Assault

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In 2014, OCR provided further directives in what it termed a “significant guidance document,” under the Office of Management and Budget’s Final Bulletin for Agency Good Guidance Practices (Fed. Reg. 3432 (2007)). This guidance, entitled Questions and Answers on Title IX and Sexual Violence (Q & A), clarified IHE’s obligation to respond to sexual violence (including the requirements to publish a policy against sexual discrimination, designate a Title IX coordinator, and adopt and publicize grievance procedures). The document also clarified what questions the ED would consider and the standards it would apply when evaluating complaints filed with OCR. In addition, the 2014 document authorized OCR to investigate not just one case involving a complaint of sexual assault or misconduct, but every aspect of the IHE adjudicatory process and all sexual misconduct adjudications at the particular school going back years (Yoffee 2017). The OCR message during the Obama administration was clear: IHE were required to do more to ensure (female) student safety by strengthening their rules against sexual assault. While the effect of potential financial sanctioning under Title IX (withdrawing federal funds) is not known, Weisberg argues that “colleges, terrified of the loss of federal money, respond to non-binding messages from the government with agreements to significantly change their disciplinary definitions and processes in implicit or negotiated settlements” (Weisberg 2017, p. 155). The guidance letter and subsequent clarifying “Q&A” document were not specific about what had to be part of the IHE adjudication procedures. Yet, the possible draconian sanction of losing federal funding led some schools to overcomply with what they thought they had to do. For the most part, IHE administrators revised sexual assault policies and procedures to comply with the Obamaera directives and suggestions for adjudicating allegations of campus sexual assault, including expulsion of students and the referral of cases to criminal justice authorities (Wilson 2015). The Obama administration policies shifted the way that IHE oriented to campus sexual assault and sexual harassment by clarifying that the ED expected schools to establish procedures for responding to allegations of college sexual misconduct and to communicate to students how to use them. But this change of perspective on IHE sexual misconduct did not occur in isolation. Simultaneously and relatedly, student activism demanded that IHE be more responsive to issues of campus sexual violence; this increased the ED focus on this issue and resulted in a lot of IHE reform since Obama’s presidential inauguration in 2009. The goal of many IHE has been to shift the landscape so that victims/survivors of sexual assault and sexual harassment would feel that the complaint process would not initiate a cycle of retaliation and hostility (i.e., “secondary victimization”) that might in some ways be worse than the initial sexual victimization (Miller and Martin 2020). The IHE changes in their responses to sexual misconduct during the Obama years led to more complainants coming forward, along with more

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accountability for students found to be responsible for campus sexual misconduct. These changes prompted a backlash, but advocates for women’s legal rights argue that backlash is common in the face of a meaningful change in power relations, and specifically in how society responds to sexual violence and sexual harassment (Miller and Martin 2020). Some lawmakers and attorneys believe that since Title IX treats campus sexual misconduct as a civil rights violation, such allegations should be handled by law enforcement agencies instead of IHE disciplinary systems. However, an IHE investigation of a reported sexual assault is a distinct action separate from a criminal investigation and does not supersede or preclude criminal investigation. Both can happen simultaneously, or a complaint of sexual assault can be made by the victim only to the IHE. Indeed, it is common that organizations take independent action in response to criminal acts by their members (e.g., suspending professional athletes for domestic violence or substance abuse). IHE public safety departments typically work closely with police in their investigations and share information with law enforcement. IHE public safety officials may also ask the broader campus community for information to help further the investigation. Prior to the publication of the 2020 ED regulations (described below), lawmakers in several states proposed that IHE be required to notify the police of student reports of sexual assault. California, for example, has been at the forefront of criminal justice reforms in mandating campus sexual assault reporting to police by IHE as a condition of receiving state funding. Campus security authorities are required to disclose to local law enforcement any report of a student being sexually assaulted, whether committed on or off campus, as soon as is practical (California Assembly Bill 1433, 2014). Some victim advocates, however, worry that this requirement may serve as a disincentive for some victims to report sexual misconduct to their schools. Yet, despite this collaboration, “colleges now have the primary role in responding to reports of sexual assault [because] the criminal justice system often opts not to follow through with complaints” (Wilson 2014). Police may not investigate a complaint or make an arrest, and district attorneys may decide not to file criminal charges (e.g., based on insufficient evidence). In contrast, IHE have less discretion than local law enforcement or prosecutors about whether to pursue sexual assault cases. Indeed, IHE are required to offer an alternative to the criminal justice process, which may be preferred by some victims because of a perceived lower risk of victimization by the process and a greater opportunity of accomplishing something to protect female students beyond punishing the perpetrator (Wilson 2014).

Comparing Criminal Justice and IHE Investigations

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Many victims decide not to go to the police because of a belief that the criminal justice system favors sexual assault defendants over their accusers. Defense procedures and practices have for decades encouraged scrutiny of the accuser, who generally is portrayed as the person responsible for the incident (in spite of “rape shield” laws precluding inquiry into the victim’s past sexual history). As a result, of the estimated 15–35 percent of all sexual assaults that are reported to the police, a much smaller percentage are prosecuted, and an even smaller number result in conviction (Planty et al. 2013). This number may be even lower among IHE students, because the victim is usually acquainted with the perpetrator (in contrast to most sex offenders who are prosecuted through the criminal justice system). Compared with the criminal justice system, where the due process and related rights of the criminally accused are mostly consistent across the states, there has been wide variation in the nature of disciplinary systems and processes that IHE use to adjudicate campus sexual assault (Weisberg 2017). IHE disciplinary proceedings vary in rules of evidence and discovery, who are the prosecutors and decisionmakers (e.g., administrators, faculty panel, or student jury), and whether lawyers are allowed to participate in the process. The OCR requires IHE to “provide complaining students and accused students with equal opportunity to submit statements, present witnesses and evidence, and to appeal outcomes” (Konradi 2016a, p. 377, citing Chmielewski 2013). Based on data from four-year residential IHE in Maryland, Amanda Konradi examined whether procedural justice (or perceptions of the legitimacy of the process by those involved) is achieved in college disciplinary proceedings, both for accusers and accused students. She found policies varied across campuses and that some adjudicatory approaches protected victims/survivors better than others (Konradi 2016b). She also determined that while compliance with the Clery Act was relatively high, due process and victim protection practices varied widely (Konradi 2016a). Most IHE in the study had made progress toward implementation of the 2013 Campus Sexual Violence Elimination Act (Senate Bill 128 [113th Congress] 2013– 2014), which requires campuses to annually report sexual assault statistics and achieve fair and equitable procedures in responding to reports of campus sexual assault (Konradi 2016a).3 However, she noted that this progress had “lagged . . . in terms of granting students access to advocates and providing information to students about appeals and training for members of hearing panels” (Konradi 2016a, p. 4). Konradi also found that the due process afforded in public institutions was higher than in private institutions in terms of compliance with the Clery Act.

IHE Disciplinary Proceedings

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Two different student disciplinary models have been utilized by IHE for sexual assault cases: the hearing model and the investigator model (Urban 2017). The hearing model is considered to be the traditional approach and involves an investigation, often by an independent firm that the institution hires, followed by a hearing involving one or more neutral decisionmakers, sworn testimony, cross-examination of witnesses (with safeguards for cross-examination of alleged victims), and detailed written findings. The legitimacy of the hearing model was considered in the case of Doe v. Regents of University of California, 5 Cal. App. 5th 1055 (2016), in which the appellate court held that the complete array of due process protections afforded in a criminal trial is not required in IHE handling of sexual assault cases. The court also ruled that limiting the accused student’s rights to cross-examine the alleged victim did not render the hearing unfair, where the IHE had authorized cross-examination only through written questions and had screened out some questions, consistent with OCR guidelines. Finally, the court ruled that limiting the accused student’s/respondent’s attorney from participating in the hearing was permissible. IHE have increased use of the investigator model in campus sexual assault disciplinary proceedings. This model has no formal evidentiary hearing. Rather, the student facing discipline (often called the “respondent”) receives notice of the charges against him or her. Then a comprehensive investigation takes place, sometimes conducted by a single person and often by an independent firm. The investigator provides the respondent with a “meaningful opportunity to be heard” in a thorough interview by the investigator. The respondent may also provide the investigator with documents, names of witnesses, or other information he or she believes will support his or her defense.4 The case of John Doe v. University of Southern California, 246 Cal. App. 4th 221 (2016) challenged the investigator model. The court in this case did not consider whether the investigator model per se satisfied constitutional due process, because private institutions (unlike public institutions) do not have to comply with the constitutional requirement for due process as set forth in the case of Goss vs. Lopez 419 US 565 (1975), which required that to impose discipline on a student there must be “some kind of notice” and “some kind of hearing”—that is, some sort of meaningful opportunity to be heard. However, hearing procedures of all IHE are subject to statutory procedural fairness requirements. Thus, the court decided the case under common law principles of fairness using due process concepts. In its ruling, the court found deficiencies in the way the IHE had implemented the investigator model in the case at hand but did not indicate that the investigator model itself failed to meet fairness standards. Aside from the procedural models used by IHE, one major difference from criminal justice proceedings is the rule of evidence or burden of proof,

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which often leads to different outcomes within the two systems. The criminal justice system requires a higher burden of proof—“beyond a reasonable doubt” compared to the lower “more probable than not” or “preponderance of evidence” standard—to determine if a student violated the IHE code of conduct. Under Title IX as implemented by the Obama administration in the Dear Colleague letter from the ED, all IHE that receive federal funding had to adopt the preponderance of evidence standard of proof when handling complaints of sexual misconduct (Krakauer and Dunn 2017). Women’s rights advocates have endorsed this lower burden of proof standard (Stolberg 2017; Green and Stolberg 2017). Under this standard, if the evidence shows that more likely than not the misconduct occurred, the student accused of assault will be disciplined under the school’s current code of conduct. Although this standard of proof had been required by the ED in civil rights cases for decades, attorneys for accused students have suggested that “the burden has really shifted to students to disprove the allegations, and they’re required to prove innocence, which is often an impossible task” (Cho 2018g; and see Kutner 2015). However, preponderance of evidence is the standard applied in civil (rather than criminal) cases and often is considered to be the appropriate model for noncriminal offenses (e.g., those in IHE disciplinary proceedings). But use of this standard in college disciplinary proceedings was challenged explicitly by the Trump administration’s ED in its 2020 Title IX regulations, as well as in the courts, which are increasingly recognizing the criminal justice–like due process rights of accused students. Under state criminal law, there are varying definitions of rape and sexual assault. In some states, the definition of rape requires the use of force or threat of force, while sexual assault is commonly defined as any act of intercourse or sexual contact without consent. The women’s rights and rape reform movements of the 1970s fought for and achieved substantial changes in state criminal codes (e.g., passage of rape shield laws precluding inquiry into the victim’s past sexual history), and state legislatures and courts began to modify long-standing laws defining rape. One important shift divided the single crime of rape into several degrees of offense, each of which was associated with a different level of punishment, enabling juries to render guilty verdicts more often. Most states expanded the definitions of sex crimes to eliminate inequities based on gender and marital status, such that rape of a married woman by a spouse was then legally recognized as a crime. Penetration of a bodily orifice other than the vagina was also made a felony (Tracy et al. 2013). Thus, new sexual acts were criminalized—that is, there was an expansion of regulated acts. In addition, the several degrees of rape

Standards of Consent in Criminal Law and Higher Education

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and sexual assault may depend on such factors as whether a weapon or kidnapping was involved, whether lasting injuries resulted, and whether the alleged perpetrator had some kind of authority over the victim. “Sexual violence,” as that term was used in the 2011 Dear Colleague letter from the Obama-era ED, refers to “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability. A number of different acts fall into the category of sexual violence, including rape” (US Department of Education, Office for Civil Rights 2022). IHE have adopted this definition of sexual assault, which is broader than under criminal law (Grigoriadis 2017). In terms of consent as a defense to allegations of sexual assault, an affirmative consent (or “yes means yes”) standard applies at many IHE. According to this standard, “students must receive a spoken ‘yes,’ or an unmistakable sign of pleasure or consent from a partner to escalate, and proceed with, each stage of a sexual encounter” (Grigoriadis 2017). But advocates for expanding the constitutional rights of accused students argued that such regulations violate the sexual “privacy” and “autonomy” rights of students protected by the due process clause of the US Constitution: “By regulating how students express their consent, rather than merely requiring consent, affirmative consent regimes violate this right” (Gerstmann 2018, p. 163, emphasis in original). In the context of consent and IHE sexual assault, communication around sexuality has become a focus of the federal bureaucratic state and its rationalized procedures (Weisberg 2017, citing Gerson and Suk 2016). However, existing social science research indicates that most communication about sexual activity between potential partners in IHE is nonverbal, “through very subtle and indirect negotiation on to which legal standards of affirmative consent do not readily map” (Weisberg 2017, emphasis added). Generally, “students do not give specific permission for individual sequential sexual actions, so that much of the behavior occurs without specific permission to continue” (Weisberg 2017). As Grigoriadis (2017) explains, “students . . . as a cohort, know very little about sex, let alone how to talk about it. . . . The dynamics of sexual immaturity at colleges . . . [means] students have varying amounts of sex education and were more likely to learn what they know from pornography or other media that perpetrate America’s toxic gender norms [and] . . . add to that parties, drinking, lack of supervision” (Grigoriadis 2017). As a result, the affirmative consent standard may be difficult to apply to determine consent in any actual case. However, because college students are young and inexperienced (compared to the rest of the adult population) their need for greater protection and regulation often is cited as a reason for applying an affirmative consent standard to campus sexual misconduct.

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One highly publicized event giving impetus to the use of the affirmative consent standard was the case of Brock Turner, a student-athlete sentenced to six months in jail for the sexual assault of an unconscious woman behind a dumpster outside a fraternity house on the Stanford University campus. (See Chapter 6 for a discussion of racial bias and White privilege in sentencing.) The highly adverse publicity surrounding this perceived miscarriage of justice and excessively lenient sentence led not only to public outcry, but also to a move toward adoption of the affirmative consent standard as a part of the campus disciplinary process in sexual assault cases. For example, the state legislature of California voted to impose the affirmative consent standard in both public and private IHE as a condition of state funding (California Education Code, § 67386 (a) (1); also see Weisberg 2017). Another related law is California Senate Bill 838 (Audrie’s Law), which increased punishment for juveniles who sexually assault someone who is unable to resist (i.e., to provide affirmative consent), for example, due to intoxication. A third related piece of legislation is California Senate Bill 967 (the Yes Means Yes bill) that requires schools whose students receive financial aid to (1) uphold an affirmative consent standard in campus disciplinary hearings and (2) educate students about the standard. In this context, affirmative consent means “an affirmative, conscious and voluntary agreement to engage in sexual activity,” which shifts responsibility to the initiating party and away from the obligation of the other party to speak up during an unwanted sexual encounter. Perhaps the most far-reaching impact of the Obama ED actions was that they led legal professionals to grapple with the affirmative consent standard in terms of state criminal law and what the definitions of sexual assault and rape should be. For example, questions have been raised about the appropriateness of diffusing the affirmative consent standard from educational institutions into the criminal justice system as the basis for establishing criminal responsibility for sexual assault and/or rape (Weisberg 2017). Conversely, considering the extensive procedural protections that have long been afforded to criminal defendants (including the highest burden of proof of “beyond a reasonable doubt,” the requirement of a unanimous jury to convict, and the presumption of innocence), establishing clear criteria for assessing consent seems reasonable. The American Law Institute has been working on revising the Model Penal Code provisions of Article 213 defining rape and sexual assault, with a new doctrine of consent as the basis for both.5 However, in its current version (as of 2018), the American Law Institute declined to include an affirmative consent standard in Article 213. Instead, they used a “contextual consent” standard—that is, that consent can be expressed or inferred from conduct (both action and inaction) to determine whether consent was given “in the context of all the circumstances.” This standard is unlike the affirmative

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consent standard, which presumes a lack of consent in the absence of words or actions.6 Nevertheless, like mental health and public health reforms to the criminal justice system, this is another institutional arena where social control strategies from a different institutional sector (higher education) are diffusing into the criminal justice sector (see Chapters 9 and 10). The direction and degree of influence between the criminal justice and IHE systems remain to be seen. During the Obama administration, the ED’s “effort to control colleges’ internal university disciplinary rules and processes” (Weisberg 2017) meant that IHE had to do more to ensure student safety (especially of female students) and were required to strengthen their rules against and responses to sexual assault and harassment. After implementation of the Obama-era ED guidelines, the accountability of IHE to federal government regulations has been challenged by private lawsuits brought by dozens of male students who have been disciplined for sexual assault. These students sued their IHE in civil court for review of the (un)fairness of on-campus disciplinary proceedings, alleging deprivation of their due process rights and asking judges to order the schools involved to clear their records (Kutner 2015). Expelling or suspending a student without due process can result in IHE liability for a civil rights violation, which in turn renders IHE administrators liable for attorney fees and large money damages. In addition, there has been activism by accused students, their counsel, and men’s rights groups, along with several favorable court decisions, suggesting that the response of IHE to sexual misconduct had fallen short of the due process procedural protections to which alleged offenders are entitled. In 2014, twenty-three Columbia University students filed such complaints (Bauer 2016). Although the intent of the Obama administration policy was to permit victims the opportunity to sue higher education institutions, it has resulted in the unanticipated consequence of allowing accused students to use civil suits in attempts to overturn disciplinary actions. These students allege reverse gender discrimination in their lawsuits, echoing the gender discrimination complaints of their (most often) female accusers that schools are violating Title IX. In John Doe v. Columbia University, 101 F. Supp. 3d 356 (SDNY 2015), a student who was suspended for sexual misconduct filed suit alleging that Columbia University denied him a fair proceeding. Columbia University responded that the pleaded facts did not support an inference of intentional sexual discrimination by the university. The federal district court agreed, ruling that the allegations of sex discrimination were too conclusory under the pleading standards and dismissed the complaint. The suspended student appealed the ruling in John Doe v.

Pushback: Civil Lawsuits Claiming Reverse Discrimination

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Columbia University, 831 F3d 46 (2d Cir. 2016), and the federal Court of Appeals for the Second Circuit vacated the dismissal of the complaint. The appellate court remanded the case back to the district court for further proceedings, finding that Title IX discrimination claims need only plead a “minimal plausible inference” of bias to survive a motion to dismiss, reducing the required facts needed to plead discriminatory intent. The appellate court thus approached Title IX sexual discrimination from the perspective of the male student who alleged that the university’s hearing model as implemented discriminated against him as a man, making it easier for an IHE student disciplined for sexual misconduct to bring a gender discrimination lawsuit under Title IX. In Doe v. University of Cincinnati, 872 F3d 393 (6th Cir. 2017), a federal court of appeals addressed the question of cross-examination in university sexual misconduct proceedings in a case that represented a “credibility contest” between the parties. The court ruled that due process required some form of witness presence and cross-examination to permit challenges to the allegations, stating that “the ability to cross-examine is most critical when the issue is the credibility of the accuser” (Doe v. University of Cincinnati, 872 F3d 393, p. 401, and see Doe v. Claremont McKenna College, 25 Cal. App. 5th 1055 (2018), for a similar ruling in California). In contrast, the court held that a university might not have to allow witness questioning if the case “does not rely on testimonial evidence” from the complainant, or where the accused “admits the critical facts against him” (Doe v. University of Cincinnati, 872 F3d 393, p. 405). In these cases, the same gender bias principle is used as the basis both for and against IHE sexual assault investigation and disciplinary procedures. The identified perpetrators claim that if gender equity is an accepted principle, then that principle can be used by males as well as females. It is ironic that the policies and procedures implemented to prevent sexual assault (mostly by males against females) have been repurposed to protect the males found to have violated the rights of females. During the Trump administration, the ED repudiated the Obama-era ED policies on sexual assault in ways that weakened protection for victims/survivors and may have excused sexual misconduct by perpetrators (Bryant 2017). According to critics, the result “may make colleges safer . . . for rapists” (Krakauer and Dunn 2017, emphasis added; also see Green, Apuzzo, and Benner 2018). In 2017, Trump ED secretary Betsy DeVos reversed the Obama administration’s policy on campus sexual assault and rescinded its Dear Colleague guidance on campus sexual misconduct proceedings, claiming that “the old rules [regarding burden of proof] lacked basic elements of fairness” and tilted the playing field against accused students.

Judicial and Executive Branch Responses to Pushback

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DeVos informed IHE that accused students must be allowed to cross-examine the complainant and IHE were “free to abandon that [preponderance of evidence] standard and raise it to a higher standard [of proof] known as ‘clear and convincing evidence’” (Saul and Taylor 2017). This directive permitted the use of mediation between the parties (with all parties’ consent), which was not allowed under Obama-era guidelines because critics contended that the mediation process too often allowed sexual assault to be treated as a misunderstanding between students (Saul and Taylor 2017). The directive also removed the sixty-day deadline in completing investigations of sexual assault complaints, stating instead that there is “no fixed time frame” within which an IHE must complete a sexual assault or sexual harassment investigation (Krieghbaum 2017), as long as the investigation is “reasonably prompt” (Saul and Taylor 2017). Recently, the California Courts of Appeal have addressed how due process applies to campus sexual assault cases. An emerging body of law in the area has of late clarified the fair hearing and due process requirements in the campus sexual assault context. In California, several due process rights of accused students have been recognized, including being provided a neutral fact finder, the opportunity to cross-examine witnesses, and the right to discovery of evidence. Each IHE also must comply with its own disciplinary policies and procedures (Reuben and Lahana 2019). Moreover, in two recent decisions, a California appellate court explicitly held that where consent and the victim’s credibility are at issue, “fundamental fairness dictates [that the accused] was entitled to cross-examine [the accuser] and adverse witnesses, directly or indirectly, at a hearing at which the witnesses appear in person or by other means before a neutral adjudicator with the power to make findings of credibility and fact” (Doe v. Allee, Cal. App. 5th, p. 1036; see also Doe v. Carry, Case No. B 282161, Cal. Ct. App., January 8, 2019, not certified for publication). Such live cross-examination can be performed by videoconferencing or other technologies to allow the trier of fact to evaluate the credibility of the witnesses while also “recognizing the risk that an accusing witness may suffer trauma if personally confronted by an alleged assailant at a hearing” (Doe v. Carry, pp. 19–20).7 In 2018, the ED issued new draft regulations to IHE for handling sexual misconduct complaints that embody all the changes reversing the Obama-era policies. In addition, at the conclusion of the investigation “the person or persons determining whether or not discipline should be administered, and what this discipline should be, would have to be different from those involved in the investigation of the complaint,” “the final determination would be made by a third party,” and the decision would be subject to the filing of an appeal in superior court (Madden and Feld 2019). After introducing the proposed changes, ED had a public comment period, reviewed the comments it received, amended the draft rules, and published new Title IX regulations, effective August 2020, that have the full force of law (Madden and Feld 2019).

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The 2020 ED rules apply to two kinds of sexual misconduct: sexual assault and sexual harassment. Sexual assault encompasses a wide range of behavior, including kissing, groping, or fondling without consent; attempted rape; and completed rape. The rules adopt a narrower standard in defining sexual harassment compared to the prior Obama-era guidance standard of “unwelcome conduct of a sexual nature.” Sexual harassment is now defined as unwelcome conduct that a “reasonable person” would find to be so “severe, pervasive and objectively offensive” that it denies equal access to education. This definition specifically includes quid pro quo harassment by IHE faculty or staff and any sexual assault (as defined in the federal Clery Act), dating violence, domestic violence, or stalking assault (as defined in the federal Violence Against Women Act, 34 C.F.R., § 106.30 (a)). Allegations of dating violence, domestic violence, or stalking assault do not have to meet the “severe and pervasive” standard. The 2020 regulations have contracted the social control responsibilities of IHE by relieving them of some potential legal liabilities. For example, IHE must investigate only complaints filed through a formal complaint process and brought to a designated official who has the authority to take action. And IHE must take action only for sexual misconduct alleged to have occurred in their own programs and activities or at “locations, events or circumstances” over which the IHE exercised “substantial control” (e.g., field trips or officially recognized fraternity/sorority activities). Important points clarified by the 2020 ED regulations include the presumption of innocence for accused students and the requirement that the remedies in campus sexual misconduct cases have to be designed to restore and preserve equal access to educational programs for all students, including both complainants and alleged perpetrators. Some basic elements that were not part of the original Obama-era guidance have been put into the 2020 regulations, including explanation of the accusation(s) to the accused student and allowing both accuser and accused to see the evidence. Before 2020, IHE did not need to show the accused student all of the evidence gathered in an investigation, only sharing the evidence that the IHE would use against the accused student in the disciplinary proceeding (Miller and Hathaway 2020). The 2020 regulations require IHE to disclose any exculpatory evidence that could clear the accused—that is, the same requirement that is imposed on criminal prosecutors. The 2020 regulations also mandate a hearing process whereby both parties are required to attend and both parties have an adviser (who may be, but does not have to be an attorney). Some cross-examination is required, although it can be indirect, and the cross-examination cannot be conducted directly by the accused student (rather, the adviser conducts the crossexamination questioning). As already noted, IHE can choose between using the “preponderance of evidence” standard, or the higher “clear and convincing” evidence standard.8 There must be a written final determination

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that includes conclusions and a rationale for the decision that ties the facts and evidence to the university code of conduct (Miller and Hathaway 2020). In terms of procedure, after a final administrative decision is reached by the school (which might include an appeal decision from the President’s or Chancellor’s Office), the only remedy available to a sanctioned student is to challenge the decision by a writ of mandate to the superior court—that is, to a judge sitting without a jury (Miller and Hathaway 2020). It is possible for the court to provide a stay of the punishment (e.g., suspension or expulsion) while the writ process goes through the court system. The court’s decision on the writ also can be appealed by either side to the court of appeals (Miller and Hathaway 2020). In 2021 President Biden issued an executive order directing his ED secretary Miguel Cardona to reexamine his predecessors’ Title IX rules on campus sexual misconduct and instructing him to consider “suspending, revising or rescinding” these rules. It is not yet certain whether the Biden administration will “return to the rules of the Obama administration’s approach or find some middle ground that incorporates lessons from the last two administrations” (Rogers and Green 2021). In the introduction to this chapter, we characterized Obama-era institutional developments in the IHE sexual misconduct arena as expansion and escalation of social control involving the diffusion of criminal justice strategies. The original developments during the Obama administration required proceedings against accused (mostly male) perpetrators in order to protect the rights of (mostly female) victims. However, as our analysis should have made clear, this expansion/escalation actually triggered the diffusion of quasi–criminal justice protections for accused perpetrators, thereby mitigating the original expansion in the scope of social control. The 2020 ED regulations narrowed the Obama administration definition of sexual misconduct and instructed schools that if a complaint does not meet the narrower standard, the school cannot proceed or address reported misconduct that falls below this standard. IHE must dismiss complaints of sexual misconduct that occur outside of a school program or activity (Miller and Martin 2020). Yet IHE often do investigate and take disciplinary measures in response to nonsexual misconduct by students, faculty, or staff that affects school climate, whether or not that conduct occurs on campus or during school activities (Miller and Martin 2020). Thus, sexual misconduct complaints are being handled differently than other types of misconduct complaints by excluding off-campus activities related to sexual misconduct. In addition, the 2020 ED rules state that if the sexual harassment is not quid pro quo sexual harassment, or if the misconduct does not amount to criminal conduct (e.g., stalking or domestic violence), in order for schools

Conclusion and Implications

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to take action, the sexual harassment has to be “severe and pervasive” and “objectively offensive.” If the allegations involve a single act and the act falls short of a sexual assault, it will generally not count as sexual harassment, no matter how severe it is (Miller and Martin 2020). By contrast, under Title VII (the law that addresses workplace sexual harassment), the question is whether the harassment is severe or pervasive, rather than both. Therefore, for IHE to be allowed to address sexual harassment, the harassment in effect has to be worse than an employee would be expected to endure in a workplace setting; in other words, society mandates less protection for young students than for employees (Miller and Martin 2020). IHE must dismiss sexual misbehavior complaints that do not meet those high standards (although schools can still address other, nonsexual misbehavior that violates their codes of conduct). Treating sexual misconduct complaints differently than other types of student misconduct complaints reflects the very gender stereotypes that Title IX was designed to overturn (e.g., the notion that women and girls are untrustworthy when they come forward about having experienced sexual violence or sexual harassment). Thus, there are different standards for assessing sexual misconduct in disciplinary proceedings than in other kinds of IHE disciplinary proceedings, with quasi-legal procedures being required for probing of sex offense accusers while not being necessary for investigating and disciplining a student involved in other alleged misconduct (e.g., nonsexual assault). The increase in the amount of legalism being imposed on how IHE operate is likely to continue into the future with the expansion of the legalism of IHE disciplinary procedures (Miller and Hathaway 2020). Such legalism is likely to spread beyond the context of sexual misconduct, leading to complaints that other disciplinary processes involve arbitrary or discriminatory treatment by IHE. For example, these arguments may diffuse to students accused of other forms of misconduct (e.g., making false statements on applications, theft, or plagiarism) in other types of college disciplinary proceedings. Lawyers and advisers for accused students likely will contend that disciplinary proceedings for other offenses should be treated the same as sexual misconduct—for example, students accused of plagiarism should have the same rights and protections that are provided in a disciplinary proceeding for sexual misconduct, since both involve a question of discipline within the IHE (Miller and Hathaway 2020). The irony highlighted in this case study is that the original executive actions to expand social control to protect a vulnerable population (young women IHE students) to more closely resemble the protections present in the larger society had the net effect of increasing the diffusion of criminal justice elements, such as due process procedures for the accused. Moreover, the reaction to the initial increase in social control triggered backpedaling in the social control of IHE sexual misconduct. These developments created much controversy, pitting the rights of accused students against the rights

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of accusing students. Attorneys and defenders of accused and disciplined students warn that reputations and “lives can be ruined by inaccurate or meritless accusations of this type” and that accused students who face severe sanctions and life-altering consequences are entitled to due process and a fair hearing (Reuben and Lahana 2019). But victims/survivors, women’s groups, and Me Too movement advocates worry that these decisions will deter victims/survivors from coming forward to report sexual assault and misconduct, which already are highly underreported offenses. Indeed, shortly after the publication of the 2020 Title IX rules, a lawsuit was filed by the American Civil Liberties Union (ACLU) challenging the rules on how IHE that receive federal funding must respond to campus sexual assault and harassment complaints (Anderson 2020). The lawsuit (currently pending judicial review) alleges that the regulations “will reverse decades of effort to end the corrosive effects of sexual harassment on equal access to education” (Anderson 2020). Future developments during the Biden administration and beyond will determine whether social control strategies for protecting (mostly) women IHE students from sexual violence will increase or be mitigated by strategies to protect alleged perpetrators. 1. In some cases, no identified individual comes forward to complain that there is a problem about which something must be done. Rather, the IHE takes action based on what they have heard from people in the campus community. Cases may be closed with an “early complaint resolution” or because of “insufficient evidence.” Alternatively, some cases result in a “letter of findings” regarding issues in need of remedy. ED and IHE then negotiate an agreement that details the policies and processes the IHE must adopt or change. These agreements are similar to the consent decrees reached between the US Department of Justice and a police department that has been found to have committed a civil rights violation (see Chapter 5). Additional prescribed remedial measures beyond disciplinary proceedings against alleged perpetrators include administering climate surveys; enhanced training for students, staff, and faculty; review of past cases; assault-awareness campaigns; and/or online resources for collecting information. 2. Rape and sexual assault are among the most underreported of crimes, and an estimated 80 percent of campus sexual assaults are not reported to the police. The National Center for Education Statistics reported that there has been a large increase in reports of campus sexual assaults (National Center for Education Statistics and the Justice Department 2016), but “it almost certainly does not reflect a spike in the number of sexual assaults . . . [but rather the] likelihood [that] today’s actresses, [and] college students are casting off the shame of victimhood to tell their stories” (Grigoriadis 2017; and see Crocker 2017). 3. The Campus Sexual Violence Elimination Act of 2013 (Campus SaVE) amends the Clery Act to enhance transparency and adds requirements for institutions to address and prevent sexual violence on campus. The act, enforced by the ED Office for Civil Rights, applies to all IHE that receive federal funding, including student financial aid. Campus SaVE requires IHE to be transparent about crimes of sexual violence on campus and to keep statistics on relevant acts, as well as to explain its antiviolence policies

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and procedures in its Annual Security Report that includes statistics for crimes committed over the past three years on and near campus. The act also requires IHE to provide reasonable accommodations and protective measures to survivors and to provide education and sexual violence prevention programs. IHE must also follow certain standards and have a protocol in place for disciplinary proceedings. 4. Some criticism about a lack of fairness in handling campus sexual misconduct complaints stemmed from the fact that the procedures used in the “single investigator model” involved a single individual who was doing the investigation and also decided what the final result and sanctions (if any) would be. Thus, in many cases, there was no separation between the person responsible for investigating the complaint and the final decisionmaker (or in some cases, the same office employed the fact finder and the investigator, although it was not the same individual). The perception at the time of many accused students and their lawyers/advisers was that there was no real presumption of innocence (Miller and Hathaway 2020). Critics also believed that the process was nontransparent, with the ultimate result often being that the accused student was found responsible, which resulted in significant stigma; forced separation from faculty, friends, and activities; loss of the right to go to college within the United States, given that an IHE would be unlikely to accept someone for admission who had been disciplined under Title IX at another university; and not being able to attend medical (or professional) school and become a doctor or train to become another kind of professional (Miller and Hathaway 2020). 5. The Model Penal Code (MPC) is not law but is a model law that states can adapt as they see fit into their own criminal law statutes. The text of the MPC related to sexual assault is a useful description of how many legal actors would identify the essential elements of nonconsensual sex. 6. The American Law Institute’s proposed “contextual consent” standard is similar to the “reasonable person” standard in that it takes the context into account in determining whether a “reasonable person” in the circumstances would have believed that the other party had consented to sexual activity, unlike the “affirmative consent” standard that presumes a lack of consent absent words or actions. 7. The 2020 regulations provide that at the request of either party who is concerned about the simultaneous physical presence of both parties, the hearing must be held in separate rooms. The regulations provide that there must be an audio or audiovisual recording or transcript made of the hearing and that schools must make this record available for review, which was not previously required. 8. The “clear and convincing” evidence standard is somewhere between the “beyond a reasonable doubt” standard of proof used in criminal cases and the “preponderance of the evidence” standard used in civil cases. It also is the standard of proof required in government proceedings that threaten significant loss of liberty, such as involuntary civil commitment proceedings. Table 4.1 Stage

Overview of Social Control Development for Sexual Assault in IHE

Policy formation– expansion

Year

Legislation/Action

1972 Title IX

Function of Action

Federal act prohibits sexual discrimination by institutes of higher education (IHE)

continues

80 Table 4.1 Stage

Continued

Policy implementation Policy implementation

Policy formation– expansion Policy implementation Policy implementation– contraction

Policy implementation– contraction Policy formation and implementation– contraction Policy formation and implementation– contraction Policy formation and implementation– expansion

Year

Legislation/Action

1990 Clery Act

Function of Action

Federal act requires IHE reporting of sex crimes on or near campus to US Department of Education (ED) 2011 Dear Colleague letter Details prescribed procedures from Obama ED for IHE handling of sexual assault and harassment 2013 Campus Sexual Federal act requires IHE to Violence publish sexual assaults in crime Elimination Act reports, establishes equitable procedures for responding to reported grievances 2014 Q & A on Title IX Prescribes additional measures Guidance by for IHE: establish/publish Obama ED policies, appoint Title IX coordinator, publicize and enforce grievance procedures 2015 John Doe v. Columbia Lawsuit alleges reverse University discrimination against males and seeks due process rights in IHE sexual misconduct proceedings; ruling makes it easier for students to overturn disciplinary actions 2017 Doe v. University of Case holds that some form of Cincinnati witness presence and crossexamination are required in IHE sexual misconduct proceedings to permit evaluation of witness’s credibility 2017 September directive Rescinds Obama DE Dear from Trump ED Colleague letter, removes deadline for prompt IHE investigations of grievances, announces active cases may be closed due to new regulations 2020 Trump ED Title IX Limits IHE scope of responsiregulations bility, mandates quasi-criminal trial rights in IHE sexual misconduct proceedings

2021 March directive from Requires reexamination of Biden to ED 2020 Title IX regulations to possibly suspend, revise, or rescind them

5 Racial Bias and Violence in Policing

in May 2020 was captured on video and has become a pivotal 8 minutes and 46 seconds in our country’s history.1 Floyd’s death dramatically focused attention on the institution of policing as a site of racially biased criminal justice and use of excessive and deadly force against Black and Brown civilians, accelerating developments in law and policy relevant to our analytic framework. After the death of George Floyd, protest marches erupted across the nation, with the New York Times reporting that demonstrations had occurred in every state and in many places outside of the United States (Burch et al. 2020). The killing of Floyd catalyzed rising concern about a series of police killings of Blacks, especially young Black males, and the protests that followed changed public opinion, increasing agreement that systemic racism is a serious problem in policing (Tesler 2020). Claims that police killings were the result of a few “bad apples” have been replaced by the recognition that the flaws are a result of the structure, culture, and political directives driving policing practices. These changes have prompted reexamination of police accountability and the relationship between the police and the public. National protests, with broad public support, call for reform and reorganization of the policing institution, with some people advocating to reduce police funding and shift policing functions to other organizations and professions. This movement has triggered counteractions that seek to preserve the status quo, not only by police administrations and police support organizations, but also by “law and order” advocates. This chapter considers inequities in policing and the illegal use of force, especially in

The killing of George Floyd at the hands of the Minneapolis police

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law enforcement encounters with people and communities of color, and examines actual and potential institutional developments to control these social problems. (See Table 5.1 at the end of the chapter.) The chapter plan is first to review evidence related to racialized policing. We then discuss several key institutional structures that permit and/or promote racial bias and violence in policing, including “qualified immunity” and the “reasonable officer” standard of conduct. Finally, we consider several recently enacted or proposed institutional reforms, including policy reform, enhanced officer training, increased use of surveillance technology for monitoring police activity, and structural reforms of police departments. All of these reforms are designed to promote policing justice and equity, reenvision the police mission and public safety apparatus, and help build community trust, particularly in communities of color where people have been the most negatively affected by policing bias and violence. The United States is a democracy and our constitution guarantees equal protection under the law, so we might reasonably expect that fairness and equality would be cornerstones of criminal justice and that laws would protect racial and ethnic minorities from bias, illegal use of force, and other abuses by police. Unfortunately, there is rising doubt that this democratic ideal is being realized and increasing public awareness and criticism of contemporary policing practices. Ample evidence exists of a pattern of racialized policing in our country, including historically institutionalized biases and discriminatory practices. Moreover, in most instances of on-duty shootings or deadly violence, the officers involved are not criminally charged, tried, or convicted for use of excessive force, and at least until recently, prosecutions or convictions on charges of murder or manslaughter have been rare. Thus, current public discourse and protest focus on how to achieve racial justice and community trust in policing, and how to mitigate the accumulated harms of overly aggressive “get tough” policing on persons and communities of color. The institution of policing operates as an inherently coercive mechanism of social control. Unlike any other peace-time occupation, police officers possess the legal and legitimate authority and right to use force on the public (including deadly force) in appropriate circumstances (Reiss 1971). Moreover, criminal justice scholars Jerome Skolnick and James Fyfe have predicted that “force will remain an inevitable part of policing” (Skolnick and Fyfe 1993, p. 37). Since the establishment of the first centralized American municipal police force in the 1830s, a military and war-like model has dominated the mission and structure of policing. Police departments are organized according to a military-like structure centered on rules, disci-

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pline, authority, and accountability, and on a hierarchy that includes ranks, insignia, and designated chains of command. Unlike soldiers in wartime, however, who have minimal discretion and follow the commands of their superior officers regarding use of force to defeat “the enemy,” police officers are public servants with broad discretion, whose main task is to “keep the peace” and protect the citizenry and to only use force as a “last resort” (Bittner 1967b; Boyes-Watson 2003). A military model of policing increases the likelihood that officers will use excessive and fatal force in police-civilian interactions (Boyes-Watson 2003). Military metaphors, such as the “war on drugs” or “war on crime,” commonly have been used to describe contemporary policing activities and are familiar depictions of the police mission. Policing practices pursued during the war on drugs—such as racial profiling of motorists and suspects, “stopand-frisk,” and zero-tolerance policing—resulted in racially disparate arrest rates for marijuana possession in cities like New York City and Los Angeles (Angell 2020). Such law enforcement practices contributed to large racial disparities in incarceration and punishment (see Chapters 6 and 8). While race-based bias and violence in policing are linked to larger historical and sociocultural processes that have institutionalized structural inequities and injustices, this chapter focuses on the institution of policing itself. From the history of slavery, slave patrols, and related institutions, to local sheriffs enforcing Jim Crow laws, to urban policing to maintain segregation and White supremacy, American policing has been a central tool of racial control and the racially disparate administration of justice in the United States. As Yale professor of Economics and African American Studies Gerald Jaynes notes, “policing and racially biased justice are not merely by-products of a racially divided society but have been the bedrock of race relations” in the United States (Jaynes 2020, p. 42). Racially biased policing practices and the disproportionate use of violence and lethal force against persons and communities of color are not new developments. Indeed, “police-involved killings of black individuals have . . . plagued communities of color for generations” (Lee and Ifill 2017, pp. 257– 258, emphasis added). Overt and explicit racial discrimination, as well as implicit bias in policing, are persistent problems throughout our country’s history and have caused significant fear and lasting damage to communities of color. As Lee and Ifill point out, “police-involved killings of black individuals are merely the tip of the iceberg in terms of the systematic racial discrimination in law enforcement” (Lee and Ifill 2017, p. 260; also see Rios 2011). Stereotypes of Black criminality and dangerousness underlie this bias and discrimination and are “the product of the long-standing dehumanization of

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black people throughout American history” (Lee and Ifill 2017, p. 260). The criminal justice system singles out and targets Black people (and other nonWhite and Indigenous people) for enhanced scrutiny, monitoring, and control, and for state-created violence (Chambliss 1999; Quinney 2001; Reiman 1996). The huge number of arrests of Black and Brown citizens for low-level drug offenses demonstrates race-based police bias that has unfairly affected people and communities of color and produced mass criminalization and mass incarceration tied to draconian drug sentencing laws and policies (Alexander 2010). Racial bias is evident in a range of questionable police practices that are disproportionately deployed when police interact with non-White people, such as racial profiling (McDonald-Hutchins 2017), “pretext” stops, intrusive stop-and-frisks, and neighborhood “sweeps” (Chan 2011; Meares 1998, 2014; Tyler, Fagan, and Geller 2014; Meehan and Ponder 2002), and the overall hyper-surveillance of Black and Brown youth (Geller et al. 2014). Although no one knows the exact number of fatal police shootings each year, the official numbers are not declining, despite lower crime rates up to 2020. Moreover, the New York Times recently reported that “more than half of police killings are mislabeled” and that “about 55 percent of encounters with police between 1980 and 2018 were listed as another cause of death” (Arango and Dewan 2021). Researchers estimate that during that period, almost 31,000 Americans “were killed by the police, with more than 17,000 of them going unaccounted for in the official statistics” (Arango and Dewan 2021). The official numbers are also underestimated because reporting by police departments is voluntary and there is no official comprehensive database on police shootings, killings, or deadly force incidents (Lee and Ifill 2017; Sullivan et al. 2017). The Washington Post began tracking national rates of fatal on-duty police shootings in 2015, in the aftermath of the 2014 police shooting of Michael Brown in Ferguson, Missouri. In 2017, it published an article reporting data on the number of police shootings for the first half of 2017 through June. The authors suggest that “the number of fatal police shootings through June were almost identical with the preceding two years” and that the number of fatal police shootings is fairly stable at approximately 1,000 per year (Sullivan et al. 2017). Most relevant here, the article reports that police continue to shoot and kill a disproportionately large number of Black males (McCarthy 2020). Police on-duty killings of Black males represent approximately 25 percent of all such deaths, while Black males comprise only approximately 6–7 percent of the US population. Thus, Black males face an almost fourfold risk of being killed by police compared to the rest of the population. It is important to note that the excess of Black males killed by police is not a result of Black males being more likely to engage in shoot-outs with police. Black males comprise a disproportionately large number of unarmed

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people who are killed—26 percent in the first six months of 2017, down from 32 percent in 2016 (Sullivan et al. 2017). During the first six months of 2015, Blacks killed by police were twice as likely as Whites to be unarmed (Davis 2017, p. xvi). Of course, “it is unclear how many more police-involved deaths and beatings of black individuals have occurred without widespread public notice” (Lee and Ifill 2017, p. 257; Sullivan et al. 2017). Katheryn Russell-Brown (2017) contends that police officers perceive Black males to be more dangerous than White males and thus more frequently shoot them when they are unarmed (Eberhardt 2004; Rios 2011).2 Hispanic and Indigenous people also die at disproportionately high rates at the hands of police violence (Egelko 2019; Schroedel and Chin 2020). For example, in California, Hispanics accounted for nearly half of the total police killings during 2017 (Egelko 2019), while an estimated 39 percent of Californians are Hispanic ancestry as of July 2019 (US Census 2019). Public awareness of race-based policing practices and calls for greater accountability have increased recently, in large part because police-citizen encounters are now being captured on video recordings, which are often widely shared and viewed by thousands of people on the internet, becoming “viral videos” (Lynch 2019). The massive use of “smart phone” technology allows ordinary people to record the details of police-citizen interactions as they unfold. These recordings frequently are posted on social media platforms like YouTube, Facebook, or Twitter, garnering widespread public attention, often before the incident is covered by formal news media and before public accounts are provided by police officials (Schneider 2018). Therefore, as Schneider points out, “the era of strict police control and management of crime narratives is largely gone” (Schneider 2018, p. 121). Problems of bias and illegal force in police interactions with young Black and Brown males in the United States (and other men and women of color) are nothing new. However, the highly publicized on-duty police killings of Stephon Clark, Eric Garner, Michael Brown, Freddie Gray, Laquan McDonald, Walter Scott, Alton Sterling, Philando Castile, and more recently Breonna Taylor and George Floyd, to name just a few, have increased public awareness of how prevalent and enduring this problem is. As a result, protest against discrimination and violence in policing has risen to an extent not seen since the civil rights movement of the 1960s. The Black Lives Matter social movement came into being in response to the fatal police shootings of Black men after George Zimmerman, a neighborhood watch volunteer, was acquitted in 2013 on second-degree murder charges in the Florida killing of Trayvon Martin (see Chapter 3). A competing social movement, Blue Lives Matter (“blue” referring to the color of police uniforms), emerged a few years later in the aftermath of the 2016 deaths of the five Dallas police officers who were killed by a hate-motivated shooter while police were on duty patrolling to uphold the constitutional

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rights of citizens who were peacefully protesting the deadly police shootings of Black men. These racially polarized movements echo the racially divergent reactions to the 1994 O. J. Simpson trial and verdict of acquittal on double murder charges (Hunt 1999) and reflect the divergent perspectives of different communities on the issues of racial bias and violence in criminal justice, particularly in policing. Common-sense explanations of negative police behavior often assume that they probably were either (1) the result of overt racism by a “rogue” officer or “bad apple” or (2) deserved by the recipient because of their criminal acts. However, social scientists recognize that individual behavior also is influenced by the structures and systems within which people live and work. Below, we examine how and why the criminal justice system rarely holds police officers accountable or punishes them for unlawful violence and has not required individual officers to adhere to the duty of care that an evolving body of professional training and practice has established. We review the current state of the law related to police misconduct and illegal use of force (i.e., legal doctrines and court rulings) and identify potential barriers that too often shield police officers from criminal responsibility and/or civil liability for unlawful conduct.

Institutional Foundations of Policing Bias and Violence

The “Reasonable Officer” Test of Police Use of Force In the case of Graham v. Connor, 490 U.S. 386 (1989), the US Supreme Court set forth the legal standard for the permissible use of deadly force, stating that it requires consideration of the “totality of the circumstances” bearing on the use of force, as assessed from the perspective of a “reasonable officer on the scene.” US constitutional law thus uses a vague “reasonable officer” standard that authorizes the use of deadly force whenever a “reasonable officer” would use deadly force. The narratives that are commonly accepted by juries, or that accompany the judge’s interpretation of these “circumstances” emphasize the need for officers to make “split-second decisions” in “rapidly evolving circumstances” (Plumhoff v. Rickard 134 Supreme Court 2012, 2020 (2014)). This emphasis, however, ignores situations where it would have been possible for the police to have secured the situation without use of deadly force, and/or where the “circumstances” are an avoidable product of the officers’ own poor decisionmaking in the moments leading up to the use of force (Meehan 2020). Stacy Burns’s research on demonstrating “reasonable fear” in court is pertinent to the claims and arguments routinely asserted by police officers accused in incidents of excessive force and deadly violence. Burns examines how different participants in a criminal murder trial claim, assert, dis-

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pute, and ultimately demonstrate the “reasonableness” (or “unreasonableness”) of the accused person’s fear at the time of the killing (Burns 2008). Likewise, the defense presented by most police officers in cases of on-duty violence is that the officer perceived there to be an imminent threat of death or serious bodily harm to the officer and/or others on site, and thus that the officer experienced “reasonable fear” at the time the force was used. Police officers often are able to establish that their actions were justified, even when seemingly egregious. The “reasonableness” standard protects on-duty police who kill even when it is not “necessary”—that is, when it would have been possible to de-escalate the situation or to use alternative (nondeadly) means to secure the situation. With some exceptions (e.g., California, as discussed later in this chapter), police officers today generally are not required to use deescalation tactics or lesser levels of force or to exhaust alternatives to deadly force. Despite calls for greater police accountability and the fact that “reasonableness” under the law always has been defined relative to evolving community standards, acquittals of police officers are the common result. This is because legal decisionmaking focuses on the “reasonableness” of the accused police officer’s perceptions at the moment of the shooting and his or her belief in the need to use force, and not on the “reasonableness” of the officer’s conduct in the moments leading up to the deployment of deadly force (Lee 2018; Meehan 2020). The prevailing standard does not consider whether it was possible to secure the scene and de-escalate the situation or whether lesser alternatives to deadly force on the force continuum could have been used (Lee 2018). In presenting the defense for accused officers, an attempt is typically made to establish a perceived threat, even where no threat was present, and much deference is paid by jurors to officers’ own statements that they perceived the threat to be real. The jury’s task is to decide the facts in a case of alleged criminal or tortious conduct by police, but if the victim of police violence is dead, that decision typically turns on whether the officer is credible. Although the “reasonableness” of an officer’s belief is not the legal standard for criminal responsibility (as it is for civil liability), it is relevant to a determination by the trier of fact of the officer’s state of mind at the time of the incident and is thus key to assessing criminal blame and responsibility.

The Civil Doctrine of Qualified Immunity The killing of George Floyd brought the legal doctrine of qualified immunity (QI) into prominence and prompted debate over the future of the doctrine (De Burgh 2020). QI is a court-created doctrine that is asserted by police officers as an affirmative defense in civil lawsuits (but not criminal prosecutions) alleging tortious conduct and/or constitutional rights violations, usually involving excessive use of force. In order to decide if the QI doctrine applies

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and the accused officer is protected by the defense, the court must determine (1) whether the statutory or constitutional right at issue was “clearly established” at the time of the officer’s actions and (2) whether the facts alleged in the plaintiff’s complaint represent a violation of law (Pearson v. Callahan 555 U.S. 223, 232 (2009)). One of the most surprising QI rulings to date was in the US Court of Appeals case of Jessop v. City of Fresno, 936 F.3d 937 (9th Cir. 2019), where the court granted qualified immunity to police officers who deliberately stole $225,000 under the guise of executing a search warrant. The court held that “there was no clearly established law holding that the officers violated the 4th or 14th Amendment when they steal [sic] property pursuant to a warrant.” In many cases, the court decides the case solely on the basis of the “clearly established” criterion and does not consider whether there was a constitutional violation. And, even when constitutional rights are violated, there may be no remedy if officers are entitled to QI, although a reasonable fact finder could conclude that they used excessive force (e.g., Mattos v. Agarano, 661 F3d 433 (9th Cir. 2011), where officers tasered a seven-months-pregnant Black woman three times in under a minute). The “clearly established” prong of the QI test is a catch-22 whereby officers cannot be found liable when no one has been previously found liable for the same conduct. If there is no existing precedent, then there is no clearly established law and hence no liability. Thus, QI makes it almost impossible for claimants to prevail in civil lawsuits against police. The doctrine also makes it less likely that civil cases will be brought in the first place (i.e., because plaintiff’s lawyers would be reluctant to take such a case on a contingency fee basis in which payment to the lawyer is dependent on a monetary recovery). A 2018 US Supreme Court decision essentially conferred immunity on an on-duty police officer who shot a person in her own front yard. Kisela v. Hughes was a civil rights case brought in federal court by a White woman (Amy Hughes) who had been shot by a police officer (Andrew Kisela). Three police officers responded to a 911 call and when they arrived saw another woman (Sharon Chadwick) standing in the driveway. The officers then saw Hughes walk toward Chadwick while holding a kitchen (butter) knife in one hand; the knife was at Hughes’s side, pointed down and away from Chadwick. The officers drew their guns and shouted a command at Hughes to drop the knife. Chadwick told everyone, including the police to “take it easy,” but Kisela suddenly fired three shots at Hughes, who was about 6 feet away from Chadwick at the time. Hughes was seriously injured and sued Kisela for violating her right to be free from excessive force under the Fourth Amendment. The federal district court granted a summary judgment absolving Kisela, but the Ninth Circuit Court of Appeals reversed that judgment, finding that a rational jury could conclude that Hughes did not make any threat-

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ening gestures toward Chadwick or the officers and there was no immediate threat to justify Kisela’s use of force, so the officer violated Hughes’s Fourth Amendment rights by using excessive force. In its opinion, the Court of Appeals emphasized inconsistencies between Kisela’s asserted subjective belief that Hughes was threatening Chadwick and evidence that his actions were objectively unreasonable, including testimony from the other police officers who were present at the scene that they did not believe there was any threat of immediate harm to Chadwick. The Ninth Circuit cited as precedent other cases that had found it to be unreasonable for a police officer to shoot a suspect who was holding a weapon, with the key factor being that the suspect was not threatening anyone with the weapon at the moment the officer fired. The US Supreme Court granted Kisela’s petition to review the decision in Kisela v. Hughes and granted summary judgment to Officer Kisela, thereby reversing the judgment of the Ninth Circuit Court. In effect, the Supreme Court disregarded the evidence presented and cited by the circuit court to support its finding that a rational jury could conclude that there was no immediate threat and thus that Officer Kisela’s conduct was not objectively reasonable. However, Justice Sonia Sotomayor wrote a dissenting opinion in which Justice Ruth Bader Ginsburg joined. The dissent criticized the majority opinion of the Court for “misapprehend[ing] the facts and misapply[ing] the law, effectively treating qualified immunity as an absolute shield” that would allow police officers to “shoot first and think later.” The generally permissive perspective of the US Supreme Court under Chief Justice Roberts toward instances of racial violence and bias in policing also is evident in the case of Utah v. Strieff, where the accused was stopped by police officers who believed he was engaged in drug activity, but who lacked “reasonable suspicion” (i.e., the legal standard to justify an investigatory stop). The majority opinion held that police can use evidence found after an illegal stop in a subsequent criminal prosecution. In her dissent, Justice Sotomayor suggested that our society polices non-Whites differently from other racial and ethnic groups, and that Black males are the most negatively affected group. Her dissent referred to Michelle Alexander’s book The New Jim Crow (2010) and noted that although Edward Strieff is a White man, “it is no secret that people of color are disproportionately victims of this type of scrutiny” and that “in his search for lawbreaking, the officer in the case himself broke the law” (Utah v. Strieff, 136 Supreme Court 2056, 2065 (2016); and see Tyler and Meares 2014). Justice Sotomayor’s dissent suggested that the Supreme Court’s majority opinion permits police officers to act in an unconstitutional manner that violates the rights of people, especially persons of color, in order to arrest, charge, and obtain evidence used to convict them.

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Despite these decisions, there is a growing consensus that QI is unjustified and there is evidence that the immunity shield for police is starting to crack. Several recent appellate court cases have blocked the QI defense in police shooting and deadly force cases. In the immediate aftermath of the George Floyd killing and the continuing Black Lives Matter protests, the Fourth Circuit Court of Appeals spoke out against the doctrine of QI in Estate of Jones by Wayne Jones v. City of Martinsberg W. Virginia, 182142 (4th US Cir. June 9, 2020, as amended June 10, 2020). Wayne Jones was a Black man who was experiencing homelessness and had been diagnosed schizophrenic. He was stopped by police for walking in the road, instead of on the sidewalk as required by a state law and a city ordinance. When the officer asked to search Jones for weapons, the encounter escalated. Jones was armed with a small knife tucked into his sleeve. By the end of the encounter, Jones had been tasered four times, hit in the nerves from the spinal cord in his neck and down his arm, kicked and placed into a chokehold, and shot dead. The federal district court for the Northern District of West Virginia granted summary judgment for the defendant officers, and the estate appealed (Estate of Jones by Jones v. City of Martinsberg, W. Virginia, 2018 WL 4289325 (US Dist. Court, N.D. West Virginia)). The federal appeals court reversed the summary judgment granted for the officers based on the doctrine of QI and vacated the lower court’s dismissal of the estate’s claim for two reasons. First, viewing the facts in the light most favorable to the plaintiff (as the court is required to do on summary judgment), a reasonable jury could find that Jones was shot after he was secured. Second, even if the jury found he was not secure before the fatal shooting, there was still a triable issue of fact, and a jury could still reasonably find that he was incapacitated at the time he was shot. The court concluded its decision with a long statement condemning racialized police violence, which is worth quoting in full: Wayne Jones was killed [in 2013], just over one year before the Ferguson, Missouri [fatal] shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later [in 2020], we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept. The district court’s grant of summary judgment and the dismissal of that claim is hereby vacated (quoted in Robinson 2020, emphasis added).

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In another example (Nehad v. Browder, 2019 DJDAR 6438 (9th Cir., July 11, 2019)), the Ninth Circuit US Court of Appeals blocked QI in a police shooting case, reversing the lower court’s findings and grant of summary judgment based on QI. In this case, police responded to a misdemeanor call, and the officer involved at first did not say that he saw the suspect with a knife but later described fear of being stabbed. The ruling stated that there were triable issues of fact, reasoning that the officer’s credibility, possible nonlethal alternatives, and a debatable threat were issues of fact for the jury to decide. In fact, the suspect was carrying a metallic blue pen and was unarmed, posing little or no danger. In June 2020, the US House of Representatives passed HR 7120, the George Floyd Justice in Policing Act, which proposed to revise the standard for legitimate use of force by federal law enforcement officers, focusing on whether the force used was “necessary” rather than “reasonable.” The act abolished or substantially limited QI as a shield for police officers who violate the law. The bill also included provisions for classifying “choke holds” as a civil rights violation and barring “no-knock” warrants in federal drug cases. In addition, the bill enhanced DOJ oversight of local police departments and “pattern and practice” investigations of such units where indicated. However, the Republican leadership in the US Senate has indicated it will not accept legislation to end QI, and several Republicans have proposed alternative legislation to address police misconduct. In September 2021 bipartisan Senate negotiations to reach a compromise collapsed, ending consideration of the bill. Thus, federal action to address this problem will require a change in political strategy or representation. However, each state can enact its own use-of-force standard (which may be more restrictive than what the federal constitutional law requires). For example, California recently changed its standard for lawful police use of deadly force from “reasonable” to authorizing police officers to only use “necessary” force (Assembly Bill 392, the Stephon Clark Law).3 The bill, which was passed and signed into law in August 2019 (effective January 1, 2020), was enacted after a long process of discussion and compromise between civil rights groups and law enforcement groups. Many law enforcement and victim’s rights groups spent months arguing over just what the final version of Assembly Bill 392 should look like. Police groups expressed concern that the bill could cause officers to hesitate in acting in a context where split-second decisions are vital and they argued that the law was too complex and detailed for police officers to apply it when making rapid and sometimes split-second decisions. A key change in the final law that was enacted allows officers “to evaluate each situation in light of the particular

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circumstances” (Maclachlan 2019), while still requiring that deadly force only be used “when necessary in defense of human life.” Nonetheless, California now has the strictest police use-of-force law and policy of any state in the nation. The law changes the standard for police use of lethal force from a subjective “reasonableness” standard (based on what the officer knew and believed at the time), to the requirement of objectively reasonable force only when “necessary.” Under this standard, an officer may only use deadly force that a reasonable officer would use when facing similar circumstances—that is, when circumstances create an objectively reasonable belief that it is immediately necessary for the officer to use deadly force to prevent the death of the police officer or another person in the immediate area. In addition, the bill requires authorities to examine the officer’s conduct leading up to the shooting, including if attempts were first made by the police to de-escalate the situation, or to use less than lethal force (Cowan 2019). This broad time frame of relevant events leaves much discretion to police and much leeway to prosecutors, defense attorneys, judges, and juries to interpret, argue, and evaluate the officer’s conduct under the “totality of the circumstances.” California is a useful setting for observing how a new use-of-force “law-on-the-books” will get implemented into the “law-in-action” in court and in actual police-civilian interactions. The “necessary” standard will make it easier for prosecutors to criminally charge police officers and prove their case for illegal use of deadly force, which may result in more criminal, civil rights, and wrongful death lawsuits. And it likely will be harder for the defense to prevail than under the previous standard, because the defense will need to show that the officer reasonably believed that using lethal force was the only way to save themself and/or someone else who was in immediate danger. The law also will likely affect how civilians and communities come to view encounters with law enforcement, hopefully decreasing police-involved killings and producing safer communities. Police departments train their officers in the levels of force appropriate to particular kinds of circumstances. Until recently, police departments narrowly focused policies and training on legal codes, statutes, and procedures, such as how to make an arrest or render first aid, with an emphasis on police officer fitness and safety. But this training did little to address the unlawful police bias and violence in interactions with citizens, especially those from diverse communities. Overall, police training has not dealt with the factors that are fundamental to community trust in policing. Thus, the success of any training reform effort requires a close understanding of policing practices in everyday life and how such practices facilitate (or impair) the building of community confidence and trust.

Police Training as a Reform Strategy

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Innovative training programs are being developed to deal with issues of emotional self-awareness and use of effective communication strategies by police. For example, the President’s Task Force on 21st Century Policing concluded that police officers who remain calm yet vigilant are less likely to use force inappropriately, especially in encounters with impulsive youth, the mentally ill, or active substance abusers (President’s Task Force on 21st Century Policing 2015). This suggests that officers need to be aware of their own emotional arousal in stressful situations and make efforts to avoid actions inconsistent with good policing practice. Police departments in several large cities are currently experimenting with innovative officer training programs based on the research of Meares and Tyler (2017) and Goff and colleagues (2008), and state funding has increased to train officers in de-escalation tactics and use of tools other than lethal force. In addition, the concept of “implicit bias” has become a central focus in reforming police training. This involves understanding “the workings of unconscious mental processes to uncover which traits and characteristics individuals associate with various racial groups. . . . Implicit bias has emerged as the go-to explanation for racial discrimination and racial bias within the justice system” (Russell-Brown 2017). Implicit bias and sometimes explicit bias are reflected in police abuse of discretion (Goff et al. 2008; Tyler, Goff, and MacCoun 2015), when police (and other criminal justice officials) rely on racial stereotypes, biases, and assumptions of Black dangerousness and criminality that may be institutionalized in policing policies and practices. The flip side of implicit racial bias is “White privilege” or favoritism, which “refers to the process by which someone unconsciously links positive attributes with members of a particular group, leading to preferential treatment [by police] for the favored group” (Russell-Brown 2017; also see Smith, Levinson, and Robinson 2015), and which may lead police officers to decide not to invoke the formal criminal law where it otherwise would be appropriate. In 2015, then California attorney general Kamala Harris established the nation’s first certified program on implicit bias and procedural justice (Russell-Brown 2017). Law enforcement agencies in Los Angeles and San Francisco already have implemented this training process, and data are being collected to evaluate the changes being implemented. Scholars and police administrators hope that police abuses can be reduced through such training, by teaching officers to recognize unconscious race-based stereotypes and expectations of Black criminality and dangerousness that may lead them to behave in biased and aggressive ways in police-citizen encounters. Another piece of innovative legislation in California is Senate Bill 230, Law Enforcement: Use of Deadly Force: Training: Policies (2019, effective January 2020), which modernizes California’s use-of-force training and related requirements for law enforcement officers and agencies, building the

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infrastructure for meaningful and lasting change. Although the law explicitly recognizes that “no policy can anticipate every conceivable situation or exceptional circumstances which officers may face, officers are [nonetheless] expected to exercise sound judgment and critical decision-making when using force options” (Senate Bill 230, § 1 [2019]). In particular, the law requires all law enforcement agencies to update their use-of-force training and policies and “by no later than January 1, 2021 [to] maintain a policy that provides a minimum standard on the use of force.” In addition, each agency’s policy must incorporate twenty specific requirements, including that “officers utilize de-escalation techniques, crisis intervention tactics, and other alternatives to force” and that “an officer may only use a level of force that they reasonably believe is proportional to the seriousness of the suspected offense, or the reasonably perceived level of actual or threatened resistance.” The law requires each law enforcement agency to maintain a use-of-force policy, including “comprehensive and specific guidelines for the application of deadly force.” Officers who fail to use de-escalation techniques may face administrative discipline, but not necessarily civil liability. Senate Bill 230 also seeks to change the culture of policing by requiring that each agency’s use-of-force policy include the provision that “officers report potential excessive force to a superior officer when present and observing another officer using force that the officer believes to be beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances [and] based upon the totality of information actually known to the officer.” In addition, Senate Bill 230 establishes that each agency’s use-of-force policy must include a duty to intervene—that is, the requirement that “an officer intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances, taking into account the possibility that other officers may have additional information regarding the threat posed by a subject.” These policies create the potential for joint liability of other officers who are present or supervising at the scene if they fail to report or intercede in such incidents. The final mandate requires that police agencies conduct “the regular review and updating of the policy to reflect developing practices and procedures.” Although the increase in development and implementation of training programs to reduce implicit bias and policing strategies that result in violence is laudable, there is little evidence that existing programs are effective in improving policing outcomes (Weir 2016). Numerous interventions have been found effective in reducing implicit bias in the general population, but their effects have been temporary, lasting only days (Weir 2016). Experts cited by Weir indicate that it is necessary to “build in structures and procedures that help overcome the tendencies” to act on implicit biases, including technological strategies for monitoring and supervising policing performance during encounters with civilians.

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Since the 1991 police beating of Rodney King (which would not have come to light without the video recording made of the event by an amateur citizen videographer/journalist), technology has strongly affected the criminal justice process, and reliance on technological innovations can be expected to continue. Body-worn cameras and dashboard cameras are now a routine part of police procedure and used on a regular basis in policing (Ripley 2017). Many police departments currently mandate that officers wear and use body cameras to document police-citizen encounters as they step out of view of their dashboard cameras. These recordings sometimes capture incidents of policing violence and misconduct, providing potential evidence in internal police investigations, disciplinary proceedings, and the resolution of civilian complaints, as well as in criminal prosecutions, in civil suits for money damages, or in seeking institutional reform. Mandatory videotaping by on-duty police is part of various reform efforts and initiatives directed at increasing the transparency and accountability of policing and reducing instances of illegal police use of force and other misconduct. The aim of such reforms is to improve policing and community trust and reduce the insulation and isolation of police officers from the people and communities they patrol and protect. Yet, even with video recordings of incidents of police-involved violence, “believe what you see” on video does not always hold true. Video recordings are not self-interpreting and do not “do the work of explicating the sense or motive of police actions” (Watson and Brantford 2018, citing Goodwin 1994; and compare Mnookin 1998). Rather, police use-of-force experts often are employed by the defense and/or prosecution to provide expert evidence to assist the judge and/or jury to determine whether the officer’s use of force in a specific case complied with police use-of-force procedures and training (Goodwin 1994). The competing lawyers’ claims, evidence, and arguments provide a distinctive way of ordering the facts and events at issue and propose a theory of correct judge/juror decisionmaking (Garfinkel 1967; Peyrot and Burns 2001). In order to decide the officer’s responsibility and accountability, the judge and/or jury must interpret the relevant facts and events and determine “reasonableness” based on all available evidence (including video recordings, testimony of the involved officers and witnesses, the coroner’s report, the crime scene investigation report, etc.). Police training, regulations, and the applicable substantive criminal (or civil) law also must be taken into account. Michael White’s research (2014) on the use of body-worn cameras by police suggests it may increase public perceptions of police legitimacy and favorably alter both police and suspect behavior, and that cameras can also be used to reform police training. Likewise, additional studies have found that officers with body-worn cameras had fewer citizen complaints filed against them (Katz et al. 2015; Ariel, Farrar, and Sutherland 2015) and fewer police use-of-force incidents (Ariel, Farrar, and Sutherland 2015).

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However, a subsequent multisite, randomized controlled trial determined that while use-of-force incidents decreased when officers activated their camera on arrival at the scene, use-of-force incidents increased when officers had discretion to decide when to activate their cameras during policecitizen encounters (Ariel et al. 2016). In addition, researchers recently published a comprehensive review of seventy empirical studies of the impact of body-worn cameras on policing and found mixed results for the effects on police use of force (Lum et al. 2019). The authors concluded that bodyworn cameras “have not had statistically significant or consistent effects on most measures of officer and citizen behavior or citizens’ views of police” (Lum et al. 2019, p. 93). Thus, police body-worn cameras are not having the benefits anticipated by many supporters. White (2014) also notes that the use of body-worn cameras can raise privacy concerns, such as the recording of a victim or confidential informant, as well as privacy concerns for officers who may be undergoing an internal investigation, and these concerns complicate the admissibility of such evidence in legal proceedings. White further notes that there is currently no agreement across different police agencies and departments on when the cameras can and should be turned on and off by police officers. Obviously, if police officers are permitted to control when the camera recording is turned off or on, this would substantially reduce the deterrent and evidentiary value of mandating the use of body and dashboard cameras. There is little consensus across states in terms of whether and when footage of police-citizen encounters should be released to the public, and there are different rules about who can get access to the videos when questions are raised about an officer’s conduct. But some states like California are implementing open-records laws and policies (see below). The benefit for law enforcement is that these records will provide greater transparency and allow policing agencies to demonstrate accountability to the public. Fewer complaints have been filed against Los Angeles Police Department officers since the department instituted the use of body-worn cameras in August 2015 (Seidman 2018), suggesting that recording technology can be a useful tool in reducing policing bias and violence and improving community trust. However, use of this tool is neither unproblematic nor sufficient in itself. Police officers must be trained to conduct their activities in ways that effectively manage everyday police-citizen encounters without unnecessary bias or violence. Inevitably, police are called upon in “rapidly evolving circumstances” (Plumhoff v. Rickard (2014)) to use their training to de-escalate and defuse potentially dangerous situations, using alternatives to deadly force whenever possible. Albert J. Meehan has been closely investigating police-citizen interactions, using as data video recordings from police dashboard cameras and body-worn cameras (Meehan 2018; and see Meehan and Ponder 2002). Meehan stated that “available audio-visual records were usable systemati-

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cally to examine how police ‘make sense’ in the here and now” (Meehan 2018). Meehan’s latest research (2020) examined body-worn camera footage of police-citizen encounters to analyze the interactional grounds for understanding the “reasonableness” of a police officer’s conduct. He found that officers’ tactical mistakes escalated confrontation and created the danger that led to the eventual use of deadly force, which the officer then used to justify the shooting. Thus, the potential penalty for a mistake by an untrained civilian who is forced into a frightening police encounter (and may be under the influence of drugs and/or alcohol or having a mental health crisis) is a “justifiable” death. The reforms described above include swift prosecution, disciplining, and firing of criminal officers without blanket immunity; changes to use-offorce standards (including banning chokeholds and no-knock warrants); improved training policies and practices, such as establishing a duty to deescalate confrontations and a duty to report or intervene in situations in which other officers use excessive force; and use of surveillance technologies for monitoring, supervision, and training. While each of these reforms may contribute to a reduction in police bias and violence, none of these policies is likely to resolve these problems by itself. As noted in Chapter 3, multiple strategies are required to achieve maximum benefit. Moreover, many critics of policing believe that more fundamental changes are needed, including structural reforms to the policing institution. In the aftermath of the police killing of George Floyd, both proponents and opponents have described such reforms using the term defunding the police, although this term is a misnomer in that the changes do not involve eliminating police protection of personal and property rights. The demand for structural reform is based on the belief that the nature of the existing policing institution makes other policing reforms less likely to occur and less likely to be effective once implemented. Structural problems include systemic corruption, militarization, mission creep (e.g., police dealing with mental health problems), lack of community oversight, defiance of political authority, and self-policing (police investigation and sanctioning of fellow officers). These problems are not amenable to one-officer-at-a-time solutions. Moreover, civil service rules, labor laws, police union contracts, and police lobbying organizations may further constrain discipline and punishment of misconduct by individual police officers. In the face of police institutional intractability and inertia, municipalities have developed several alternative strategies. When possible, municipalities may shift funding from the police to another public agency. For example, in August 2020 the Seattle City Council voted to strip about $3 million from that city’s police department, trimming up to 100 officers as

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part of a push to change policing in Seattle fundamentally. After approval of these measures, the Seattle police chief, Carmen Best, announced her retirement, stating, “I look forward to seeing how this department moves forward through the process of re-envisioning public safety” (Elfrink 2020). Other high-profile police chiefs have also left their positions since George Floyd’s death, including in Atlanta, Portland, Nashville, and Louisville (Elfrink 2020), the city where Breonna Taylor was killed after three officers shot into her apartment while executing a no-knock search warrant.4 In November 2020, Los Angeles voters approved Measure J, known as “Reimagine LA,” which requires that 10 percent of the city’s unrestricted general funds be invested in social services and alternatives to incarceration, not policing and prisons (see Pialet 2020). In some jurisdictions, the structural problems are so severe and so integral to departmental functioning that a partial reallocation of funds may not be adequate. Municipalities in this situation may disband their police departments and get policing services from a neighboring municipality or the county in which they are located. In 2013, Camden, New Jersey, became the first police department in the United States to disband, reorganize under county control, and be rebuilt with a focus on crime prevention and community policing. This allowed rehiring of former officers suited to the new policing philosophy (about 100 officers were rehired) without having to deal with labor laws, civil service regulations, or union contracts regarding dismissal of officers unsuited to the new policing philosophy. Also, following the May 2020 police killing of George Floyd in Minneapolis, the Minneapolis City Council stated its intention to implement a disbanding and reorganization of its police department, although it remains to be seen how this initiative will develop (Levin 2020). Another structural reform is to increase community oversight of law enforcement. The publication on community advisory groups entitled Redefining Policing with Our Community (Los Angeles County Commission on Human Relations 2020) suggests that overall such groups are “wholly inadequate and may even curtail the advancement of equity by encouraging a false sense of accountability.” The report recommends enhancing civilian review by “increased monitoring of policing by stronger civilian oversight bodies with substantial investigatory and enforcement authority, including subpoena power” (p. 31). For example, one year into the consent decree (i.e., negotiated agreement) with the DOJ, the monitoring team for the Baltimore Police Department concluded that “a comprehensive public safety strategy” in the city “should include all components that make a community strong” (Bryan and Huffman 2019). The monitoring team is advancing “micro-community policing plans [that] allow each community to partner with local law enforcement to develop a policing strategy that addresses the specific needs of an individual community”

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(Bryan and Huffman 2019). Such plans “use a bottom up approach that marries police data with input from those who live and work in the community” (Bryan and Huffman 2019). The report of the President’s Task Force on 21st Century Policing likewise states that “community policing is not just about the behavior and tactics of police; it is also about the civic engagement and capacity of communities to improve their own neighborhoods, their quality of life, and their sense of safety and well-being” (p. 11). From this perspective, police reform involves enhancing community wellbeing and helping all community members to feel safe. Community oversight requires enhanced transparency and accountability, including independent prosecutorial investigations of police misconduct, such as by creating “police crimes units” in local district attorneys’ offices and hiring private firms to scrutinize the actions and policies of their police departments in police shootings and excessive force cases. Community oversight can be fully autonomous only if the community has direct access to official records involving police misconduct. Until recently, law enforcement personnel records in California (including videos and reports of personnel investigations) could only be obtained by a party in civil or criminal litigation by filing a “Pitchess motion” (Pitchess v. State Personnel Board 11 Cal. 3d 531 (1974)). However, California Senate Bill 1421 (effective in 2019) is a records release law that makes several categories of police personnel records open to public access, including shootings at people or use of force resulting in serious bodily injury or death. The enactment of this law reflects movement toward greater transparency and away from strict confidentiality of police records. California also recently introduced Senate Bill 776, which, if passed, would expand the disclosure requirements of Senate Bill 1421 by making every use-of-force incident subject to disclosure and making records related to wrongful arrests and searches no longer confidential. The reduction of confidentiality in access to police records would increase local government costs associated with compliance with Senate Bill 1421. However, questions remain about whether the expanded public access law will apply retroactively, and several California police unions have filed lawsuits to oppose this retroactive element (Arango 2019). Additionally, government agencies only are required to disclose public records that can be located with “reasonable effort,” so it is anticipated that claims of undue burden could be raised, resulting in further litigation (Lehman-Ewing 2019a; Tiedemann and Lustig 2019). Another structural policy reform to reduce police immunity for violence is to incentivize employers to regulate this behavior. Minan (2020) argues that the Civil Rights Act (42 U.S.C., § 1983) should be amended to make public employers of police officers liable for monetary damages to the same extent that private employers would be liable for the torts of their employees; this would incentivize police departments to be more careful in

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selecting and training their officers (although third-party insurance could offset the potential additional monetary exposure). It is unlikely that municipalities would take on this responsibility on their own, which suggests that this will require state or federal action. Besides passing laws to reduce policing bias and violence and enhance transparency, federal government officials may become involved in enforcement actions (consent decrees) aimed at reforming organizational culture, use-offorce policies, and training in particular police departments. For example, the acquittals of police officers in the Simi Valley, California, trial for the use of excessive force in the beating of Rodney King gave rise to the 1992 Los Angeles civil unrest (the “L.A. riots”). Following a DOJ investigation, public approval of the police in Los Angeles improved after the city implemented reforms pursuant to a consent decree that fundamentally altered how Los Angeles police go about their work. Jelani Cobb (2017b) explained that “the Justice Department may choose to initiate an investigation . . . [and] if the department finds evidence of systematic abuse, it will negotiate an agreement with representatives of the city leadership, the affected communities, and the police.” These negotiated agreements must be approved by a federal judge, and a federal monitor typically is appointed to oversee implementation of the agreed-upon reforms. In Los Angeles, the consent decree involved the police setting up a civilian police commission that formulates rules and policies for the police department, after holding hearings for public comment before adopting the rules and policies they had formulated. Since the videotaped beating of Rodney King in 1991, consent decrees have increasingly become a “primary tool for reforming chronically troubled police departments” (Cobb 2017a), and since 1994 seventy police and sheriff’s departments across the country have come under DOJ investigation, with forty-one reaching reform agreements, including consent decrees (Cobb 2017b). As of April 2017, fifteen US cities were under federal oversight (Cobb 2017b). For example, after the DOJ Civil Rights Division issued a report of its investigation into the 2014 police shooting of Michael Brown in Ferguson, Missouri, the City of Ferguson and the DOJ filed a consent decree agreement to overhaul the Ferguson city police. The agreement included training police staff in bias-awareness, requiring police officers to use body and in-car cameras, and establishing a civilian review board to review investigations into allegations of excessive force, complaints of police abuse of authority, and use of racially discriminatory slurs (Cullinane 2016). And the DOJ issued a similarly scathing report on the death of Freddie Gray in Baltimore, Maryland, while in a police van, which led to several days of public protest and civil unrest in the city. In January 2017, the City of Baltimore

Federal Involvement in Policing Reform

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and DOJ entered into a consent decree agreement that obligates the city to implement far-reaching reforms oriented to restoring community trust. The decree ordered enhanced police officer supervision and training, including techniques to defuse and de-escalate encounters with youth, the mentally ill, and protesters, and created a civilian task force to provide citizen oversight of the department (Rector, George, and Broadwater 2017). The former Obama administration DOJ (under the supervision of then attorney general Eric Holder) advanced many important criminal justice reforms in policing (and in sentencing and punishment) using consent decrees as a key mechanism for obtaining compliance from police departments and officers. But these Obama-era justice reforms did not continue during the Trump administration, as the Trump DOJ cut back substantially on its use of consent decrees. 5 However, President Biden’s US attorney general Merrick Garland has virtually ended restrictions on the use of consent decrees and, in the aftermath of George Floyd’s murder by police, is starting an investigation into the systematic policies and practices of the Minneapolis Police Department. President Biden recently entered the debate about whether the government should increase resources to police departments or provide more funding for community-based mental health services, drug treatment, and social services. In July 2021, he announced his approach that attempts to balance calls for police reform with measures to support police departments and address the recent rise in gun violence and violent crime. Rather than defunding the police, the president’s approach invests in policing efforts, emphasizes crime prevention, and provides support to community-based antiviolence programs and organizations that help keep communities safe. The United States has experienced recurring police violence and killings, especially of young Black males and other people of color, with little or no police accountability, either for individual officers involved, or for the police supervisors, administrators, or institutions responsible for training, supervising, and disciplining officers. Police officers are essential for public safety, but over-policing is as dangerous as under-policing, especially for communities of color. Required institutional reforms include that (1) police are not asked to handle problem behaviors that are not police matters; (2) standards of police behavior are clearly defined; (3) appropriate training, monitoring, and supervision are provided; (4) police officers understand they will be routinely charged and prosecuted for criminal conduct and, if found guilty, will be criminally sanctioned; (5) independent community and legal oversight is present; and (6) public employers realize that there will be substantial financial liability for police on-duty injustice. When police behavior changes, trust

Conclusion and Implications

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in policing will have a chance to develop in communities that long have been estranged from and distrustful of the police. Fortunately, fatal police shootings of unarmed people have recently declined (Sullivan, Tate, and Jenkins 2018), but unfortunately many cities still prefer to pay large civil money damage settlements to victims and their families (at the taxpayers’ expense) rather than prosecuting and sanctioning misconduct by police officers and their supervisors. Even when legal cases for excessive force by on-duty police officers are pursued by prosecutors, conviction rates for murder or manslaughter are low (Ferner and Wing 2016). Most cases are deemed to be justifiable homicides based on what the involved officer contends she or he believed to be a threat to the officer’s and/or other people’s safety or the public safety. The police officers and departments involved rarely are held accountable, so the interests in social justice of victims and communities are not addressed. However, there have been a few exceptions to this pattern. In December 2017, officer Michael Slager received a twenty-year sentence from the judge who concluded that the on-duty killing of unarmed Black motorist Walter Scott was a murder after Slager pled guilty following a mistrial declared when the jury deadlocked (Blinder 2017). In August 2018, officer Roy Oliver was fired for killing Jordan Edwards—a fifteen-year-old, unarmed Black teenager in the Dallas area—found guilty of murder, and sentenced to fifteen years in prison (Lee 2018). More recently, in January 2019 Chicago police officer Jason Van Dyke was sentenced to almost seven years in prison following his conviction for second-degree murder in the killing of Laquan McDonald, a seventeen-year-old Black teenager (Smith and Bosman 2019). And in 2021, officer Derek Chauvin was convicted of second-degree murder, third-degree murder, and second-degree manslaughter in the killing of George Floyd and was sentenced to twenty-two and one-half years in prison. The escalating public protest and demand for policing reforms associated with the Black Lives Matter movement have challenged the status quo. More than any other manifestation of race-based social inequity, police killings of Black citizens (especially young Black males) have brought together diverse elements of society and galvanized them to acknowledge and reform systemic racism. Virtually the entire US sports industry, most demonstrably the National Basketball Association, has united to campaign against police shootings of Blacks. For example, following the August 2020 police shooting of Jacob Blake, a young Black man accompanying his children in Kenosha, Wisconsin, the Baltimore Ravens National Football League team issued a statement calling for reforms that closely replicate those discussed in this chapter (and in Chapters 6 and 8), as well as increased voter registration (Baltimore Ravens 2020). Perhaps this mass social movement will trigger reforms equaling, or even surpassing, those of the civil rights era. Indeed, given the increased understanding of systemic racism since the initial passage of civil rights legislation, the United States may take the next

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step in criminal justice institutional reform—beyond slavery, beyond Jim Crow apartheid, and beyond the euphemistically named war on crime—to become an America “with liberty and justice for all.”6

Stacy Burns thanks the participants in the summer 2020 Zoom reading group on ethnomethodology and the police, including Michael Lynch, Albert J. Meehan, Patrick Watson, Carmen Nave, and Ann Marie Dennis, for many helpful discussions and the exchange of relevant readings and ideas. 1. The police officer who pressed his knee into George Floyd’s neck was charged with second-degree murder (and other charges), and the other three officers present at the scene were charged with aiding and abetting second-degree murder. A federal civil rights lawsuit was also filed on behalf of the family of George Floyd and a civil settlement was reached, with the City of Minneapolis agreeing to pay Floyd’s family $27 million. A study by Wertz et al. (2020) found that Blacks were more likely than Whites to be killed in low-threat, unlikely armed situations, exactly as predicted by a racial bias hypothesis. 2. Numerous studies have examined the psychology of police shootings, that is, whether implicit racial bias affects the speed or likelihood of shootings. These studies have used simulated scenarios to examine racial differences in speed or likelihood of shooting, and ethical research standards require that these studies eliminate any real threat of harm to the shooters (or others). Results are mixed and bias is manifest in speed but not likelihood of police shooting (James, Vila, and Daratha 2012); Correll et al. 2007). However, if officers’ experiences confirm their perceptions of criminality and racial stereotypes, this bias creates reality and affects their likelihood of shooting (Sim, Correll, and Sadler 2013). 3. In addition to defining when deadly force is “necessary,” the law directs the police, where feasible, to use de-escalation techniques before shooting. The bill is informally referred to as the Stephon Clark Law, after an unarmed twenty-two-yearold Black male who was fatally shot by Sacramento police in 2018. Officers said they thought Clark had a gun, but he was found to be holding a cell phone. Public protests erupted after the Sacramento district attorney declined to prosecute the involved officers. 4. In March 2020, Taylor’s boyfriend shot a gun at police officers, believing they were intruders when he fired, and police fired more than twenty shots, killing Taylor. The city of Louisville settled with Taylor’s family for $12 million, also agreeing to reform policing practices. The Kentucky grand jury indicted only one officer, charging him with reckless/wanton endangerment (because his bullets entered a nearby apartment), but none of the officers were charged with killing Taylor. Shortly after the grand jury decision was announced, protests erupted in Louisville and across the United States, and two Louisville officers were shot and wounded (both were expected to recover). 5. During his presidency, former president Trump derided the city of Chicago for its law enforcement issues and “threatened to ‘send in the feds’ to fix Chicago’s crime problem” (Cobb 2017a). In 2020, Trump did just that in the city of Portland, Oregon, in response to public demonstrations following the police killing of George Floyd. Over a hundred militarized federal agents, dressed in camouflage with no identification or badges (and thus unable to be held accountable), pulled people off the streets with no explanation and detained them in unmarked vehicles, deploying tear gas and projectiles against peaceful demonstrators in an aggressive attempt to

Notes

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suppress the protests. The governor of Oregon, mayor of Portland, and local police chief objected to the presence of these federal officers operating as an independent force rather than in cooperation with local authorities, and the attorney general of Oregon filed a federal lawsuit seeking a restraining order against what she alleged to be their unconstitutional practices. 6. In this chapter we have argued a rather critical position that police racial bias and violence are common and severe and require comprehensive systemic remedies, not just tweaks to existing institutional structures. We have not proposed a radical perspective that police are motivated by overt racism or conspire among themselves to perpetrate hate crimes and domestic terrorism or collaborate with and shield racist individuals and organizations who engage in hate crimes and domestic terrorism. But the radical perspective has received support, including FBI reports suggesting that in many departments, officers with White supremacist affiliations are using collective police power to further their racist agendas (German 2020). Although few would claim that most or all police are engaged in violent racist conspiracies, it is well established that there is a “blue shield of silence” (police not reporting crime by colleagues of which they are aware) that serves as a passive form of collaboration (Kindy, Bellware, and Berman 2021). Kindy and colleagues report that the January 2021 insurrection and invasion of the US Congress by supporters of former president Trump, including numerous police officers, has led fellow police officers and supervisors (as well as the FBI) to break the code of silence and report, charge, and discipline the off-duty officers who participated in attacks against on-duty law enforcement officials protecting Congress. Perhaps this wedge issue will create an opportunity for the police to take the initiative in reforming law enforcement to achieve racial justice.

Table 5.1 Stage

Overview of Social Control Development for Policing Bias and Violence Year

Policy formation 1989 Policy 2013 implementation Policy 2016 implementation Policy 2016 implementation

Legislation/Action

Graham v. Connor

Function of Action

US Supreme Court sets forth a “reasonable officer” standard for police use of deadly force. Camden, New Jersey, Department is reorganized is first city to disband under county control, with a police department focus on crime prevention and community policing; about half of officers are rehired City of Ferguson, Agreement to overhaul the Missouri, and the Ferguson city police US Department of department Justice (DOJ) file a consent decree Utah v. Strieff US Supreme Court holds that police can use illegally obtained evidence in a subsequent criminal prosecution

continues

107 Table 5.1 Stage

Continued

Year

Policy 2017 implementation

Policy implementation

Policy formation– contraction

Policy implementation Policy implementation Policy implementation Policy formation– expansion

Policy formation– expansion

Legislation/Action

Function of Action

City of Baltimore and Agreement obligates the city to US DOJ file consent implement reforms, including decree enhanced police officer supervision and training to defuse and de-escalate encounters, and to create civilian task force to provide oversight of the department 2018 Kisela v. Hughes US Supreme Court grants police officer qualified immunity from civil liability because he did not violate “clearly established” law and acted as a “reasonable officer” 2018 DOJ memorandum Adds new limitations on the by US Attorney scope and duration of consent General decrees (including that top Jeff Sessions political appointees must sign off on such agreements) and advises DOJ lawyers to be reluctant to pursue such decrees 2018 Dallas police officer Defendant receives fifteen-year Roy Oliver convicted prison sentence for killing of murdering Jordan fifteen-year-old, unarmed Edwards Black teenager 2019 Chicago police officer Defendant receives almost Jason Van Dyke con- seven-year sentence for victed of murdering killing of seventeen-year-old Laquan McDonald Black teenager 2019 California enacts Makes police personnel records Senate Bill 1421 on use of force resulting in (effective in 2019) serious bodily injury or death open to public access 2019 California enacts Requires the use-of-force Senate Bill 230 policy of each law enforcement agency to mandate that an officer who observes another officer using unnecessary force must (1) intercede to stop the excessive force and (2) report the excessive force to a superior officer January California enacts Changes the standard for the 2020 Assembly Bill lawful police use of deadly 392 (effective force from “reasonable” to January 1, 2020) using only “necessary” force de-escalating when feasible

continues

108 Table 5.1 Stage

Continued

Year

Reform agitation May 2020

Policy formation– expansion

Policy implementation

Policy implementation

Policy formation– expansion

Legislation/Action

Function of Action

Minneapolis police Killing prompts protest officer is charged demonstrations across United with murder and States and globally, leading to three other officers calls to defund the police. are charged with Minneapolis City Council aiding and abetting announces plan to disband murder in the killing the police department of George Floyd June US House of Law would revise the standard 2020 Representatives for use of force by federal law passes the George enforcement officers from Floyd Justice in whether the force used was Policing Act “reasonable” to whether it was “necessary” August Seattle City Council Goal is to fundamentally 2020 votes to reduce change policing practice and police budget by operations and to shift some approximately $3 duties away from police. million and Several high-profile police downsize by chiefs have retired, resigned, approximately or been forced out 100 officers June Minneapolis police Defendant sentenced to twenty2021 officer Derek two and one-half years in Chauvin is prison convicted of murder in the killing of George Floyd September N/A Bipartisan negotiations in the 2021 US Senate on the George Floyd Justice in Policing Act collapse, and consideration of the bill ends

6 Racial Bias and White Privilege in Sentencing

disparities in the US criminal justice system. There is a long history of racial disparities in rates of imprisonment (Davis 2017), and Blacks (and other persons of color) continue to be incarcerated at a disproportionately higher rate than their percentage in the general US population. For example, in 2015 Blacks composed “13% of the U.S. population, but 39% of all state and federal prison inmates. . . . Hispanics were 17% of the U.S. population but 24% of prison inmates” (Spohn 2017, p. 171). This markedly contrasts with non-Hispanic Whites, who were 63% of the general population but just 37% of prison inmates (Spohn 2017). Compared to White nonHispanics, Blacks have three times and Hispanics have more than 140 percent the level of incarceration. Indeed, prison is a prevalent and familiar life-course event for racial minorities, and particularly young Black males, who are more likely to receive disproportionately harsh sentences. Similar racial disparities have been noted in the percentage of people receiving death sentences, on death row, or executed from 1977 to 2016 (Spohn 2017). Racial bias includes the converse of bias against racial minorities— “White privilege”—in which Whites are beneficiaries of bias in their favor relative to equitable criminal justice processing (see the discussion of implicit bias and White privilege in Chapter 5). Perhaps the most egregious example of White privilege is the highly lenient sentences that are sometimes meted out to privileged White defendants who have been convicted of crimes. Several cases have brought this issue to the fore and prompted widespread public attention, outcry, and debate about certain sentences that the community viewed as excessively lenient. This concern about unduly

There is strong evidence of racial (and ethnic, hereafter “racial”)

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and overly lenient sentences led to calls for the removal or resignation of the sentencing judge involved and initiated changes in the guidelines regarding sentencing that are intended to reduce racial disparities. While differential rates of imprisonment and execution are the ultimate outcomes of racial disparities in criminal justice, racial bias extends beyond sentencing and punishment and permeates all aspects of the criminal justice system. It extends from police stops and searches to fatal shootings of people by police officers and vigilantes; from decisions to grant or deny bail to prosecutorial charging decisions and the nature and quality of available legal representation; from plea bargaining decisions to convictions or acquittals by judges and juries; and from sentencing decisions regarding incarceration to the death penalty. Racial inequities in imprisonment and execution are a result of cumulative bias across each component of the criminal justice system and cannot be effectively remedied without addressing the multiple impacts of racial bias. In this chapter, we look at racial bias in the sequence of decisions from the earliest stages of criminal justice processing up through the ultimate decisions about punishment. The plan of this chapter is to describe the current status of institutional structures (laws, practices, policies, and politics) that produce racial bias in criminal justice outcomes. (See Table 6.1 at the end of the chapter.) We then examine institutional reforms that have contributed to increasing or decreasing racial disparities in sentencing. Despite increasing awareness of racial disparities in the criminal justice system, there have been conflicting institutional developments as progressive reforms have been accompanied by developments driven by increasing xenophobia that threaten to bring a return of failed and unjust criminal justice policies and practices. The first step in criminal justice processing is when a person comes to the attention of law enforcement officers. There is racial profiling in investigatory stops by police, including stop-and-frisks. The latter are based on the legal standard of “reasonable suspicion” to stop and question potential suspects (Terry v. Ohio, 392 U.S. 1 (1968)), rather than the higher “probable cause” standard, and such stops produce racially disparate arrest rates (Joy 2015).1 The highly controversial stop-and-frisk policy in New York City was found by a federal judge in 2013 to have been used in an unconstitutional manner in the case of Floyd v. New York City, 959 F. Supp.2d 540 (Goldstein 2013; Mauer 2017). The Floyd court held that the stop-and-frisk policy was employed in racially discriminatory ways by the New York Police Department (NYPD) and that the police had violated the constitutional rights of minorities. The court ordered the NYPD to adopt a written stop-and-frisk policy, and a reform process involving community groups, the NYPD, and other stakeholders is currently underway.

Background

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Racial disparities in arrest rates are present in most crime categories and cannot be explained by the inaccurate belief that Black citizens commit more crimes. For example, racial disparities in marijuana arrests are welldocumented for cities like Los Angeles and New York: minority use rates are similar to those of Whites, yet arrest rates are much higher for persons of color (Gutwillig 2009). Arrest rate disparities are attributable to the racially discriminatory policing practices noted above, and to the fact that Blacks are much more likely to reside in areas of concentrated poverty that are more heavily policed (Sentencing Project 2018). Racially disparate law enforcement practices and their unfair results are closely tied to the policies pursued during the war on drugs (Beckett et al. 2005). Prosecutors are not required to give reasons for their charging decisions, even for the decision to seek the death penalty. Prosecutors are more likely to charge Black defendants with more serious crimes that carry heavier sentences, and these defendants are more likely to be convicted and to receive long prison sentences (Sentencing Project 2018). The Sentencing Project reported that federal prosecutors are “twice as likely to charge African Americans with offenses that carry a mandatory minimum sentence than similarly situated whites” and that state prosecutors are more likely to charge Black defendants under habitual offender laws. Research finds that mandatory minimum sentences and “three-strikes” (habitual/recidivist offender) laws are more often applied to persons of color, producing racial and ethnic sentencing disparities in the offenders who receive these sentences (Shelden 2001). There are significant racial disparities in the sentencing of youthful offenders (Davis 2017). Black youth are more likely to be misperceived as older than they in fact are and as more dangerous than their White peers, who benefit from perceptions of innocence (Henning 2017). Poor youth of color are more likely to be arrested, tried as adults, and sentenced harshly. Black and Brown youth are also more likely to serve time in an adult prison than their White counterparts (Stevenson 2013). The Sentencing Project (2019) notes that 80 percent of youth serving life sentences are youth of color. Black and Brown youth are overrepresented in the population receiving juvenile lifewithout-parole sentences, compared to White youth who committed the same crime (Blades 2017), and almost two-thirds of the youngest children serving life-without-parole sentences are Black or Brown youth (Stevenson 2013). In 2012 the US Supreme Court case of Miller v. Alabama, 567 U.S. 420 was based on two consolidated cases, each of which involved a fourteenyear-old boy, one White and one Black, both of whom had received life terms without parole. This case considered whether a juvenile offender could receive a mandatory life in prison sentence without taking into account the youth’s diminished culpability and capacity for change. In Miller, the US Supreme Court banned mandatory life-without-parole sentences for youthful offenders, ruling that they violated the Eighth Amendment (Nellis 2012). Life-without-parole sentences were allowed only for

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“irreparably corrupt” juveniles, although nowhere did the court define this vague standard (Miller v. Alabama, 567 U.S. 460, at pp. 479–480). As underscored by Mary Marshall, “by limiting life without parole to juveniles who are ‘irreparably corrupt,’ the court is asking sentencers to predict whether a juvenile will be a danger, decades down the road” (Marshall 2019, p. 1633). By the end of 2016, over 2,300 people were serving life-without-parole sentences for crimes committed as juveniles (Rovner 2020). Given the racialized misperceptions of the dangerousness of youth of color compared to the perceived innocence of White youth, it is likely that Black and Brown juveniles are more subject to being deemed “irreparably corrupt” or permanently “incorrigible” (Graham v. Florida, 560 U.S. 48, at pp. 77–79 (2010)). In the 2016 case of Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the US Supreme Court further rejected the harsh and racially disparate sentencing of children, ruling that the Miller holding applied retroactively to defendants sentenced as juveniles to life without the possibility of parole prior to 2012. By 2019 a total of twenty-one states and the District of Columbia had banned life without the possibility of parole sentences for juveniles. Sentencing laws may themselves be biased, leading to more severe sentencing outcomes, such as the mandatory minimum sentences for “crack” cocaine (used mostly by people of color) versus for “powder” cocaine (used more frequently by Whites than “crack”) (Shelden 2008). The Anti–Drug Abuse Acts of 1986 (Pub. L. No. 99-570 100 Stat. 3207) and 1988 (Pub. L. No. 100-690, 102 Stat. 4181) “implemented a 100-to-1 quantity crack to powder cocaine ratio for federal sentencing provisions and criminalized simple possession of as little as 5 grams of crack cocaine,” imposing a mandatory five-year prison sentence for that offense, compared to probation for possession of the same amount of powder cocaine (Shelden 2008, p. 49, citing the US Sentencing Commission 1995). Although crack and powder cocaine are different forms of the same drug, this differential sentencing policy produced large racial disparities in the average length of sentences that Black defendants received because most people convicted for crack cocaine offenses are Black (Shelden 2008; Vagins and McCurdy 2006). Research in the cities of Miami and Philadelphia found that after criminal charges were filed, both Black and White judges showed bias against Black defendants in reaching bail decisions (Arnold, Dobbie, and Yang 2018). The authors conclude that such racial bias in bail decisions is often driven by judges’ reliance on unfounded stereotypes of the relative dangerousness of releasing Black defendants. In turn, inability to make bail increases the likelihood of conviction for the offense (Dobbie, Goldin, and Yang 2018). After arrest, despite the Sixth Amendment guarantee of the right to be represented by counsel, many Blacks (and other persons of color) cannot afford to pay for private counsel. Because of large racial wealth disparities in the United States, people of color are more likely to be poor and repre-

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sented by public defenders who are often overworked and under-resourced, which may translate into unequal and ineffective assistance of counsel (Peng 2015; Sentencing Project 2018). A study of indigent defendants in San Francisco found that persons of color were less likely to have their felony charges reduced in plea bargaining, were more likely to plead guilty, and were more likely to be convicted of serious crimes than similarly situated Whites who faced comparable charges (Owens, Kerrison, and Silveira 2017). Even alternative dispositions, such as drug courts, may contribute to racial disparities in criminal justice outcomes since “minorities are less likely to gain access to drug court . . . than Caucasian drug offenders” and “face comparatively [more] difficult hurdles in completing drug court programs and avoiding incarceration” (Gross 2010). In addition, if such defendants fail in the drug court program, their sentences tend to be longer than similar offenders who do not participate in drug court and receive conventional sentences (O’Hear 2009). Racial disparities have been noted in judicial decisionmaking and jury verdicts (Williams 2007). For example, all-White juries convict Black defendants 16 percent more often than White defendants (Anderson and Orwig 2018). Of course, legal factors influence the sentences imposed on people convicted of a crime (e.g., the severity of the offense, the offender’s prior criminal record, and whether violence or a gun was used in the commission of the current crime). But sentence severity also is affected by personal and discretionary factors (e.g., the race and ethnicity, social class, education, gender, and/or age of the convicted person). For example, the victim’s race and gender have been found to heavily affect sentencing decisions and outcomes (Williams 2007). A person of color who kills a White person is more likely to receive the death penalty than someone who kills a person of color (Spohn 2000), and males of color who murder a White female are disproportionately more likely to receive the death sentence and be executed (Holcomb, Williams, and Demuth 2004; Spohn 2017; Williams 2007). Parole release and parole revocation decisions that are made after time is served in prison also are influenced by the applicant’s race. Decisions to grant (or deny) parole are based in large part on the applicant’s prison disciplinary record, and correctional officials give inmates of color more disciplinary infractions, especially for more discretionary types of infractions, such as disobeying a direct order (Sentencing Project 2018; Schwirtz, Wineup, and Gebeloff 2016). Racial bias is not only cumulative across the components of the criminal justice system, it also is cumulative over the life course of individuals. For example, a disproportionate number of youth of color are incarcerated in the United States (Templin 2013). As civil rights lawyer Bryan Stevenson emphasizes, an increasing number of poor Black and Brown youth are transferred from juvenile court to adult court, tried as adults, and if convicted,

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sentenced to adult prisons (Stevenson 2013). Young people sent to adult correctional facilities are ten times more likely to be sexually abused by an adult in the facility and are more likely to commit suicide (Stevenson 2013). Linda Templin also studied the mental health needs, treatment, and outcomes for youth in juvenile justice detention in Chicago. She found that Black males ages fifteen to sixteen years old were the least likely to receive mental health treatment while in detention or within six months of release and that non-Hispanic White girls were the most likely to get treatment (Templin 2013). Having a prison record makes a person eligible for more harsh sentences for repeat offenses, and abuse and mental health problems make persons more likely to offend and reoffend, thus multiplying the effects of racial bias in the handling of young offenders. The reverse side of racial bias and inequities in sentencing is White privilege in sentencing. The 2016 case of Williams v. Pennsylvania, for example, held that “both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and . . . to the rule of law itself.” Two prominent cases have brought the issue of White privilege in sentencing to the fore, and the public outcry over these cases of excessively lenient sentences suggests the abuse of discretion by sentencing judges. In the June 2016 case People of State of California v. Brock Allen Turner, Santa Clara County Superior Court, Case No. B1577162, Stanford University student-athlete Brock Turner was convicted of sexually assaulting an unconscious woman behind a dumpster outside a fraternity house and received a six-month prison sentence. The California appeals court rejected an appeal of his conviction, and Turner ended up serving three months before being released on probation (Hauser 2018). The sentence for felony sexual assault occurred within the broader context of the Me Too movement and the timing and publicity surrounding what was happening nationally with sexual assault and college sexual assault in particular (see Chapter 4). The public outcry over the perception of this decision as unduly lenient (discussed below) gave rise to a number of institutional reforms to reduce racial disparities. Another example of White privilege in sentencing emerged in the June 2013 case of sixteen-year-old Ethan Couch. The so-called “affluenza” teen from an affluent family in Texas killed four people when he lost control of his speeding pickup truck while driving with a blood alcohol level that was three times the legal limit (after having stolen beer from a Walmart store). Couch was tried in juvenile court by District Judge Jean Boyd, rather than being tried in adult criminal court, as is common for youth of color accused of serious crimes. The “affluenza” defense asserted by Ethan Couch was that he was not responsible for his criminal conduct because his parents

White Privilege in Sentencing

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were overly permissive and never set boundaries on his behavior or disciplined him, so he learned no limits on his conduct. The psychological expert who testified at trial on Couch’s behalf stated that Ethan Couch could not fully understand the consequences of his criminal conduct and should not be held responsible. Of course, young men from impoverished backgrounds and/or raised by substance-abusing parents also may not fully appreciate the consequences of their criminal conduct, but they are commonly found guilty, incarcerated, and punished to the full extent of the law. The judge apparently bought into the “affluenza” defense and sentenced Ethan Couch to ten years of probation and placement in a long-term treatment facility (attendance at which reportedly cost his parents approximately $450,000 a year).2 Sorrentino (2014) underscored that “no inner city youth would receive such a pampered sentence as Ethan Couch.” This case is an example of the trend of social and behavioral scientists testifying as experts asserting an expanding array of so-called abuse excuses (Dershowitz 1994) to mitigate or excuse defendants’ criminal responsibility and thus reduce punishment. Compare, for example, the Menendez brothers’ defense, which used a child abuse/trauma expert to argue that the brothers had acted out of “reasonable fear” when they killed their wealthy parents and should not be held responsible because their parents had sexually and emotionally abused them (Burns 1996, 2008). Invoking a mental health or psychological paradigm counters the core assumptions of the traditional criminal justice paradigm of a freely willed and rational actor who, apart from a few limited circumstances, is considered fully responsible and accountable for his or her misconduct. This diffusion of a mental health/psychological paradigm into the criminal courts and criminal law has contributed to the introduction and success of a growing number of therapeutically based (social) scientific defenses to crime at trial (Wilson 1997). Relevant to the concerns of this chapter, expensive “expert” witnesses are more available to privileged White defendants, which further contributes to White privilege.

Institutional Developments That Exacerbated Racial Disparities in Criminal Justice

There has been an expansion of “stand-your-ground” laws in many states (see Chapter 3). These laws clear the way for civilians to use deadly force and have their homicides classified as “justifiable.” From 2000 to 2010, more than twenty states passed legislation that made it easier for private citizens to use fatal force and successfully claim self-defense (Cheng and Hoekstra 2013). Stand-your-ground laws remove the “duty to retreat” from a confrontation in locations outside of the person’s home and eliminate civil liability for violent actions protected under such laws. Some of these laws

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shift the burden of proving self-defense by adding a presumption that the shooter’s belief in imminent harm was “reasonable” (Cheng and Hoekstra 2013). Young Black males are disproportionately shot and killed by private citizens; since the early 1990s, nearly half of all the US homicide victims have been Black males compared to their being 6–7 percent of the US population (Siddall 2019). Using FBI data from 2005 to 2009, Roman (2013) found that there are large racial disparities in the homicides that are ruled to be “justified” by judges and juries; compared to Black-kills-White crime, White-kills-Black crime is almost ten times more likely to be found justified in non-stand-your-ground states and almost seventeen times more likely to be found justified in stand-your-ground states. Thus, the substantial preexisting racial inequity in punishing killings has been exacerbated by stand-your-ground legislation. Stand-your-ground legislation in Florida (Florida Statutes, § 776.013 (2005)) was implicated in the killing of an unarmed Black teenager, Trayvon Martin, who was shot and killed in 2012 by George Zimmerman, a neighborhood watchman who racially profiled Martin. Zimmerman called police and reported that Martin “looked ‘suspicious’ and . . . like he ‘was up to no good or on drugs or something’” (Davis 2017, p. xii). Zimmerman disregarded the police dispatcher’s warning not to follow Trayvon Martin and shot and killed him. At first, Zimmerman was not charged by the prosecutor with any crime, but after widespread public protests across the country, he was charged with murder. At his 2013 trial, Zimmerman asserted self-defense in the shooting (State of Florida v. George Zimmerman, Circuit Court, 18th Judicial Circuit, Seminole County, Florida, Case No. 2012 CF 1083 AXXX). Although he did not claim a stand-your-ground defense, the jury was instructed in Florida’s stand-your-ground law, and Zimmerman was acquitted after the jury was so instructed. This unpunished killing of defenseless Trayvon Martin was the incident that gave rise to the phrase “Black lives matter” and sparked a social movement in that name. Furthermore, Florida passed a law (Florida Statutes 2017, § 776.013) that strengthened the state’s stand-your-ground law by shifting the burden of proof from defendants to prosecutors to show that the use of force was not lawful in the context of unlawful entries into dwellings, residences, or vehicles. This law presumes a “reasonable belief” in the necessity of force and provides legal justification for the use of deadly force in such scenarios (Woodall 2017). A related bill also pertaining to the use of deadly force “in defense of person” was signed into law in 2017 (Florida Statutes 2017, § 776.012). This law provides potential immunity from prosecution for individuals when the person “is in a place where he or she has a right to be” and “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” Not surprisingly, these Florida laws were endorsed by the powerful NRA gun lobby as enhancing a citi-

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zen’s right to use firearms to kill someone if they felt justified in doing so, regardless of the objective characteristics of the situation. The Trayvon Martin case is one of many that suggests the United States is experiencing an increase in state-condoned hate-crime violence and its legitimation in the criminal justice system as part of White privilege. One criminal justice reform to reduce racial disparities in sentencing is the Fair Sentencing Act of 2010 (Public Law 111-220), which eliminated the five-year mandatory minimum sentence for simple possession of crack and reduced the racial disparity in federal sentencing for (mostly Black) use of crack cocaine from a ratio of 100:1 to a ratio of 18:1. Additionally, in 2018 the First Step Act (Public Law 115-391) made the Fair Sentencing Act provisions retroactive so that an offender currently incarcerated for possession of crack cocaine who had received a longer sentence prior to the enactment of the Fair Sentencing Act can petition the federal court for a sentence reduction. Black defendants have benefited most from these sentencing reforms and, as of December 2019, made up 91 percent of the people who received sentencing reductions under the First Step Act (Gotsch 2019). The most conspicuous actions that address White privilege and racial disparities in criminal justice have been driven by public protest concerning cases such as those discussed above (and the cases discussed in Chapter 5). The widespread public criticism of the Brock Turner sentencing judge (Aaron Persky) led to an effort to recall the judge from office.3 Critics who sought to recall Judge Persky contended that his sentences showed “consistent bias in favor of privileged defendants in sex crime cases” (Getz 2017). The recall effort raised $1.2 million in contributions and an anti-recall campaign called No Recall raised just over $890,000 (Cho 2018d). Winston Cho reports that lawyers were divided in their opinions about the recall and disagreed on what effect, if any, the recall effort would have on sentencing decisions by other judges. Some legal experts suggest that “it may encourage other judges to impose harsher sentences instead of rehabilitation alternatives” (Cho 2018e). In response to the recall effort, Judge Persky depicted himself as “a symbol of the threat to judicial independence” and claimed that the recall would jeopardize judicial independence in sentence decisions (Cho 2018e, 2018f, 2018c). Some of his supporters argued that he “followed the law, a law which allowed for a probationary sentence” (Bautista 2018). Similarly, one recall opponent, a local public defender, stated, “the punishment or removal of Judge Persky in response to his exercise of discretion could lead to policies that limit that discretion [and] will deter other judges from extending mercy and . . . encourage them to issue unfairly harsh sentences for fear of reprisal” (Cho 2018e). In the aftermath of the judge’s recall, some in the legal community have urged a tougher path for the recall of

Institutional Reforms to Reduce Racial Disparities

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judges (Cho 2018f). However, the arguments of judicial independence as a rationale for White privilege in sentencing did not prove persuasive to voters, and in June 2018 northern California voters voted in favor of recalling Judge Persky from office.4 In response to the sentencing of a rapist whose sentence was perceived as too lenient, it is interesting that critics of Judge Persky endeavored to remedy the injustice by legislatively mandating a minimum sentence of three years in prison to anyone who sexually assaults an unconscious or intoxicated person (California Assembly Bill 2888). As noted in our discussion of mass incarceration, mandatory minimum sentences were applied on a large scale as part of tough-on-crime sentencing strategies and war-on-drugs policies. Mandatory minimum proponents believe such laws will produce fairer and less-biased sentencing outcomes. Opponents of mandatory minimum sentences, such as those dictated in the new California sentencing bill, warn of unanticipated adverse consequences and argue that the bill will add human cost to people who will “undoubtedly be poor and . . . will most likely be Black and Brown” (Doctoroff 2016). According to Doctoroff (2016), such policies do not eliminate sentencing discretion, but instead shift its exercise from the judge to prosecutors, who decide what charges to file and thus what the potential sentencing range will be, and who can offer and enter into plea agreements. In other words, racial disparities exist throughout the criminal justice system, and a small fix in one aspect of the legal process is unlikely to have a meaningful effect on reducing racial inequities. Link and Phelan (1995) proposed a theory of “fundamental causes,” which states that such factors are so deeply embedded in the structure of society that their negative effects are virtually irremediable; as one mechanism of effect is addressed, another mechanism will substitute in producing the same outcome. One (almost) universal fundamental cause is social class, and at least in the United States, race seems to be another. Determinate sentencing was proposed as a remedy for racial inequities in sentencing under discretionary sentencing, but under determinate sentencing, racial minorities were more likely to receive harsh mandatory sentences, reproducing the racial disparities the policy was intended to remedy (see Chapter 8). Consider the use of affirmative action programs to remedy racial discrimination in college admission—although such programs mandate increased minority enrollment, the policies were used by White applicants seeking to obtain admission by charging reverse discrimination (Harris 2018b). Thus, policies that attempt to address racial inequities in criminal justice through such strategies are unlikely to be a complete solution. Although fundamental cause theory can be seen as pessimistic, implying that it is not possible to eliminate racial inequities in criminal justice, there are strategies that can mitigate the impact of bias on criminal justice sanctions. For example, the anti–drug abuse laws of 1986 and 1988 codified bias into the

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prohibition of cocaine use by having stronger penalties for the type of cocaine used by Blacks than for the type of cocaine used by Whites. Legislation was enacted decades later that reduced this disparity in sentences by over 80 percent (but did not eliminate it). Yet, even if this disparity had been eliminated, police arresting and prosecutor charging for cocaine use might be biased, which could lead to racial inequity in sentencing. An alternative strategy for reducing racial disparities in criminal justice sanctions is to remove behavior from the purview of the criminal justice system; an example is the legalization of adult use of marijuana (see Chapter 10). Of course, such actions can reduce racial disparities only if the laws changed are ones that produce racial disparity, but most laws generate racial and socioeconomic disparities in punishment. Enactment of the adultuse cannabis law in California was accompanied by enactment of the 2017 Repeal Ineffective Sentencing Enhancements Act (RISE Act; Senate Bill 180), which repealed the sentencing enhancements that added additional years to a sentence for prior drug convictions and contributed to putting thousands of Californians (especially persons of color) behind bars for minor drug law violations. Passing the RISE Act also meant that many people convicted of drug-related offenses were released from jail, had their cases dismissed, had their sentences reduced, and/or had their criminal records cleared (Cho 2018b, 2018d, 2018a). A variety of strategies other than decriminalization and legalization also have been used by states and localities to reduce racial bias in criminal justice processes and outcomes. For example, recognizing the negative effects of race and class bias in the bail system, several states (e.g., the 2017 New Jersey Criminal Justice Reform Act, New Jersey Statutes, Title 2A: 162-15 to 26) have restricted or eliminated cash bail (Jayachandran 2019), a system that uses a person’s ability to pay as the main basis for avoiding jail while awaiting trial. Poor people and minorities are more likely than White persons to be unable to make bail and their bail amounts are set higher (Dooley-Sammuli 2017). People who are not free on bail and are detained in jail pending trial are more likely to be convicted (DooleySammuli 2017). In addition, states such as New Jersey (New Jersey Senate Bill 2519, 2020) and Colorado (Colo. Rev. Statutes Title 17-22.5-404, 2018) have implemented reforms in policies for granting parole and/or limiting the grounds for technical revocations of parole or probation (which are the basis for most revocations) or returning a person to prison. It is obvious that statutorily inapplicable criteria, especially race/ethnicity (but also gender, age, and social class), should not influence criminal justice outcomes. More important, the criminal justice system needs to ensure not only

Conclusion and Implications

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that the process is even-handed and the punishments imposed are just, but also that offenders are rehabilitated and reintegrated back into communities and restorations are made to victims or survivors. In terms of the development of social problem control institutions, the progressive laws and implementation practices discussed in this chapter contribute to mitigation of racial disparities in punishment and the promotion of public safety and racial justice, while other recent policies and practices perpetuate the legacy of bias, unfairness, and racial inequality, as well as making people and communities less safe. Important issues to be considered are (1) whether criminal justice agents can be motivated to make major changes in arrest, charging, and sentencing decisions and (2) whether such changes would be enough to eliminate (or at least substantially reduce) the racial disparities in sentences received and served. Institutional reforms proposed or implemented to reverse the process of mass incarceration may provide guidance on how changes in the criminal justice system can further the goal of racial equity (see Chapter 8). The best approach to limit the damage to poor and minority populations may be to reduce the damage to the entire population along with trying to equalize the damage between different populations, rather than relying only on the latter. Contraction of social control through decriminalization and legalization, and de-escalation by decreasing maximum sentences and mandating alternatives to incarceration, might not eliminate racial disparities, but they are likely to substantially reduce the negative impact of the criminal justice system on poor and minority populations (as well as other populations). Social science research can identify the extent and nature of racial inequities and can guide efforts to formulate, implement, and assess reforms to correct racial inequities throughout the criminal justice system. However, fundamental cause theory forces us to consider whether such a commitment exists and/or whether it can be created and sustained. Several institutional developments at the federal, state, and local level criminal justice systems have reinforced racial bias. Yet, there also has been a major social movement around social justice (e.g., Black Lives Matter), and this has led to several institutional reforms in the criminal justice system. It now appears that priorities have changed, and state and local governments are being provided with resources and incentives to follow suit during the Biden administration. For example, President Biden has allocated $100 million in new funding for community violence intervention programs, including non–law enforcement outreach programs that employ community members to resolve disputes and change norms about the use of violence (Crowley 2021). The Biden administration also has requested almost $400 million for a program of police officer hiring out of the Office of Community-Oriented Policing Services (COPS) to hire about 2,500 new officers. One priority of COPS is to enhance diversity in law enforcement such that officers better reflect the communities being served. In addition, the Biden budget

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includes $20 million in new funding for police training on racial profiling, de-escalation, and the duty to intervene (Crowley 2021). President Biden proposes to address racial inequities in the federal criminal justice system by funding increased use of alternatives to incarceration, including law enforcement assisted diversion for opioid abuse, plus funding to increase substance abuse treatment in correctional settings, as well as improving indigent criminal defense resources and outcomes. It remains to be seen how future institutional developments in the criminal justice system will affect progress toward racial justice. 1. The Fourth Amendment gives people the right to be free of “unreasonable searches and seizures.” The “reasonable suspicion” standard for police searches was established in the 1968 US Supreme Court case of Terry v. Ohio, which made it easier for police to stop and pat down or frisk a suspect. Prior to the Terry case, the police needed “probable cause” to stop a potential suspect. “Probable cause” is the higher standard that must be met in order for police to get a search warrant. Police must believe that a crime was probably committed, whereas “reasonable suspicion” only requires that police reasonably suspect that a crime has been or is about to be committed, based on “specific, articulable facts” in the circumstances. Terry thus articulated a legal standard that lowered the justification and evidence required for a “stop-and-frisk” search compared to the prior standard. 2. After his conviction, Ethan Couch was later seen on a video posted on social media apparently violating the terms of his probation by playing “beer pong.” He then absconded to Mexico with his mother before turning himself in for the probation violation. After his probation was revoked in 2016, he served almost two years of imprisonment, or 180 days for each victim he killed. 3. As in the Brock Turner case, the lenient sentence of Couch prompted public outrage, and shortly after announcing her decision in the case, Judge Boyd resigned from office. 4. By contrast, it is unusual for a sentencing judge to face a recall campaign for imposing a sentence that is perceived to be too harsh (Cho 2018f; see a possible exception to this in the sentencing of juvenile sex offenders in Chapter 7).

Notes

Table 6.1 Stage

Overview of Social Control Development for Bias and Privilege in Sentencing and Beyond Year

Policy formation– 1986– escalation 1988

Legislation/Action Function of Action

Anti–Drug Abuse Establishes mandatory minimum Acts five-year federal sentence for crack cocaine (used more by Blacks) and requires 100 times more powder cocaine (used more by Whites) for this sentence

continues

122 Table 6.1 Stage

Continued

Year

Policy formation– 2005 escalation

Policy formation– 2010 de-escalation

Policy 2012 implementation– de-escalation Policy 2013 implementation– expansion Policy 2013 implementation– contraction

Policy 2016 implementation and reform agitation

Policy formation– 2017 contraction

Legislation/Action

Function of Action

Florida enacts stand- Removes the “duty to retreat” your-ground law from a confrontation, eliminates civil liability for violent actions, and mandates presumption that the shooter’s belief in imminent harm was “reasonable” Fair Sentencing Act Reduces the sentencing disparity between crack and powder cocaine crimes from a ratio of 100:1 to 18:1 and eliminates five-year mandatory minimum sentence for simple possession of crack cocaine Miller v. Alabama US Supreme Court prohibits mandatory life-without-parole sentences for juveniles State of Florida v. Jury acquits George Zimmerman George Zimmerman of killing Trayvon Martin after racially profiling Martin and disregarding police dispatcher warning not to follow Martin Floyd v. Rules that New York Police New York City Department stop-and-frisk policy had been racially discriminatory, and orders a written stop-and-frisk policy and a joint reform process involving community groups People of State of Stanford University student California v. Brock Brock Turner is convicted of Allen Turner sexually assaulting an unconscious woman behind a dumpster and receives a sixmonth prison sentence. In 2018 California voters recall the presiding judge Florida Stat., Strengthens the state’s stand§§ 776.012 and your-ground law, shifting the 776.013 burden of proof from defendants to prosecutors to show that the defendant’s use of deadly force was unlawful, providing potential immunity from prosecution when the person has a right to be there and reasonably believes that the use of deadly force is necessary

continues

123 Table 6.1 Stage

Continued

Year

Policy formation– 2017 de-escalation Policy formation– 2017 contraction Policy formation– 2018 de-escalation

Legislation/Action

Repeal Ineffective Sentencing Enhancements Act

Function of Action

California repeals sentencing enhancements for prior drug convictions that add years to a sentence for subsequent offenses New Jersey Criminal De-emphasizes cash bail in Justice Reform Act favor of an assessment of various risk factors for granting pretrial release Colo. Rev. Statutes Expands grants of parole and Title 17-22.5-404 limits the grounds for technical revocations of parole or probation or returning a person to prison

7 Demonization of Sex Offenders

criminal justice system, which has endured for centuries. The most recent developments in this social problem arena are encouraging, as institutional reform movements in the United States have taken off, growing into a global movement. While racial bias affects a large minority (or even a majority) of the US population, there are other inequalities that inflict major harm on smaller populations and further call into question the legitimacy of social control in the criminal justice system. One such example is the control of sex offenders, which is the topic of this chapter. Sex offenders comprise a small portion of the offenders in the criminal justice system, yet they absorb a disproportionately large share of policy attention and resources in terms of the extent, intensity, and duration of their supervision, monitoring, and control. The perception that sex offenders are high-risk and dangerous is a function of the likelihood that a harmful event will occur, the perceived severity of the harm or victimization, and the belief that the perpetrators are unable to control their conduct because their disorder is untreatable (Petrunik 2005; Petrunik and Ilea 2010). Indeed, the sexual victimization of a child is viewed as more personally invasive and psychologically traumatizing than most other crimes (Burgess and Harman 2018; Lieb, Quincey, and Berliner 1998). A person with a history of sex offending is a highly vilified kind of offender who represents an extreme example of public fear over a particular kind of offense and the harms it is perceived to produce. Sociologists use the term moral panic (Cohen 1972) to describe an intense and/or sudden public discomfort and concern regarding a particular group or activity

The prior chapters in this section have examined racial bias in the

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that are disproportionately high. For example, the much less common sex offenses committed on children by people outside of the family (“strangers”) incite more public concern than the more frequent instances of sexual abuse by a family member (Lieb, Quincey, and Berliner 1998). During moral panics, alleged perpetrators are demonized as “folk devils” and responded to with vigorous efforts to contain and sometimes eliminate them (de Young 2004). “Sex offender” is a distinct category of offender that is designated for such punishment by the criminal justice system, as well as the community at large. Although it is commonly expected that most people with criminal records will at some point in their lives be able to reintegrate into society, this assumption does not apply to sex offenders, who are subjected to a variety of social control measures designed to prevent their reintegration into society. Sex offenders are thought to require that the public be notified of their presence and are subjected to ostracism, isolation, and intensive monitoring, supervision, and restraint. The plan of this chapter is to describe changes in the formation and implementation of sex offender laws and policies at the state and federal levels. (See Table 7.1 at the end of the chapter.) We first discuss the expansion of behaviors subject to social control as “sex offenses” and the escalation of harshness of penalties for convicted sex offenders during the late twentieth and early twenty-first centuries, focusing on the curtailing of legal rights. In so doing, we consider a level of severity and duration of punishment that is draconian in nature, economically difficult to sustain, and of questionable constitutionality, legitimacy, and effectiveness. We examine the empirical evidence for and against the resulting social control system and the assumptions on which it was based. Finally, we examine stakeholder attempts to challenge and reform this system, addressing issues of how criminal justice policies and practices are being and can be altered in the near future to become more rational, equitable, and effective. During the late 1980s the community protection model (CPM) was the dominant approach to sex offender regulation (Petrunik 2005). CPM arose out of the child sex abuse panics of the 1980s (de Young 2004; Petrunik 2005) and was associated with the rise of various populist social movements advocating for community safety and the rights of women, children, and crime victims. CPM places more emphasis on public safety and victims’ rights than on the treatment of offenders, principles of due process, or proportionality of punishment. For sex offenders perceived as highly dangerous and/or recidivist, this results in lifelong control through a distinctive form of registration and community notification; indeterminate terms of civil commitment (i.e., postsentence institutional detention);

Expansion and Escalation of Measures to Control Sex Offenders

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longer parole terms; electronic monitoring (via the Global Positioning System [GPS]); court-supervised mandatory medication compliance regimens (backed up by threat of incarceration); as well as other deprivations of the rights, privileges, and liberties of citizenship. These criminal justice controls bring about significant life consequences for sex offenders, such as impairing their ability to find a place to live, to integrate into positive social relationships, to complete an education, or to obtain employment (Hanson et al. 2018). Social control measures associated with the “sex offender” designation upgrade punishment, shaming, and stigma to an unprecedented level. They include the following: (1) sex offender registration and notification laws (Harris and Lurigio 2010); (2) involuntary civil commitment of “sexually violent predators” after they have completed their criminal sentence, potentially for life and without treatment; and (3) court-ordered outpatient commitment and/or treatment rather than imprisonment or involuntary civil commitment. Other limitations on sex offenders’ civil rights regarding residency, voting, or employment also may have adverse effects on sex offenders, including recidivism. Prior to 1994, there were no federal laws mandating sex offender registration and community notification in the United States. In 1994, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (JWA) was passed by Congress as an amendment to the federal Violent Crime Control and Law Enforcement Act. This legislation required all sex offenders across the country to register. From 1996 to 2003 Congress passed several more bills to clarify and strengthen the JWA. Many of these laws were named in honor of the child victims of murder and/or sexual assault (Petrunik 2005). For example, Adam Walsh was a six-year-old child who was abducted and murdered in 1981. Adam’s father, John Walsh, became a victims’ advocate and the host of the America’s Most Wanted television program, which has helped to solve many unsolved cases through tips solicited and received from the program’s viewers. In 2006 the Adam Walsh Child Protection and Safety Act revamped the federal Sex Offender Registration and Notification Act (SORNA) standards, repealing the previous JWA standards and expanding the number of sex offenses that must be covered by regulation to include all sex offense convictions in US jurisdictions, plus certain foreign convictions. From 2006 to 2015 several more laws were added to the nation’s SORNA provisions, including the 2008 Keeping the Internet Devoid of Sexual Predators (KIDS) Act, the 2015 Military Sex Offender Reporting Act, and the 2016 International Megan’s Law to address international travel by registered sex offenders.

Sex Offender Registration and Notification

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Every state now has a sex offender registry (SOR), and even before the recent push to identify sex offenders, there were over 650,000 registered sex offenders nationwide (Belkin 2011). SOR systems require mandatory registration by convicted sex offenders (with the threat of felony prosecution and incarceration for noncompliance), along with notification to the community about the offender’s presence in their midst. There is wide variation across the states in the kind of notification that must be provided, how long offenders must register, and how registrants can petition for removal from the registry. Critics have voiced concerns about the singling out of sex offenders for enhanced punishment on the grounds that increased punishments are added for this category of offender, but not for other types of serious violent offenders, such as murderers. Community notification provisions make it easy for the public to learn about a registered sex offender in their community. SOR community notification provides the public with immediate access to detailed information on registrants, including criminal history, identifying photographs, and maps showing where the sex offender lives. Most states require ex-offenders to register when they move (with failure to do so being a crime). Because of the substantial adverse impacts of registration compliance (e.g., public shame and stigma, harassment, vigilante violence, and difficulty finding a job), it is not surprising that many offenders who are required to register do not register or keep their information up-to-date. Thus, registry data are not accurate because registration is basically an honor-based system. This makes it difficult for law enforcement to monitor offenders, especially high-risk offenders, and in turn renders communities less safe. Community notification provisions of SORs have resulted in housing difficulties for released sex offenders (Petrunik 2005). It often is difficult for persons listed on registries to find somewhere to live, and released sex offenders have had to reside in trailers on the grounds of correctional facilities or in state rooming houses or shelters for sex offenders (Morin 2003; Goldstein 2014). Cohen (1995) argues that registration and notification mandates for sex offenders violate their privacy rights by posting their personal information on a law enforcement website. Online publication of identifying information also may subject registered sex offenders to vigilantism, harassment, and even deadly violence. Indeed, sex offenders have been murdered by vigilantes who could view their photographs and find their residences from online SOR information (Clarke 2006; Brooks and O’Hagan 2005). Sex offenders are held responsible and culpable for their conduct under criminal law, despite the seemingly senseless nature of their crimes. The criminal justice system understands them to retain the substantial capacity

Involuntary Civil Commitment of Sexually Violent Predators

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for rational thought (e.g., as evidenced by the selection of a particular “victim type,” or their capacity to evade capture) and to comprehend the relevant legal (and moral) rules. Sexual killings in which the victim was a child or young person provided impetus for the passage of sexually violent predator (SVP) legislation and other special initiatives targeting sex offenders (Petrunik 2005). SVPs are defined as people who have sexual contact with another person in an exploitive and coercive manner, akin to how a predator in the wild pursues its prey. For example, those who commit crimes of sexual abuse or rape against children are widely regarded as “sexual predators” (Filler 2001). Such crimes are considered predatory because children and child victims are seen as innocent, vulnerable, and needing protection. “Sexually violent predator” is a legally consequential designation (e.g., making one eligible for involuntary civil commitment). SVPs are identified using risk assessments performed by mental health professionals who evaluate “dangerousness” (violence risk) and the likelihood of repeating the offense.1 Risk assessments predict which offenders are likely (or not likely) to behave violently in particular circumstances, provide some estimate of the risk for violence, and inform risk management and intervention strategies (Heilbrun 2009). After passage of federal sex offender registration and notification laws in 1994, specialized risk assessment tools and systems for classifying an offender’s risk level were developed and used to identify dangerous and persistent sex offenders (Hanson and Morton-Bourgon 2005). At the time of writing this book, over twenty states and the District of Columbia had enacted laws permitting involuntary civil commitment of sex offenders after they have completed serving their prison sentence if they are considered to be dangerous and likely to engage in future sex offenses (Miller 2010; Petrunik 2005; Petrunik and Ilea 2010). Some states have extended the detention of sex offenders in prison until such time as the shelter system notifies the prison of additional space available in the few shelters that are located far enough away from schools or parks (as defined by sex offense laws). In New York, for example, the various residency restrictions have been interpreted to require indefinite incarceration of sex offenders (Goldstein 2014). Although specific civil commitment statutes vary across the states, in general four criteria must be met for this special form of civil commitment: (1) a charge or conviction of a sex offense, (2) a mental abnormality or personality disorder, (3) predicted future dangerousness, and (4) lack of control over sexually violent behavior. By the late 1980s, the state of Washington was a forefront site for a shift in criminal justice policy designed to protect vulnerable victims and the community from sexually violent offenses, and in 1990 Washington enacted the first SVP civil commitment law in the country (Petrunik 2005). According to this act, anyone who has committed a sexually violent crime and who “suffers from a mental abnormality or

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personality disorder which makes the person likely to engage in predatory acts of sexual violence” is eligible for incarceration indefinitely. In 1996, California became the fifth state to enact its own SVP legislation (Welfare and Institutions Code, § 6600, et seq.). This legislation, modeled after that of Washington, created a new category of civil commitment after incarceration. The 1996 Sexually Violent Predators Act authorized postincarceration detainment (civil commitment) of sex offenders after completion of their prison sentence, provided the offender is found to be mentally ill and dangerous—that is, likely to engage in future sexually predatory behavior (California Welfare and Institutions Code, § 6600, et seq.).2 Under this law, “predatory” conduct was defined relative to the potential victim: either as a crime committed against a stranger, unknown victim, or “person of casual acquaintance with whom no substantial relationship exists,” or as an act directed toward “an individual with whom a relationship has been established for the primary purpose of victimization” (California Welfare and Institutions Code, § 6600, et seq.). Punishment for offenders, including dangerous or violent sex offenders, must abide by due process and constitutional limitations; it should be proportional to the act committed (i.e., not excessive or cruel and unusual punishment under the Eighth Amendment) and not violate the double jeopardy clause (of the Fifth Amendment that prohibits punishing a person twice for the same offense). Punishment also cannot violate the ex post facto clause of the US Constitution that bars enactment of new laws that retroactively extend punishment for past crime. Because SVP laws authorize civil commitment after completion of an offender’s prison sentence, they have been subject to constitutional challenges, but they have withstood such challenges up to the US Supreme Court. In one case, Leroy Hendricks challenged a Kansas SVP statute on the grounds that this type of commitment involved a violation of substantive due process, the double jeopardy clause, and the ex post facto clause. Hendricks was a pedophile with a long history of committing acts of child sexual abuse who was involuntarily committed to a mental hospital for an indefinite period under the Kansas Sexual Predator Act (after serving a ten-year prison sentence) because he was judged to pose a substantial risk of re-offending. Writing for the majority of the US Supreme Court, Justice Clarence Thomas stated that Hendricks’s continued confinement without treatment did not constitute “punishment” because (1) the commitment derived from a civil (rather than criminal) proceeding and (2) in theory he could be released when his “mental abnormality” no longer made him unable to control his behavior and likely to commit future predatory acts of sexual violence (Kansas v. Hendricks, 521 U.S. 101 [1997]). Thus, the court held that in cases involving sexual predators, the US Constitution did not prevent states from imposing indefinite civil detention on those for whom no treatment is available.

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Key to the court’s decision was the view that the Kansas SVP law was civil rather than criminal. Although the dividing line between the two legal systems is not entirely clear, the emphasis of the criminal law is on punishment, while the civil law is “designed to ‘regulate’ behavior to prevent some form of (future) harm” (Janus 2006, p. 19). However, since “both types of laws can diminish a person’s . . . ‘liberty’ . . . both types can appear to the individual affected as . . . punishment” (Janus 2006, p. 19). The Hendricks court decision concluded that the intention of the Kansas SVP act was not to punish Hendricks, but to protect the public from the serious risk he posed. Thus, it was the intent of the law, rather than its actual effect on the offender, that was decisive. The US Supreme Court has grappled with issues of the constitutionality of a state’s civil commitment law to restrain a “dangerous” sex offender in subsequent cases. In the 2002 case of Kansas v. Crane (534 U.S. 407 [2002]), the US Supreme Court revisited its ruling in Kansas v. Hendricks (1997). The Kansas lower court found that Crane’s involuntary civil commitment under the state’s SVP act was proper because the court determined that Crane was unable to control his sexual urges. The Supreme Court agreed and held that the state did not have to demonstrate that Crane’s behavior was totally out of control, but only that he lacked control over his sexually offending behavior. This case established the precedent that the US Constitution does not allow involuntary civil commitment without a determination that the person lacks control over his or her dangerous conduct. The Supreme Court rulings in these cases allowed other states to enact similar SVP laws (Miller 2010; Petrunik 2005). Involuntary outpatient commitment or treatment (often euphemistically termed assisted outpatient commitment [AOC] or treatment [AOT]) is another social control measure applied to sex offenders, and forty-five states currently have such laws in effect (e.g., North Carolina Gen. Stat., § 7A-451, et seq., An Act to Expand Use of Outpatient Involuntary Commitments for Mentally Ill [1983]). Outpatient commitment often involves conditional release from a hospital and allows the person to receive mandatory treatment in an outpatient setting. As in drug court (see Chapter 9), compliance with treatment under AOC is backed up by the threat of confinement— that is, involuntary hospitalization for violating court-ordered conditions (Phelan et al. 2010). AOC is a social control measure that operates as a form of preventive detention and is essentially court-ordered mandatory community care (including medication) for people with a history of medication noncompliance, as a condition of their being able to remain in the community (similar to conditions of probation or parole).

Involuntary Outpatient Commitment or Treatment

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Supporters of involuntary outpatient commitment or treatment argue that court orders assist sex offenders to remain safely in the community without committing further crimes, provided that the remedial program is of sufficient intensity and duration (e.g., Gilbert et al. 2010). Supporters also contend that AOC is not coercive because the person probably would have chosen the treatment for themselves if their choices were not driven by their disorder (Boldt 2014a; compare Peyrot 1985 on “coerced voluntarism”). AOC statutes are based on the assumption that without mandatory treatment mentally disordered sex offenders will deteriorate into dangerousness, and treatment is perceived to be necessary to prevent relapses that could result in harm to others or to themselves. AOC programs permit sex offenders to remain in the community under conditions akin to parole or probation supervision, but with more intense surveillance, supervision, and restriction. These programs include sex offender registration and/or notification, compliance with mandatory medication regimens (backed up by threat of incarceration), or chemical castration (hormone injections to lower sex drive by reducing the level of testosterone). For example, California was the first of several states to pass a law specifying the use of chemical castration for repeat child molesters as a condition of their parole (California Penal Code, § 645 [1996]). Electronic monitoring technology sometimes is combined with AOC to extend social control in monitoring and supervising sex offenders in the community (although this measure also is used with sex offenders on traditional probation or parole). For example, in 2005 the South Carolina General Assembly began requiring lifetime electronic monitoring for offenders convicted or adjudicated of certain offenses, including a lewd act with a minor (currently defined as third-degree criminal sexual conduct), as well as first-degree criminal sexual conduct with a minor (2005 Act 141 § 8, South Carolina Code § 23-3-540). Several states have initiated similar programs, and the required use of these devices has been ruled constitutional by the US Supreme Court. The use of electronic monitoring has been increasing; from 2005 to 2015 the number of offenders (not only sex offenders) using the devices in the United States went from 53,000 to 125,000 (Karsten and West 2017). Although use of the devices increases the cost of probation or parole supervision, it appears to be effective in reducing sex offender recidivism (Gies et al. 2012; Bales et al. 2010). However, there are numerous technical problems with these devices. One study found that the devices failed 45 percent of their tests. In addition, frequent signal loss generates a massive number of reports to supervising agents, leading them to disregard these alarms, thereby reducing effectiveness (Karsten and West 2017). There also have been reports of paroled sex offenders disabling or removing their electronic monitoring devices (Prison Legal News 2013, p. 18).3 Moreover, use of the

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devices makes it difficult to get and keep a job; 22 percent of users in one study reported that they had lost a job because of electronic monitoring (Bales et al. 2010). And inability to pay the cost of monitoring may lead to reincarceration, at a significant cost to taxpayers. Sex offender legislation and SVP statutes have been getting stricter and more punitive, even for juveniles. For example, a major development in sex offender legislation occurred in California in 2006 with the passage (by ballot initiative) of Proposition 83, the Sex Offenders, Sexually Violent Predators, Punishment, Residence Restrictions and Monitoring Initiative. This law was substantially stronger and centered more on protecting child victims than its predecessor law enacted in 1996. The law expanded criminal justice control over sex offenders by making possession of child pornography a felony and defining aggravated sexual assault of a child to include offenders who are at least seven years older than victims (the prior law required an age difference of ten years). The law also expanded the number of sex offenders eligible for civil commitment by courts to state mental hospitals under California’s SVP program and escalated penalties for sex offenders by expanding the list of crimes eligible for life sentences, imposing longer prison sentences and lengthening parole supervision for habitual sex offenders, prohibiting probation for some sex offenses, removing early release credits for repeat offenders convicted of certain felony sex crimes, and adding GPS monitoring of high-risk sex offenders for life. Residency restrictions were also implemented stating that registered sex offenders could not reside within 2,000 feet of a school or park. The California SVP law was particularly harsh in its impact on juvenile sex offenders. It broadened the scope of sex offenders who qualify for an SVP evaluation, and the number of juvenile offenders designated as SVP increased for several reasons. First, although the prior SVP law did not make reference to juvenile offenses as eligible for SVP designation, the amended 2006 law explicitly stated that juvenile convictions could qualify for SVP designation, provided the offender was at least sixteen years old at the time of the offense (California Welfare and Institutions Code, Section 6600.1g). Second, the revised law redefined all sexual crimes with a person under the age of fourteen as a “sexually violent” offense and no longer required that the qualifying acts involve “substantial sexual contact” (defined as “penetration, oral copulation, or masturbation”). Third, the law also made more juveniles eligible for SVP classification because it reduced the required number of acts to qualify for SVP status from two to one. Finally, the law increased the term of civil commitment from two years to indefinite in duration, thereby disproportionately affecting young offenders.

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The main justifications for the extraordinary measures used to control sex offenders are the assumption that they cannot be effectively treated to reduce their risk of offending and the belief that they have a “frightening and high risk of recidivism” of 80 percent, as described by Supreme Court Justice Anthony Kennedy in McKune v. Lile (U.S. 24, 33 [2002]). This precedent often has been cited in subsequent court cases and legislation regarding social control of sex offenders, but it reflects “a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans” (Feige 2017, emphasis added). The precedent is based on the citation of a single sentence in an article published by Psychology Today in 1986, which itself cites no empirical evidence (Ellman and Ellman 2015). But there is overwhelming empirical evidence that this assumption is false. In a meta-analysis combining the results of twenty-one studies involving almost 8,000 sex offenders, the risk of recidivism over an eight-year period ranged from 2.9 percent for low-risk offenders, through 8.5 percent for moderate-risk offenders, to 24.2 percent for high-risk offenders (Hanson et al. 2014). Even more compelling is the fact that recidivism risk declined dramatically with time spent sex-offense-free in the community postrelease (which is consistent with the findings in research on other types of offenders). The recidivism rate was halved for every five offense-free years; this pattern applied to both moderate-risk and high-risk offenders (low-risk offenders were at very low risk over the entire postrelease period) and was independent of other risk factors (e.g., age, victim type, etc.). High-risk offenders who were offense-free for ten years had a substantially lower risk of subsequent recidivism than moderate-risk offenders had at release; in fact, no high-risk offender who had sixteen years offense-free subsequently recidivized. In another study, there was no statistically significant difference in the postrelease rate of sex offending between those already convicted of a sex offense and felons with no sex offense history (Wormith, Hogg, and Guzzo 2012). And studies suggest that less than 1 percent of sex offenders who were reincarcerated had committed a new sex offense; more than twice as many were reincarcerated for technical violations of SOR rules (Zgoba and Simon 2005). This research refutes the three myths used to justify existing social control policy and practice: (1) sex offenders are more likely to commit new sex offenses than other felons, (2) level of risk cannot be predicted using standardized actuarial assessments and other assessment measures,4 and (3) risk does not decline as offense-free time increases. Research also has challenged the myths surrounding the demonization of sex offenders. For example, the “sex offender” designation substantially influences the future life chances and liberties of persons so labeled, including their opportunities for housing and employment. Most states have specific laws that restrict where convicted sex offenders can live, typically prohibiting

Evaluating the Myth of Sexual Demons

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them from residing within a certain number of feet of a park or school. As a result, sex offenders are routinely rejected for employment and by landlords and end up homeless (Stoltze 2017). Indeed, punitive strategies may result in a self-fulfilling prophecy—that is, residential and job discrimination, stigma, and loss of social support may increase the risk of offending rather than reduce it. In particular, there is no evidence that SORs actually deter juvenile sex offenders from committing future sex crimes, and some studies show that registered juveniles have a similar likelihood of sex offenses as their unregistered peers (Caldwell and Dickenson 2009). Indeed, release of information about juveniles from an SOR website likely will impair their ability to participate in positive social networks, complete their education, and keep in contact with family and friends, all of which may have the unanticipated negative consequence of making the person more likely to sexually re-offend. As a result of the considerations described above, there has been a loss of perceived legitimacy for the harsh punishments established in sex offender legislation, especially when these laws are applied to juveniles or without appropriate risk assessment. Critics of sex offender legislation call for reforms to dilute and remedy the overreach of long-term, stigmatizing, and punitive measures that target sex offenders. One problem with sex offender legislation is that the category of “sex offender” is overly broad and may include both crimes that are sexually violent and predatory and crimes that are less serious (e.g., urinating in public). There is much variation across the states in terms of classifying the “same” offense and how registrants are classified according to a particular offense, registration requirements and their duration, and the public disclosures made. Some states use sex offender registry criteria that are offense-based (e.g., focusing on the offense of conviction or the number of prior offenses). Other states use offender-based risk assessment systems, and some use a combination of both systems. Because the offense of conviction may not indicate the actual level of risk or dangerousness, several commentators have argued that assessment for purposes of the sex offender registry should not be based on the particular category of offense committed, but should instead use an offender-based risk assessment system (Letourneau et al. 2010). Finally, the states use different decisionmaking processes in reaching classification decisions (e.g., judicial discretion or a multidisciplinary board).

Reforming the Social Control of Sex Offenders

Reforming Registration and Notification Programs Individual states may have different provisions and criteria for removal from the registry and relief from sex offender registration and notification obligations. With the support of law enforcement officers, California recently

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enacted the first significant change since 1947 in the lifetime registration requirement for all sex offenders. In October 2017 (effective January 2021), Senate Bill 384 transformed lifetime registration for all convicted sex offenders into a three-tier registry system that distinguishes between levels of offenders and establishes evidence-based assessment of the offender’s risk of re-offending when considering a petition for registry removal (Williamson 2017e). Tier 1 is reserved for misdemeanor or “nonviolent” or “nonserious” sex offenders who can petition for removal from the registry after ten years (five years for juveniles). Tier 2 offenders are defined as persons convicted of certain specified offenses (more serious than tier 1, but less serious than tier 3 offenses) who can petition for removal from the registry after twenty years (ten years for juveniles). Tier 3 offenders (reserved for those convicted as an SVP, committing assault during the commission of a sex offense, or convicted of possessing child pornography) are still required to register for life, but people on the list can petition for removal if they meet certain criteria. Bradley McCartt, district attorney in charge of the Los Angeles Family Violence Division, told the California State Assembly, “We have a registry that is overburdened with almost 110,000 people that treats someone who committed indecent exposure 40 years ago the same as someone who molested three children today” (Maclachlan 2017b). Similarly, McCartt observed that “lifetime registration causes many people who otherwise might be productive members of society to have a hard time finding jobs and housing, increasing recidivism. . . . By allowing people to have an incentive to be able to have a path off the registry, we have found that it will lower crime” (Maclachlan 2017b). Supporters of the new law also argue that it will provide more efficient resource allocation by focusing law enforcement resources on high-risk sex offenders, rather than “wasting resources tracking low-level offenders who pose no or little risk” (Williamson 2017e). According to Janice Bellucci, executive director of the Alliance for Constitutional Sex Offender Laws, “This is a significant victory for registrants and their loved ones. . . . We are now very close to obtaining freedom from the registry for many people who do not pose a current danger” (Maclachlan 2017b). By some estimates, over half of the people now on the California registry may be eligible to petition for removal (Maclachlan 2017b). A few courts have ruled state community notification provisions to be unconstitutional on the grounds of failure to provide adequate due process, or the retroactive application of the law to designated low-risk offenders. For instance, in the case of Does v. Snyder, 837 F.3d 696 (6th Cir. 2016), the US Court of Appeals held that amendments to Michigan’s Sex Offender Registration Act that imposed extensive reporting requirements and sweeping residency restrictions were unconstitutional because they imposed

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retroactive punishment on sex offenders in violation of the US Constitution’s prohibition against ex post facto laws (Adler 2016).

Reforming Involuntary Civil Commitment Programs Most states no longer permit indefinite involuntary civil commitment and limit the duration of permissible commitment. For example, a Minnesota federal judge in 2015 ruled that Minnesota’s Sex Offender Program and the state law that allowed indefinite civil commitment of sex offenders were unconstitutional (Karsjens et al. v. Minnesota Department of Human Services, US District Court, Civil No. 11-3659, 2015). Minnesota’s sex offender civil commitment statute, under which “the only way to get out is to die,” was regarded as the toughest in the nation (Shapiro et al. 2017). The program had never released any of its over 700 detainees (except one person after a successful court challenge) in its more than twenty years of existence, and offenders did not get adequate treatment under the program administered by the Minnesota Department of Human Services (Serres 2015). However, in 2017 the Court of Appeals for the Eighth Circuit reversed the district court’s ruling and found the Minnesota Civil Commitment Act (MCTA) to be constitutional (Karsjens et al. v. Piper 845 F.3d 394 [8th Cir. 2017]). The Appeals Court held that in order for the MCTA to be unconstitutional, the state’s conduct must be “conscience-shocking,” but that the class of plaintiffs in this case had failed to show that the Minnesota Sex Offender Program deficits were “egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard” (Karsjens et al. v. Piper, p. 410). Thus, some courts are reluctant to reform involuntary civil commitment programs. Reforming Involuntary Outpatient Commitment and Treatment (AOC) Programs The recently passed California Welfare and Institutions Code, section 5346(a)(4)(A) and (B) (2018) provides that in ordering AOC, the judge must determine that the person suffers from a mental illness that has been a substantial factor in hospitalization or mental health services at a correctional facility at least twice in the past thirty-six months, or that the person has committed or threatened at least one act of serious and violent behavior to him- or herself or another in the past forty-eight months. With regard to the actual implementation of AOC for sex offenders, a question arises as to the point in the unfolding criminal justice process at which AOC is or should be triggered. That is, should an alleged sex offender arrested for a nonviolent crime be diverted into AOC (1) before arrest, such as by a police officer calling a psychiatric emergency team to trigger outpatient commitment, or (2) after arrest, with psychiatric evaluation of their suitability for AOC while the person is on a jail hold? This issue has not been resolved yet.

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Other Reforms in the Social Control of Sex Offenders In March 2015, the California Supreme Court eased residency restrictions for many sex offenders by allowing certain “low-risk” sex offenders to reside in places closer to schools and parks that were previously designated off-limits to all sex offenders, ruling that the residency restrictions of Jessica’s Law were unconstitutional (In re William Taylor et al. on Habeas Corpus, S206143 [San Diego County] [California Supreme Court, filed March 2, 2015]). The California Department of Corrections and Rehabilitation announced that it would apply the ruling in every county statewide. In June 2018, a Los Angeles County judge struck down a City of Maywood ordinance that placed significant residency restrictions on sex offenders who were not on parole; the grounds for the decision were that the restrictions were preempted by state law (Maclachlan 2018b). There has also been judicial resistance to states and localities that have attempted to disenfranchise sex offenders in the community from voting ever again, and the protection of the legal rights of sex offenders has been extended to the voting rights of a group of SVPs. A Fresno County Superior Court judge recently dismissed a lawsuit brought by the City of Coalinga seeking to invalidate sex offender inmates’ votes in the previous year’s election (Vosburg v. County of Fresno, 17 CRCG04294 [2018]). And the California State Assembly Elections and Re-Districting Committee rejected Senate Bill 2839 (2018), a bill that would have barred sex offenders being held at the State Hospital in Coalinga from voting (Maclachlan 2018b). Those prisoners can vote because their confinement is civil rather than criminal. Advocates for changes in sex offender registries maintain that they unfairly mix dangerous criminals with people who pose no threat to society. Statutory rape, for example, is sex with an underage person—that is, someone who is unable to give legally valid consent. These include cases of the “Romeo and Juliet” problem of young lovers, where a minor (typically a male) is convicted of having sex with another minor (typically a female) and is put on the SOR. As a result, the juvenile may become unable to attend school, go to the library, use a computer to study, and so on, substantially limiting his or her ability to complete school, find employment, or succeed in life. All across the United States, young lovers are increasingly finding themselves enmeshed in the criminal justice system with a “sex offender” designation. As Belkin (2011) suggests, “teenagers find themselves on the public Sex Offender registry, alongside SVPs (sexually violent predators), pedophiles, or child pornographers, sometimes for having consensual sex with an underage partner, for ‘streaking’ or ‘sex-ting,’ i.e., sending racy texts or self-portraits which can be considered child pornography.”

Reforming the Social Control of Juvenile Sexuality

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Almost half the states have enacted so-called Romeo and Juliet laws that address the situation of consensual sexual conduct between teens and young adults as part of an intimate relationship, where one or both of the parties has not reached the age of legal consent and there is a small age difference between the participants (Dumond 2018). Although the age of legal consent and the specific age difference allowed by law vary by state, the acceptable age difference between the participants is generally four years or less. When the specific conditions are met, Romeo and Juliet laws may prevent such behavior from being treated as statutory rape, reduce the charge from a felony to a misdemeanor, reduce the penalties (which vary from state to state), allow expungement of the criminal record after completion of the sentence, and remove the requirement of registration as a sex offender or reduce the length of time the person must remain on the registry. States without Romeo and Juliet laws instead set a specific age of consent and make it a crime to have consensual sex with an underage person, irrespective of how much the ages of the parties differ. There are no reliable statistics on how many juveniles are listed on SOR, and not all states register juveniles, but Lisa Belkin (2011) stated that sex offender laws are “labeling young men in consensual relationships as ‘dangerous’ for the rest of their life.” She described an actual scenario in which a nineteen-year-old male and a sixteen-year-old female had sex and the longterm life consequences that resulted: “The girl’s mother thinks they are moving too quickly and calls the police. . . . He is arrested and put on the Texas sex offender’s list.” The youth is placed on probation and avoids incarceration, but “is forced to move out of his home because the law says he can’t live in the same house as his 12-year-old sister. Eventually the boy and girl marry and have four daughters and, fifteen years later, he is still a registered sex offender who is not allowed to coach his children’s soccer teams, get a job at a major corporation, or leave the state without registering with law enforcement.” The jailing of an adolescent in Indiana involves another case of SOR overreach as applied to juveniles, and this case is associated with the use of social media technology. Zachery Anderson, a nineteen-year-old youth from a small Midwestern city, met a girl through the dating app Hot or Not (Bosman 2015). After flirting over the internet, he drove to pick her up at her home in Michigan, located a few miles across the state line from his house in Indiana. The police report stated that they had sex in a nearby playground, and now Anderson faces a lifetime of involvement in the criminal justice system. According to the girl’s own account, she told Anderson that she was seventeen, a year over the legal age of consent in Michigan, but she was actually fourteen years old. The case was brought to the attention of law enforcement after her mother, who was worried about her daughter’s whereabouts, contacted police. Anderson turned himself in to police, after which he was arrested and charged; he pleaded guilty to

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fourth-degree criminal sexual conduct and was sentenced to ninety days in jail and probation. Following the guilty plea, the judge refused to grant him the special status for youthful offenders allowed under state law, which would have freed him from inclusion on the SOR. Instead, under Indiana state law, he probably will stay on the SOR for life (Bosman 2015). In addition, his probation requires that he remain off the internet, even though he needs to use it to study computer science (Bosman 2015). Lawyers for young sex offenders characterize Anderson’s story as “a parable of the digital age: The collision of temporary relationships that young people develop on the internet and the increasing use of criminalization of sexual activity through the expansion of on-line sex offender registries” (Bosman 2015). It has been argued that juvenile sex crimes are different from those of most adult sex offenders and that “in many cases of early adolescents who sexually touch younger kids in their families, the best treatment may not be ‘sex offender’ treatment at all. . . . Some children have never been taught that such touching is unacceptable and providing training in sexual boundaries will suffice” (Elizabeth Letourneau, quoted in Stillman 2016). The uniqueness of juvenile sex offending suggests that registration for juveniles should be limited in duration, and there are now efforts in several states to change sex offender registries so that they do not include juveniles or to limit the duration of registration for juveniles (Logan 2017). Critics further urge that registration of juveniles should be based on an individual risk assessment by court professionals (not just on the offense that was adjudicated), and that ways of exiting the registry should be expanded after a specified period of time and compliance with specific criteria (Logan 2017). Some lawmakers who are critical of SOR and other social control strategies nevertheless decline to push for reforms because they do not want to be viewed by the public as limiting the effectiveness of child safety measures. Despite this political inertia, a grass-roots social movement has emerged to reform sex offender laws and help juveniles who have been labeled “sex offenders” for teenage sexual behavior. One result of this grass-roots movement is the 2014 ruling of the State Supreme Court of Pennsylvania that mandatory lifetime sex offender registration for juveniles is unconstitutional (Stillman 2016). This chapter has described the development of criminal justice control measures targeted at alleged and/or adjudicated sex offenders over the past several decades. During the twentieth century (and extending into the twentyfirst century) the institution for social control of sex offenders was created and diffused throughout society within and across levels of government (local, state, and federal). It now is impossible to live in the United States without being subject to legislation and government programs that define,

Conclusion and Implications

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prohibit, and punish sex offenses. The “moral panic” that has driven this process has demonized sex offenders as “folk devils” and led to extreme social control measures such as lifelong confinement without treatment (or with involuntary treatment), due process violations, and loss of other civil rights. Of course, these extreme measures are not limited to sex offenders; the mentally ill and drug users have been subjected to similar measures in the past. However, those social problems are further along in the evolution of social control and may provide insight into where social control of sex offenders is headed and how the course of development might be altered. Our analysis of the social control of sex offenders described the expansion and escalation of governmental control, including the emergence of sex offender registries, the creation of “sexually violent predator” as a new category of offender, and the introduction of programs to incarcerate ex-offenders after completion of their criminal sentence or to limit civil rights once returned to the community. More importantly, our analysis has examined the ongoing second generation of social control institutionalization—that is, the introduction of alternative regulatory strategies when the original strategies are seen as unsuccessful in controlling the problem (Peyrot 1984). The initial social control expansion and escalation brought with it constitutional challenges regarding significant infringements on the liberty and privacy rights of offenders, especially for low-risk offenders. The perceived failure of these measures—including the lack of empirical evidence to demonstrate their effectiveness (Prescott and Rockoff 2011)—and the abuses they have generated have led to reform efforts to address the inequities resulting from previous social control initiatives and to reestablish public legitimacy. While some victim rights and community protection advocates oppose reform measures, many legislators and law enforcement officials have complained that the current allocation of resources for strict controls on lowerrisk sex offenders is costly and inefficient and makes it difficult to focus efforts on the most serious offenders. Indeed, there are reasons to expect that the current cycle of social control of sex offenders may be moving toward protection of the fundamental rights of sex offenders as members of society. The courts have begun to address the injustice of the social control system by overturning some measures as ex post facto laws or as due process violations prohibited by the US Constitution. Nonetheless, the federal appellate courts and the US Supreme Court have been mostly reluctant to overturn sex offender and SVP statutes or to invalidate sex offender programs, ruling in the interest of public safety and against the rights of sex offenders and SVPs. Other than “conscience-shocking” government actions, the courts have affirmed extreme social control measures for sex offenders, holding that conviction for certain sex crimes carries particular consequences (Smith v. Doe, 538 U.S. 84, 103-104 [2003]), and leaving it to state courts and governments to adjudicate and remedy challenges to state civil confinement systems.

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State legislatures are establishing criteria and procedures for defining offenders’ level of risk and calibrating control measures accordingly, including replacing indeterminate (potentially lifelong) sentences with periodic review and the possibility of completing one’s punishment. Treatment programs are being moved out of prisons and into inpatient mental health facilities and outpatient community settings. Again, the social control of mental illness and substance abuse has undergone similar changes in the recent past, and there is still a need to universalize changes in the control of sex offenders across all jurisdictions in order to complete this process. However, merely correcting the abuses of the past is not enough. There is a need for more effective sex offender treatment and rehabilitation programs. Existing programs that address both the victim and perpetrator issues of sex offenders and incorporate a subordinate focus on their mental health needs (like problem-solving courts) comprise a small but significant modification of the conventional criminal justice emphasis on perpetrator-oriented issues (Petrunik and Ilea 2010). The prospects for prerelease and/or postrelease mental health treatment programs for sex offenders to become a regular part of the correctional system will depend on several factors, including the available resources for integrating mental health treatment into corrections and conflicts between correctional and mental health programs. Moreover, government funding of voluntary mental health treatment for ex-offenders and at-risk nonoffenders could serve an important preventive function. Everyone recognizes that people against whom sex crimes are committed are (or should be) considered victims. Less recognized is the fact that there are two ways that sex offenders also could be considered victims. First, many sex offenders have experienced sexual victimization themselves as children and learned the sexual victimization behavior as a child or adolescent (Petrunik 2005). Thus, they have the dual status of being both a victim and a perpetrator of sexual abuse (Petrunik and Ilea 2010). Second, sex offenders (like racial minorities) are also victims of the legal process (both criminal and civil); they have diminished legal rights and receive extremely harsh punishments of long and often indefinite duration, such as confining the person for life, perhaps without treatment. As victims of sexual abuse, one might assume that sexual victim/perpetrators would merit mental health treatment. However, until recently sex offenders have elicited little public sympathy, and the criminal justice system has privileged their “perpetrator” status over their “victim” status (Petrunik and Ilea 2010). As the moral panic over sex offenses decreases, it may become possible to consider more controversial alternatives, such as decriminalizing selected behaviors such as exchange of nude selfies and sexting by juveniles. Changes might be considered in what should happen if a person over the age of consent has consensual sex with a person under the age of consent, but without the intent to do so. For example, is a “reasonable mistake”

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defense possible if the underage participant has lied about being underage (assuming the “reasonable actor” provision holds, because it would not be reasonable to believe that a person in elementary school is over the age of consent)? Enacting and implementing rational, equitable laws that prioritize prevention and rehabilitation may not be as emotionally and politically satisfying as condemning and punishing any instance of questionable behavior, but it is the hallmark of justice in democratic societies. 1. Although there originally was a consensus among researchers that “dangerousness” was difficult to assess and predict accurately (e.g., Pfhol 1984), more recent research has modified this view. When clinicians use a range of factors empirically related to future violence and when they limit their predictions to specific kinds of violent conduct, they can predict the risk of violence with a reasonable degree of accuracy (Heilbrun 2009). 2. The commitment process in California operates as follows: If two state evaluators agree that a soon-to-be-released sex offender meets the SVP criteria, the case is referred to a district attorney for the filing of a petition for commitment. The commitment proceedings are held in superior court, and the person has a right to a trial by jury or can waive this and have the case heard by a judge. The SVP law affords offenders, among other things, the right to an attorney and trial rights to cross-examine witnesses. If a unanimous jury or the judge determines that the person fits the criteria for being an SVP, he or she is committed to the care of the State Department of Mental Health for an indefinite stay. After the state has committed a sexually violent predator, it conducts an annual review and the Department of Mental Health may determine that the patient can be released into the community on a “conditional release program.” Alternatively, a designated SVP may petition the court for such relief. If the court agrees that the patient no longer meets SVP criteria and no longer would present a threat to public safety upon being conditionally released into a supervised program, the court can order his or her release. Alternatively, the court can decide that the patient is ready for unconditional release, in which a parole agent supervises the person for the length of his or her parole (usually ten to fifteen years). Of course, the person on parole still must fulfill the California sex offender registration requirements and otherwise comply with the terms and conditions of parole or will be subject to a parole violation/revocation proceeding. 3. Due to concerns that paroled sex offenders were disabling or removing their electronic monitoring devices, California Penal Code, section 645.5(a) was passed in 2017. This legislation states that any person required to register as a sex offender is prohibited from removing or disabling any GPS or other monitoring device affixed to his or her person as a condition of parole, with a violation resulting in the revocation of the person’s parole and incarceration in jail for 180 days. 4. An actuarial risk assessment tool utilizes specific risk factors that are scored and rated, with the scores then combined into a final score that is applied to the prediction specified by a formula developed through empirical research (e.g., using the Violence Risk Appraisal Guide, Harris and Rice 2003). Other risk assessment tools do not combine ratings into a final score, but measure historical, clinical, and risk management factors to reach a professional judgment based on the risk factors (Heilbrun, Douglas, and Yasuhara 2009).

Notes

144 Table 7.1 Stage

Overview of Social Control Development for Sex Offenders Year

Legislation/Action

Policy formation– 1983 An Act to Expand expansion Use of Outpatient Involuntary Commitments for Mentally Ill Policy formation– 1990 Washington State expansion sexually violent predator (SVP) and involuntary civil commitment law Policy formation– 1996 California Penal expansion Code, § 645 Policy 1997 implementation Policy 2002 implementation Policy formation– 2006 expansion and escalation Policy formation– 2008 expansion Policy formation– 2015 expansion Policy formation– 2015 contraction Policy 2016 implementation– contraction

Function of Action

North Carolina is the first state to enact involuntary outpatient commitment for sex offenders First state to enact SVP and involuntary civil commitment law

First state to specify the use of chemical castration for repeat child molesters as a condition of parole Kansas v. Hendricks US Supreme Court establishes states’ right to enforce involuntary civil commitment of sex offenders Kansas v. Crane US Supreme Court requires states to determine that defendants cannot control their dangerous behavior before initiating involuntary civil commitment Sex Offenders, Sexually California expands sex offense Violent Predators, categories, increases penalties Punishment Residence for all sex offenders, and Restrictions, and extends application to juveniles Monitoring Initiative Keep the Internet Requires sex offenders to Devoid of Sexual provide to the National Sex Predators Act Offender Registry all internet identifiers Military Sex Offender Requires the secretary of defense Reporting Act to inform the attorney general of military personnel required to register as sex offenders Karsjens et al. v. Federal judge rules Minnesota’s Minnesota Department sex offender program and indefof Human Services inite civil commitment of sex offenders are unconstitutional Does v. Snyder Federal judge rules that Michigan’s sex offender registration is an unconstitutional ex post facto law continues

145 Table 7.1 Stage

Continued

Year

Legislation/Action

Policy formation– 2017 California Senate contraction Bill 384

Policy 2017 California Department implementation– of Corrections and contraction Rehabilitation Policy 2017 Karsjens et al. v. Piper implementation– expansion Policy 2018 California Welfare and implementation– Institutions Code contraction

Policy 2018 Vosburg v. County implementation– of Fresno contraction

Policy formation– 2018 State Assembly contraction Elections and ReDistricting Committee rejects Senate Bill 2839

Function of Action

Sets up tier system for risk assessment that allows offenders to petition for removal from sex offender registry Announces reduction in residency restrictions for sex offenders US Supreme Court reverses Karsjens et al. v. Minnesota Department of Human Services and finds the Minnesota Civil Commitment Act constitutional Establishes criteria that must be met prior to initiating involuntary outpatient commitment for treatment Court dismisses a lawsuit by the County of Fresno seeking to invalidate sex offender inmates’ votes in prior year’s election California rejects senate bill that would have barred sex offenders at State Hospital in Coalinga from voting

8 Reversing Mass Incarceration

percent of the world’s population, but nearly 25 percent of the world’s incarcerated population (Pfaff 2017; Mauer 2017). Our country imprisons people at an unprecedented rate, five times that of the rest of the world and much higher than similar democratic countries (Mauer 2017). The US prison population grew exponentially from the early 1970s to 2008 due to a number of criminal justice system initiatives. Although the incarcerated population has decreased slightly since 2009, mostly due to state legislative reforms (e.g., see below for California), “stabilizing at a world-record level of incarceration clearly does not represent anything close to the scale of what is necessary to reverse these trends” (Mauer 2017). In this chapter, we discuss the institutional development of mass incarceration through the expansion and escalation of criminal justice social control. (See Table 8.1 at the end of the chapter.) We also describe several subsequent criminal justice reform measures intended to reduce the prison population through contraction and de-escalation, including strategies for deincarceration, diversion of offenders into alternative and noncustodial programs, and the increased monitoring of offenders in the community through use of various surveillance techniques and technologies. We review postreform data from California to examine the initial impact of reforms on reversing the mass incarceration trend—for example, reductions in pretrial detention through bail reform, reclassification of felonies as misdemeanors, reductions in length of sentences, early prison release, and minimization of use of probation or parole violations as reasons for reincarceration. Finally, we consider how institutional developments might evolve during the near future.

The United States is the world’s largest incarcerator. We have 5

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Decisions must be made about the allocation of criminal justice system resources because the system must deal with a large and never-ending flow of criminal cases. There are two ways that people get incarcerated: (1) by being sentenced by a judge or (2) by violating the conditions of early release while in the community and being returned to prison (or jail) for a parole (or probation) violation by correctional officials. As Clear and Austin (2009) note, the total daily prison population is a function of the number of inmate admissions and the length of their stay. Any prison population reflects intentional decisions about prison space allocation as compared to allocation strategies that favor alternative methods of social control. Each state designs allocation policies and procedures that create a prison population, and such allocation strategies vary over time. The introduction of different allocation strategies will generate a different prison population, with a certain size and specific demographics (e.g., race, ethnicity, gender, age, and so on). Decisions by policymakers about the allocation of limited criminal justice resources to prisons, as opposed to other noncustodial and community correctional alternatives, are based on distinctions between categories of offenders and reflect an overriding concern to reserve criminal justice resources and prison space for offenders perceived as “serious” and/or “violent.” Of course, there are limits on the extent to which reductions can be made to the prison population without endangering public safety. The ultimate composition of a state’s prison population results from an interplay of these two opposing principles.

Background

Though no sentencing system operates in an entirely pure form, until the late 1970s all states and the federal government employed an indeterminate sentencing system in which the length of the prison term was not fixed in advance. As Douglas Berman (2017) noted, “vast discretion was the hallmark of both state and federal sentencing.” Judges in this system had discretion to impose sentences within broad ranges (fixed minimums and maximums). The actual term served was determined by parole authorities, who also had broad discretion to decide when to release inmates within the minimum-maximum range after the offender had served a portion of the sentence. Discretionary sentencing was seen as needed in a system that was based on a “rehabilitative ideal” (Allen 1981), with judges (and parole authorities) oriented to individualizing sentences and formulating punishments that were fitted to each offender and their specific rehabilitation prospects and progress (Kadish 1987). In this sentencing system, discretion in sentencing decisions was largely unreviewable by higher courts.

Escalation of Punishment: The Era of Mass Incarceration

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By the mid-1970s, influential judges and critics challenged the indeterminate sentencing system and condemned its lack of transparency, uniformity, and proportionality (Frankel 1973). In addition, many criminal justice scholars and policymakers became disillusioned with the effectiveness of rehabilitation (Allen 1981; Duff and Garland 1994; Wilson 1975), which led to more retributive criminal justice policies, politics, and practices (Wunder 1995). Progressive and conservative reformers both endorsed measures to reform indeterminate sentencing and argued that sentences were often “arbitrary and capricious” and violated the due process and equal protection rights of offenders. These critics opposed the system’s lack of specific criteria for evaluating the various factors relevant to sentencing (Frankel 1973). Other critics contended that the rehabilitative emphasis of discretionary sentencing was unrealistic and sometimes led to overly lenient sentences for offenders who committed violent and/or serious offenses, or who were multirecidivist offenders (Duff and Garland 1994). Critics recommended the formulation of explicit sentencing rules and standards for the application and assessment of the numerous factors relevant to sentencing decisions (“sentencing guidelines”). In the 1970s and 1980s, determinate sentencing spread across the United States. California was at the forefront of this national sentencing trend in 1976 when the state legislature enacted the Uniform Determinate Sentencing Act (codified as California Penal Code, section 1170(a)(1)) and changed the express purpose of criminal sentencing from maximizing rehabilitation to imprisonment for the purpose of punishment. This act grouped crimes into categories, with each category connected to a sentence “triad” that consisted of a high, middle, and low sentence. The act substantially restricted the discretion of sentencing judges; they were directed to impose the middle sentence by default unless a higher sentence was justified by aggravating factors or a lower sentence was justified by mitigating factors. Many states and the federal government enacted mandatory sentencing laws that further limited judges’ discretion in sentence decisions by precluding them from imposing any sentence other than that authorized by lawmakers for the particular crime. There are mandatory minimum sentences for certain types of offenses (e.g., drug and weapon offenses), where the sentencing judge essentially has no option or discretion. 1 Mandatory minimums in effect block consideration of mitigating circumstances in sentencing and usually require minimum terms of incarceration. Some states have also adopted sentencing enhancements, such as for the use of a weapon during the commission of a crime, or classification as a hate crime or terrorism (see Chapter 2). “Three-strikes-and-you’re-out” and other recidivist and habitual offender laws are another form of mandatory sentencing directed at “career criminals” that mandate long prison sentences for repeat offenders. Selective

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incapacitation of chronic offenders is the goal of recidivist statutes and became increasingly popular as a crime-reduction strategy in the 1980s and 1990s. These laws require that any felon convicted of a third felony must serve a lengthy prison sentence as a way of reducing crime. The third felony crime does not have to be for a violent offense. Currently, many states and the federal government have three-strikes statutes, with varying degrees of severity. Three-strikes fervor emerged in 1993 in California in the wake of an especially horrific and highly publicized crime against a vulnerable and sympathetic victim: the kidnapping (at knifepoint) and murder of twelve-year-old Polly Klaas, who was abducted from her bedroom during a slumber party. Polly was sexually assaulted and murdered by Richard Allen Davis, who had two prior kidnapping convictions. The national media not only reported that the kidnapper/killer had an extensive criminal record, but also that he was wanted for parole violation. Constituents pressured lawmakers to take action regarding such violent crimes. In this political context, California voters passed Proposition 184, the Three Strikes Sentencing Initiative (in 1994), and lawmakers quickly enacted the new antirecidivist law. As originally written, the California three-strikes law (codified in California Penal Code, sections 667(e) and 1170.12(c)), was one of the nation’s toughest. This law provided a mandatory sentence of twenty-five years to life (with no parole eligibility for twenty-five years) for anyone convicted of a third felony if they had two prior felony convictions from the list of offenses defined as “strikes,” even if the third felony was not for a serious or violent crime. Under the original law, some offenses (known as “wobblers”) could be classified as either felonies or misdemeanors based on the defendant’s prior record. The threestrikes law also doubled the sentence for a second felony conviction if the person had one prior felony conviction for an offense on the list of strike offenses. During the first two years after the effective date of the three-strikes law, California had an increase of over 15,000 felony offenders who received a sentence of twenty-five years to life, and 80 percent of offenders sentenced under this law had been convicted only of a nonviolent third crime, such as drug use or petty theft (Vitiello 1997). Similar habitual offender laws were passed in other states and have been costly to implement; in addition to increasing prison populations, the aging offenders to which the laws often are targeted are costly to incarcerate because of their greater health-care needs (Grattet and Hayes 2015). These measures accomplished little in the way of specific deterrence (deterrence of recidivism), because most of the offenders sentenced under such recidivist statutes are already aging out of crime. “Truth-in-sentencing” laws are another tough-on-crime measure that became popular at that time. These laws require that offenders serve a specified and significant percentage of their sentence (typically at least 85 percent)

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before they are released from prison. Parole eligibility, good time credits, and other forms of early release are restricted or eliminated. For example, House Resolution 3355, the Violent Crime Control and Law Enforcement Act of 1994 (also known as the 1994 Crime Bill), is a federal truth-in-sentencing law that gives incentive grants to qualifying states that enforce mandatory completion of 85 percent of a person’s conviction sentence. The application of these mandatory sentencing statutes increased the number of incarcerated people, adding offenders to the already expanding prison population, and contributing substantially to mass incarceration. As a result, such initiatives drove up already high correctional spending costs, especially for imprisonment. The tough-on-crime measures of the late 1900s, with an emphasis on punishment, did not produce the outcomes proponents had sought. There is little evidence that this legislation reduced racial disparities in sentencing, the proposed focus of the sentencing reform movement that had motivated its enactment. Indeed, there is now widespread agreement among criminal justice system officials, policymakers, and scholars that the tough-on-crime measures produced several unanticipated negative consequences, including mass incarceration, racial inequity, prison overcrowding, failure to rehabilitate inmates, high recidivism rates, and the construction and operation of additional costly prisons. Several important state-level legislative reforms, particularly in New York and California, have been implemented to reverse the trend toward mass incarceration and its consequences. California, for example, enacted several laws that employ a variety of strategies to reserve prison space for the most serious and violent offenders, to stop the “revolving door” into and out of prison, and to reduce the number of prison inmates and costs of incarceration. According to Lofstrom, Bird, and Martin (2016), California is now a national leader in criminal justice reform related to less reliance on incarceration. California’s reforms have brought about significant reductions in the prison population and made the system less punitive, while simultaneously providing accountability in the community through noncustodial diversion for people who commit less serious crimes. As Arango and McDermid (2018) noted, “in less than a decade, California has gone from being a standard-bearer for the ills of prison overcrowding to a national exemplar of reform, letting tens of thousands of people out of prison and reducing penalties for many crimes.” California is leading the move away from tough-on-crime approaches by implementing several measures that decrease its prison population by limiting prison to serious, sexual, or violent offenders; substantially limiting

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return to prison for a technical parole or probation violation without a new crime; and lowering the maximum time a person will serve for a parole violation (California Penal Code, sections 3000.08 and 3056(a)). California also is replacing the draconian three-strikes law by restricting twenty-five years to life sentences to cases where the third offense was serious or violent (Proposition 36); enacting more lenient sentencing laws to reduce certain crimes from felonies to misdemeanors (Proposition 47); authorizing early release consideration, parole, and participation in rehabilitation programs for nonviolent offenders; and requiring a judge to decide if a juvenile offender should be tried as an adult (Proposition 57). Below we describe several of the key reforms in California that provide a model for other states and the federal government.

Reductions in Sentence Length Proposition 36, a Change in the Three-Strikes Law Initiative (codified in California Penal Code, section 667(d)) was a 2012 ballot measure that amended the three-strikes law to address the overreach of this sentencing law. Proposition 36 required that the third strike be for a serious or violent felony with two or more prior serious or violent felony convictions in order to qualify for a sentence of twenty-five years to life (see California Penal Code, section 667(d)). As a result, some offenders who were currently serving a third-strike sentence could petition the court for resentencing and a reduction of their prison term to a second-strike sentence, provided they would have been eligible for second-strike sentencing pursuant to the amended law. However, the court can still deny a petition to reduce the sentence if the judge determines that the inmate “would pose an unreasonable risk of danger to public” (Hanisee 2017). The amended law does not change how defendants with one prior strike (second-strike offenders) are sentenced, apart from the possible applicability of amendments to the law regarding consecutive sentencing. Criminal Justice Realignment In 2011, California sought to reverse its long-term trend of mass incarceration by enacting the Public Safety Realignment Act (California Penal Code, section 1170) to accomplish criminal justice reorganization. This law was prompted by the US Supreme Court decision in Brown v. Plata 131 S. Ct. 1910 (2011), which ordered the state to correct unconstitutional conditions of prison overcrowding (and inadequate medical and mental health care) and to decrease its prison population by at least 30,000 inmates within two years of the order (Peyrot and Burns 2018). In brief, low-level offenders who have committed a nonviolent, nonserious, nonsex offense are no longer sentenced to state prison and instead are incarcerated in county jails or placed in alternative programs, in community treatment, and/or under

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mandatory supervision. Judges can give convicted offenders a suspended sentence (i.e., no jail sentence is served, provided the offender successfully completes an alternative sentence of mandatory supervised probation), or a split sentence, which imposes a county jail sentence followed by a period of mandatory supervision (e.g., house arrest with electronic monitoring). After realignment, courts have broad discretion to formulate terms of probation or conditions of mandatory supervision in ways perceived to facilitate offender rehabilitation in the community, while also protecting public safety.2 These developments are endorsed by advocates as reflecting a major shift away from the tough-on-crime strategies of our past and instead toward a “smart-on-crime” approach. Realignment resulted in a substantial decrease in the number of people incarcerated in California prisons and shifted the supervision of convicted low-level felony offenders upon their release from state prison and parole authorities to local county jail and probation authorities. As a combined result of realignment and other criminal justice reforms, by the end of 2015 the total California correctional population (including state prison, local jail, parole, and felony probation) had been reduced by 185,000 inmates from 2007 through 2015 (Bureau of Justice Statistics 2015). With no limitation on the length of time felons can serve in jail under realignment, counties are now pressed to implement programs and provide services within jail facilities that were originally designed to hold only short-term inmates. Post-realignment, and after passage of Proposition 47 (below), more than $2 billion in state funds was allocated to local governments to address their added responsibilities under realignment, and an additional $1.7 billion in state bonds was allocated to build more capacity in the state’s county jails (Peyrot and Burns 2018). In addition, there are a range of alternative programs available in sentencing convicted offenders post-realignment, including split sentences, house arrest (home detention), and increased use of electronic monitoring, alternative work programs, day reporting centers, or “probation, supervision by a specialty court, . . . community service, placement in a halfway house or sober living facility, fines [or] mandatory treatment” in various mental health and drug treatment programs, and employment and housing programs (Martin and Grattet 2015; Public Policy Institute of California 2018).

Reclassifying Selected Felonies as Misdemeanors Realignment initially resulted in an increase in the jail population of roughly 9,000 inmates, rendering many jails over capacity (Lofstrom 2016). The enactment in 2014 of Proposition 47, the Reduced Penalties for Some Crimes Initiative (codified in California Penal Code, section 1170.18), reclassified several low-level crimes (including drug possession and five petty theft–related offenses) from felonies to misdemeanors. The resulting

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reduction in sentence severity means that many offenders who otherwise would have been sentenced to prison no longer face that risk, although some critics argue that the law has made it easier for drug offenders to avoid mandatory treatment (Saunders 2015; Sugarman 2015). Section 1170 of the Penal Code also allows people who have completed their sentence for a qualifying felony to apply to the court to reclassify their felony conviction as a misdemeanor. Like Proposition 36, Proposition 47 (California Penal Code, section 1170) allows inmates currently serving felony sentences for qualifying offenses to petition the sentencing court for resentencing and reduction in the felony sentence if the crime of conviction was reduced to a misdemeanor by Proposition 47 (Hanisee 2017). As with Proposition 36, the judge’s discretion not to resentence under Proposition 47 is restricted, and judges can only deny the reduction upon finding an unreasonable risk that the person would commit one of eight specified types of violent crime (Hanisee 2017). The Public Policy Institute of California (2017) reported that after the passage of Proposition 47, “the jail population dropped by 12%” from October 2014 to December 2015, reducing the pressure on local jails that resulted from realignment. Nonetheless, many counties are still releasing inmates early due to being over capacity (Public Policy Institute of California 2018). When offenders are released from confinement under realignment, they are supervised by county probation officers, not state parole officers, and parole populations are now at or below 1990s rates (Public Policy Institute of California 2018). Counties also no longer are permitted to return parolees to prison for violating conditions of parole without their having committed a new crime (Grattet and Hayes 2015; Martin and Grattet 2015, p. 7, note 7), further reducing a significant source of reincarceration.

Early Prison Release of Nonviolent Offenders Proposition 57, the Public Safety and Rehabilitation Act, was approved by voters in 2016. Proposition 57 made it easier for nonviolent offenders to be paroled. Schubert (2016) argues that this “puts public safety at risk” because the law “contains no details about what offenses are ‘non-violent’ and therefore qualify for early release” and “only excludes inmates from early release based on their commitment offense. . . . Prior serious and violent offenses do not act as disqualifiers for early release.” One prosecutor argued that the definition of nonviolent crime under Proposition 57 is unacceptably vague: “Is arson a violent crime when it involves an uninhabited structure? Is the crime of participation in a street gang violence in and of itself? . . . [Yet] neither of these crimes are part of Penal Code Section 667.5, which the regulations primarily rely upon for the definition of a violent felony” (Williamson 2017c). Todd Riebe, president of the California District Attorneys Association, likewise contends that “the regulations

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impermissibly expand the definition of a ‘nonviolent offender’ to include inmates who have completed a term for a violent offense . . . and are now serving a . . . term for a ‘nonviolent’ offense, thus turning violent offenders into ‘nonviolent’ inmates in order to qualify them for early release” (Williamson 2017c). However, to assist parole-hearing officers in making informed decisions about whether to grant parole in a particular case, prosecutors seek to provide the facts of the offense, any prior convictions or history of substance abuse, and so on. The counterargument criticizes the California regulation that excludes nonviolent three-strike offenders from consideration for parole. According to Michael Romano, director of the Three Strikes Project at Stanford Law School, this is “nonsensical and contradicted by . . . [Parole Department] data” (Williamson 2017c). His research on recidivism rates is based on data provided by the Department of Corrections and finds that nonviolent three-strike offenders have lower recidivism risk compared to state prisoners overall and to nonviolent offenders who are eligible for parole consideration. Recently, there have been several related criminal justice reforms. In 2020, California Assembly Bill 1950 limited misdemeanor probation to one year and felony probation to two years, with certain exceptions. Also, in 2020 California Assembly Bill 3234 lowered the minimum age limitations for participation in the Elderly Parole Program to inmates fifty years of age who have served a minimum of twenty years. Finally, in the wake of the Covid-19 pandemic, the state released thousands of low-risk prisoners, as well as many nonviolent inmates with less than a year remaining on their sentence.

Monitoring Offenders in the Community The trend of deincarceration through reform measures has led to fewer offenders being incarcerated. Instead these offenders are being released into community corrections and alternative treatment programs. Thus, these reform measures have increased criminal justice supervision and monitoring of offenders in the community through enhanced use of surveillance techniques and technologies (Muschert 2004). This greater use of technology by probation officers in both regular probation supervision and in mandatory supervision of offenders under realignment has increased the number of offenders who are being monitored, as well as the scope and depth of surveillance. Peter Ibarra (2005) examined the practices used by probation officers to conduct supervision in a preadjudication electronic monitoring program administered by a probation department for clients who face domestic violence charges. He finds that clients are presumed by probation officers to be susceptible to certain “triggers,” and officers orient their supervision work to identifying and managing such perceived risks. Ibarra notes that “technology allows the probation officer to know whether or not the client is at home when he is supposed to be, but it does not let him know what the

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client is doing, either at or away from home.” Ibarra thus concludes that “electronic monitoring is less a technological accomplishment than an interpretive one” (Ibarra 2005, emphasis added) (see the discussion of monitoring in Chapter 7). Glenn Muschert (2004) suggests that the increased utilization of electronic surveillance technologies for monitoring convicted offenders reflects the rise of a “new ethos of surveillance,” including the development of various kinds of surveillance technologies (also see Muschert and Peguero 2010 on the advent of such technologies in schools). However, these authors point out that certain populations and groups have their conduct much more closely monitored and supervised by social control agents than others, and they argue that such developments likely will exacerbate existing racial bias in the criminal justice system and may violate the privacy rights of offenders. As Loo (2017) points out, “in the digital age, our cell phone and other electronic devices can track our every move” and can reveal our location as well as the time and date, thereby exposing more of offenders’ private lives to possible scrutiny. The courts have “broad discretion to fashion probation and/or mandatory supervision terms in order to foster reformation and rehabilitation while protecting public safety” (Loo 2017). While this provides the criminal justice system with opportunities for monitoring the offender’s compliance with surveillance requirements (and sometimes invading their privacy), the terms of the surveillance must be “reasonable,” related to the offense of conviction, and not overly broad. Several California appellate court cases provide guidance on what constitutes reasonable terms of monitoring related to the offense of conviction and how privacy rights may be affected by law enforcement monitoring. In the case of People v. Smith, 8 Cal. App. 5th 977 (2017), the defendant was convicted of possession of a controlled substance and had used a password-protected cell phone to set up a drug transaction. The court ruled that the condition of probation that required the defendant to provide his passwords was necessary in order to search his cell phone and computer for the purpose of preventing him from setting up drug deals and committing future crimes. However, in People v. Appleton, 245 Cal. App. 4th 717 (2016), the defendant had been convicted of sexually assaulting a minor and the court ruled that permitting the search of all of his computers and electronic devices was overly broad; only the computers at his workplace were allowed to be searched. The court suggested that “a narrower solution would have been to require defendant to turn over his passwords for all of his social media accounts” (opinion quoted in Loo 2017). In the case of People v. Bryant, 10 Cal. App. 5th 396 (2017), the California Court of Appeals (Second District, Division 1) considered the constitutional rights that defendants give up when they are placed under supervision after being convicted of a crime. The defendant in People v. Bryant

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was convicted of possessing a concealed, loaded, and unregistered firearm in a vehicle and was sentenced to two years in county jail, with the last 364 days of his sentence suspended. He was placed under mandatory supervision with an electronic search condition of having to submit to the search of his text messages, emails, and photographs on any cell phone or other electronic device in his possession or at his residence. The court of appeals struck down the search condition, holding it to be invalid under the standard of review set forth in People v. Lent, 15 Cal. 3d 481 (1975), which held that it is an abuse of discretion for the court to impose a term or condition that “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.” In Bryant, the court concluded that the search condition failed to meet the first element of Lent because monitoring use of the defendant’s cell phone had no relationship to Bryant’s criminality (past or future). The Bryant court further held that the use of electronic devices was not in itself criminal and that there was no evidence showing that the search condition would aid in the offender’s rehabilitation. This decision narrowed the supervision condition to protect the defendant’s privacy rights, noting that granting a broader search of “cell phone and electronic device[s] . . . could show a digital record of nearly all aspects of the owner’s life, including intimate activities” (Loo 2017). Other cases illustrate how the broad access to electronic media can be legally acceptable. In People v. Ebertowki, 228 Cal. 4th 1170 (2014), the court sustained a search condition that allowed the offender’s electronic devices and social media accounts to be searched because the defendant had used social media to promote his street gang. The offender was required by the court to provide his passwords to the supervising probation officer in order to permit monitoring of his gang activities.

Reducing Pretrial Detention by Reforming the Bail System Although California has been a leader in criminal justice reforms to reverse mass incarceration, reforms have not been without struggle and even defeat. Several states, including New Jersey and Arizona in 2017, have enacted reforms of the cash bail system, replacing ability to pay (which discriminates against lower income citizens and people of color) with assessments of the risk to public safety of pretrial release of defendants. Prior to enactment of the 2017 New Jersey Criminal Justice Reform Act, the state determined that approximately 75 percent of jail inmates were not serving a sentence but were awaiting trial, with an average of ten months of imprisonment without conviction (Dabruzzo 2019). The reformed New Jersey pretrial release program not only reduced the number of persons incarcerated without having been convicted of a crime (and the cost of detaining them) but also

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increased the proportion of those being detained who had been accused of a violent crime—that is, potentially dangerous criminals who previously could pay for their release. Critics of money bail contended that it keeps people behind bars just because they cannot afford bail and encourages innocent persons to plead guilty, notwithstanding the presumption of innocence (Williamson 2015a). Supporters of bail reform also argued that “there is no rational nexus between public safety and the amount of bail” (Aaron and Smith 2019). Most people with pretrial release in fact show up for trial (Ouss and Stevenson 2019; Raphling 2018), and the consequences of remaining in custody are dire for those unable to make bail: “even just a few days in jail can cost them their car, job, housing or even child custody” (Dooley-Sammuli 2017). In addition, studies show that poor people and people of color are more likely than White people to be detained pretrial and that their bail amounts are set higher (Dooley-Sammuli 2017). People who are detained also are more likely be convicted and to face harsher sentences than people who are able to make bail (Dooley-Sammuli 2017). Legislation to end cash bail in California, Pretrial Release and Detention, also known as the California Money Bail Reform Act, was passed and signed into law on August 28, 2018 (Senate Bill No. 10, Chapter 244, effective October 1, 2019). However, the original bail reform bill was completely rewritten just days before the vote to reflect the input of powerful constituencies (including the bail bond industry) and based on the recommendations of judges (Raphling 2018). Many longtime supporters of the bill, including the American Civil Liberties Union (ACLU), “began urging legislators to vote against the bill” after late amendments “entrusted new powers to judges and risk assessment tools that some say have a disproportionately negative impact on non-white defendants” (Maclachlan 2018c).3 Pushback against the perceived flaws in the bill led to an initiative (Proposition 25, Referendum on Law That Replaced Money Bail) to restore cash bail (Maclachlan 2018c), which was approved by California voters in the November 2020 general election, thereby retaining the existing bail system. But in March 2021, the California Supreme Court issued a landmark decision in the case of In re Kenneth Humphrey, S247278 (Cal. March 25, 2021), holding that California’s “common practice” of requiring money bail in most cases and conditioning pretrial release “solely” on whether the person can afford bail was unconstitutional. The court stated that “no person should lose the right to liberty simply because that person can’t afford to post bail.” Thus, California courts must now consider less restrictive, nonmonetary alternatives, with pretrial detention “the exception and not the rule.” It remains to be seen whether California and other states will continue efforts to reform unjust, repressive, and expensive pretrial release systems.4

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Impact of Criminal Justice Reforms on Crime Rates and Public Safety in California

The several criminal justice reforms enacted by California in 2011–2018 are now being evaluated with systematic research that tracks the effects of these reforms on incarceration rates, crime rates, and public safety in California. Magnus Lofstrom (2017) of the Public Policy Institute of California reports that Proposition 36, Proposition 47, and Proposition 57, along with realignment, have reduced the state prison population in California by more than 50,000 inmates, resulting in the removal of these people from prison and their placement in local jails, in community alternatives, or on probation. Although there have been some increases in crime after the implementation of reforms, these do not seem to be consequences of the reforms. One study found that the reforms were not responsible for an increase in violent crime between 2014 and 2016 (which was attributed to changes in how crime was reported), although there was a reform-related increase in property crime in 2015 involving thefts from automobiles and auto thefts (Bird et al. 2018; Public Policy Institute of California 2018). Similarly, reports evaluating the impact of Proposition 47 on crime rates concluded that Proposition 47 was not responsible for the recent uptick in violent crime (which again was attributed to changes in crime reporting), but that the measure may have led to an increase in property crimes, specifically thefts from motor vehicles (Bird et al. 2018). In 2019 and before the pandemic, the violent crime rate in California had decreased. However, during the Covid-19 pandemic in 2020, California motor vehicle theft and commercial burglaries increased by roughly 20 percent and homicide rates increased by about 30 percent, the most in thirteen years (most American cities experienced similar increases in homicides during this period). It is unclear what impact the significant criminal justice reforms that preceded the pandemic had on these 2020 crime trends in the state (Lofstrom and Martin 2021). While conservatives have been more likely to favor policies of imprisonment over rehabilitation or reintegration and progressives have been more likely to endorse reforms, advocates for criminal justice reform often cross over party lines: “conservatives, moderates and liberals increasingly agree that building more prisons is not good for public safety or public budgets, and that too many people are locked up for non-violent offenses” (Anderson 2014). As mass incarceration declines, more offenders eventually will be released into the community, and strategies to enhance community reentry and reintegration will become more important.

An Emerging Consensus

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The emerging bipartisan consensus is reflected in the US Senate’s passage of the bipartisan Fair Sentencing Act of 2010, Public Law 111-220, and the 2018 First Step Act, Public Law 115-391. The Fair Sentencing Act eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine. Because the 2018 First Step Act (Public Law 115391) made the Fair Sentencing Act provisions retroactive, offenders incarcerated for possession of crack cocaine who received a longer sentence prior to the enactment of the Fair Sentencing Act can petition the federal court for a sentence reduction. The First Step Act also reduced mandatory minimum sentences under the federal three-strikes law, allowed judges more discretion to sentence low-level, nonviolent drug offenders with minor criminal histories to less prison time than the required mandatory minimum for a drug offense, and expanded early-release programs (Fandos 2018; Lehman-Ewing 2018). The legislation also introduced programs to improve prison conditions and prepare low-risk offenders for reentry into the community, with the goal of reducing recidivism. Long-term reductions in mass incarceration while maintaining public safety require reinvestment of savings from criminal justice cost reduction measures into community-based programs. This includes diversion from prison into noncustodial alternatives and community supervision with enhanced resources for drug abuse treatment and prevention, mental health services, problem-solving courts (which combine treatment with accountability), community-based antiviolence programs, and employment skills training. Other strategies endorsed by ex-offender advocates and civil rights groups include the chance for offenders to clear their criminal records if they do not re-offend during a specified period, and “ban the box” initiatives to convince employers to remove from job applications the box that asks applicants to indicate if they have a criminal record. In California, for example, people with felony criminal records can now remove certain felonies from their records (Anderson 2015). Such reforms increase the chance that people with criminal records will be able to get a job, secure housing, and achieve economic stability, reducing the likelihood that they will commit future crimes. In the 1970s through the 1990s, the United States undertook a retributive approach to sentencing and punishment that was excessively harsh and out of alignment with the standards and practices of other democratic nations. In the past few years, the federal government and several states, including California, have been working to make their systems less punitive, while still protecting public safety and holding accountable people who commit less serious crimes. By implementing various smart-on-crime alternatives

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to tough-on-crime policies, these jurisdictions have been able to serve the concurrent goals of offender accountability, rehabilitation, and cost savings, while preserving low crime rates and protecting community safety (Zamora 2017). As Ana Zamora (2017) suggests, “voters and policy-makers alike increasingly understand that the ruthless and senseless mass incarceration fever sparked in the 1980’s and 1990’s with the War on Drugs has come at great human and taxpayer cost, with very little benefit to the well-being, economic security and safety of our communities.” Nonetheless, recent increases in certain categories of crimes in California have fueled opposition to these criminal justice reforms (Hanisee 2017; Schubert 2016; Siddall 2017; Williamson 2015b), despite the argument of criminal justice scholars that policy should not be driven by unexamined yearto-year fluctuations in crime rates (Bardos and Kubrin 2018). Opposition to the reforms is evident in several referendums placed on the California ballot for 2020, including Proposition 20, the proposed law that would have reduced the number of inmates eligible for early parole for certain offenses currently considered to be nonviolent and reclassified some theft crimes from misdemeanors to felonies. Consistent with the trend to de-incarceration, this initiative was rejected by voters in November 2020. Although then president Trump instructed federal prosecutors to charge the most serious provable offense and seek the longest sentence possible (Mauer and Gotsch 2017; Kerman 2017; Zamora 2017), this approach ironically occurred at a time when significant criminal justice reforms had been implemented at the federal, state, and local levels. National criminal justice reform is a goal being pursued by the Biden administration. For example, President Biden plans to begin exercising his clemency authority to address racial inequities in incarceration and “other systemic issues in the federal criminal justice system” (Crowley 2021). The Biden administration also is requesting $164 million for “court-based diversion programs, including grants for drug courts, . . . mental health courts, . . . and veterans treatment courts” (Crowley 2021), and an additional $28 million for restorative justice programs, plus “a new grant focused on family-based alternative sentencing” (Crowley 2021). Progressive laws and implementation practices move the country toward rational punishment while promoting public safety, whereas regressive policies and practices move the country back to the failed and cost-prohibitive tough-on-crime approaches of the past (Mauer and Gotsch 2017). Criminal justice policymakers would be well-advised to consider the rising public concern about the fairness, equity, transparency, and proportionality of punishment and to adopt policies that provide offender, victim, and community accountability, along with the possibility for rehabilitative change. Return to past tough-on-crime measures would reverse the progress achieved in repairing the harms of harsh and discriminatory punishment.

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1. The “safety valve” provision of the Violent Crime Control and Law Enforcement Act of 1994 permits federal sentencing judges to reflect mitigating factors in the sentence and go below the mandated minimum sentence in drug cases involving low-level and essentially nonviolent, first-time offenders. 2. For example, in California there is now greater reliance on misdemeanor, substance abuse, and mental health diversion (Gorin, Eisner, and Hill 2021). In addition, Los Angeles County district attorney George Gascon recently issued several special directives to advance rehabilitation over punishment. For felony defendants, absent extraordinary circumstances (which must be approved by a supervisor), there is a presumption of probation rather than a state prison term and in “non-probation eligible cases, the presumptive offer is [the] low state prison term provided for in the relevant statute” (Gorin, Eisner, and Hill 2021). However, implementation of these new policies has led the union that represents the Association of LA County Deputy District Attorneys to file suit against Gascon, seeking to end his mandate that they stop requesting sentencing enhancements. 3. According to John Raphling (2018), “racist algorithms and unlimited judicial discretion threaten to increase pretrial incarceration in California.” He explains that “because the tools estimate risk of re-arrest, they are largely predicting police behavior, as police patrol more aggressively in neighborhoods where poor people and people of color live, making more stops, searches and arrests than in wealthy and white neighborhoods.” He cites a study that found that one frequently used assessment tool wrongly classified Blacks as high-risk at nearly twice the rate of White people, and wrongly classified Whites as low-risk at a much higher rate than Blacks. 4. On a federal level, then senator Kamala Harris and Senator Rand Paul formed a bipartisan team to endorse bail reform and have proposed federal legislation to give incentives to states to enact reforms in their money bail systems (Dooley-Sammuli 2017).

Notes

Table 8.1 Stage

Overview of Social Control Development of Mass Incarceration Year

Legislation/Action

Policy formation– 1976 Uniform Determinate escalation Sentencing Act

Policy formation– 1994 Violent Crime escalation Control and Law Enforcement Act

Function of Action

California groups crimes into categories, with each category connected to a high, middle, and low sentence, and restricts the sentencing discretion by mandating the middle sentence as the default A federal “truth-in-sentencing” law that gives incentive grants to qualifying states that enforce mandatory sentencing of 85 percent of a person’s conviction sentence

continues

165 Table 8.1 Stage

Continued

Year

Legislation/Action

Function of Action

Policy formation– 1994 Proposition 184, the California doubles the sentence escalation Three Strikes for a second felony conviction Sentencing Initiative and provides a mandatory sentence of twenty-five years to life (with no parole for twenty-five years) for anyone convicted of a third felony Policy formation– 2011 The Public Safety California essentially halts the de-escalation Realignment Act return to prison of released offenders for parole violations Policy 2011 Brown v. Plata US Supreme Court orders implementation– California to decrease its de-escalation prison population by at least 30,000 inmates within two years Policy formation– 2011 Per Brown v. Plata Low-level offenders who had de-escalation decision, California committed a nonviolent, nonenacts the Public serious, nonsex offense are no Safety Realignment longer sentenced to state prison. Act Courts have broad sentencing discretion to facilitate offender rehabilitation in the community, while also protecting public safety Policy formation– 2012 Proposition 36, a California amends its “threede-escalation Change in the Three- strikes” law to require that the Strikes Law Initiative third strike be for a serious or violent felony with two or more prior strikes in order to qualify for a sentence of twenty-five years to life Policy formation– 2013 California Penal Code, Changes the amount of time de-escalation §§ 3000.08 and someone will serve in county 3056(a) jail for a parole violation (revocation) to a maximum of 180 days, with certain exceptions Policy formation– 2014 Proposition 47, Reduced California reclassifies several de-escalation Penalties for Some low-level crimes from felonies Crimes Initiative to misdemeanors, allowing inmates to petition for reclassification of their offense as a misdemeanor and a sentence reduction

continues

166 Table 8.1 Stage

Continued

Year

Legislation/Action

Policy 2014 People v. Ebertowki implementation– expansion Policy formation– 2016 Proposition 57, the contraction Public Safety and Rehabilitation Act Policy 2016 People v. Appleton implementation– contraction Policy 2017 People v. Bryant implementation– contraction

Policy formation– 2017 New Jersey Criminal contraction Justice Reform Act

Policy formation– 2018 First Step Act de-escalation

Policy formation– 2020 California Assembly de-escalation Bill, 3234

Function of Action

California court allows probation search of the offender’s electronic devices and social media accounts, because defendant had used social media to promote his street gang California makes it easier for nonviolent offenders to be paroled by eliminating prior offenses as disqualifiers for early release California Court of Appeals rules that the probation search for a sex offender that permitted searching all his computers and electronic devices was overly broad California Court of Appeals prohibits an electronic search condition of probation that is not related to the crime of conviction, relates to conduct that is not otherwise criminal, or regulates conduct that is not reasonably related to future criminal behavior Replaces cash bail with an assessment of various risk factors for granting bail Modifies federal sentencing laws: retroactively reducing mandatory minimum sentences, allowing more discretion to sentence offenders below mandatory minimums, reducing sentencing disparities for crack versus powder cocaine, expanding early-release programs, improving prison conditions, and preparing low-risk offenders for community reentry Lowers the minimum age and limitations for participation in the Elderly Parole Program to inmates 50 years of age who have served a minimum of 20 years

continues

167 Table 8.1 Stage

Continued

Year

Legislation/Action

Function of Action

Policy 2020 California Department In response to the Covid-19 implementation– of Corrections and pandemic, CDCR released de-escalation Rehabilitation 10,000 prisoners considered to (CDCR) be low risk, and inmates who had less than a year on their sentence and had not committed a violent crime could be eligible for release Policy formation– 2020 California Assembly Limits misdemeanor probation de-escalation Bill 1950, Length to one year and felony of Terms probation to two years, with certain exceptions Policy formation– 2021 In re Kenneth California Supreme Court rules de-escalation Humphrey that requiring monetary bail in most cases is unconstitutional and that courts must consider nonmonetary alternatives to pretrial detention

9 Extending Problem-Solving Courts

chapters. Earlier chapters each focused on a single social problem and examined the development of the social control institution for that problem, taking notice of parallels with other problems without focusing on those parallels (which are addressed more fully in the concluding chapter). In fact, for one social problem (racial bias and injustice) the current events in the criminal justice system were so critical and complex that we devoted two chapters to their examination (one specifically to policing). In contrast, the current chapter focuses not on the social control of a single problem, but on the development and diffusion of a specific social control strategy— hybridization of the court system. The particular type of hybridization we examine is the institutional diffusion of the mental health approach into the criminal justice system in order to facilitate offender rehabilitation. One of the major processes of social development (in criminal justice as well as other social domains) is the proliferation and specialization of institutional structures. As social domains expand, institutional structures are developed to meet the increased demand for regulation. This process is evident in the criminal justice system, including the judicial system. Promising developments are diffused across jurisdictions and take on developmental trajectories of their own. One prominent example is the development of a growing number and types of problem-solving courts. These courts are specialized in terms of the kinds of problems they address and the types of strategies they employ. Problem-solving courts are alternative courts designed to manage the underlying problems of specific categories of offenders who become enmeshed in the criminal justice system and thereby reduce crime and recidivism.

The case study in this chapter differs from those in preceding

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Some proponents of problem-solving courts prefer the term collaborative courts in referring to these courts. Perhaps this is because the problemsolving court designation promises too much. In this book, we use the two terms interchangeably to refer to these alternative and specialized courts. One of the key components and organizing principles of problem-solving courts is “collaboration,” whereby judges and an interdisciplinary “team” of legal and nonlegal professionals, both inside and outside the formal criminal justice system, cooperate and share information to facilitate the recovery of each client and prevent future crime. The notion of “collaboration” also includes developing ties with community-based service providers and other “partners” in the local community to “improve inter-agency communication, encourage greater trust between citizens and government, and foster new responses to problems” (Center for Court Innovation 2009). The plan of this chapter is to describe the development of problemsolving courts within the criminal justice system as an alternative to traditional prosecutions and punishments. (See Table 9.1 at the end of the chapter.) Our analysis first examines the creation, proliferation, and development of “drug courts,” the prototype for additional types of problem-solving courts handling other specialized criminal justice populations. We then examine the research describing the processes and evaluating the improved outcomes for drug courts, the only type of problem-solving court that has been studied in depth. Next, we describe the expansion of drug courts in California from a smallscale operation to a mainstream strategy for dealing with drug-related criminality. We also report on the operations of several other types of problemsolving courts, including young adult court and veterans treatment court. Finally, we consider emerging trends involving problem-solving courts and problem-solving strategies in criminal courts more generally, with particular attention to recent developments in California. A major trend in the intersectionality of social control since the 1970s has been the merging of criminal justice and mental health approaches—for example, the importation of mental health strategies into the criminal justice system (Marks and Turner 2014). The focus of this chapter is one such trend, the importation of mental health strategies into the court system. In therapeutic jurisprudence, the courts not only employ a rehabilitative approach individualized to the defendants who appear in court, they also bring mental health personnel into the routine operations of the court. Court personnel specialize in dealing with a certain type of offender, and court operations are customized to deal with those offenders’ problems. The initial impetus for the development of problem-solving courts (specifically, drug court) was the explosion of recreational drug use during

Background

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the emergence of youth culture in the 1960s and 1970s (Peyrot 1984). The dramatic upswing in drug use by middle-class youth resulted in a parallel involvement in the criminal justice system—arrest, prosecution, and sentencing—resulting in a criminal record and possible incarceration. Critics, including middle-class and powerful members of the public concerned with the devastating effects on children like their own, pressured for policy changes that would reduce the negative consequences of enforcing drug laws. Programs such as “diversion” from the criminal justice system (e.g., probation before judgment, or PBJ) were developed. However, in this system of diverting drug cases into court-mandated treatment, treatment was not tightly integrated into the criminal justice system, and there was little provision for judges to supervise the progress of clients closely, which enabled substance abusers to negotiate agreements with treatment providers to receive minimal or perfunctory treatment (Peyrot 1985). Increased penalties for drug offenses, along with other “get-tough” sentencing laws and policies of the 1980s and early 1990s (e.g., mandatory minimum, mandatory sentences, and habitual offender [three-strikes] laws), led to criminal justice system overload and racial disparities in sentencing and punishment (see Chapters 6 and 8). This expansion of social control created its own unanticipated problems, including exorbitant correctional costs that were exacerbated because they occurred in the midst of the Great Recession of 2008–2009, requiring substantial criminal justice system budget cuts at the federal, state, and local levels (Peyrot and Burns 2018). The escalation of social control associated with punitive criminal justice policies necessitated adaptation by the criminal justice system (Peyrot and Burns 2018). Problem-solving courts originally were proposed as a way to handle the overload of low-level drug crimes and other so-called quality-of-life offenses in the criminal courts and the huge increases in state and federal prison populations occasioned by implementing harsh drug laws and heavy drug law enforcement (Miller 2009; Peyrot and Burns 2018). Problem-solving courts are based on the idea that society would be better served by using therapeutic responses to address the criminal justice system problems of overload, mass incarceration, high recidivism, and cost by preventing the recycling of persons with unmet substance abuse and mental health treatment needs back into the system. Drug courts divert drug offenders away from incarceration and into communitybased treatment and services by integrating therapeutic activity and drug treatment directly into the courts through judicial supervision of treatment. The widespread growth of drug courts (and other alternative problem-solving courts) reflects the diffusion of mental health strategies and practices into the

Drug Courts

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criminal justice system as a way of handling defendants with combined mental health and substance abuse issues (Burns and Peyrot 2003; Peyrot and Burns 2010). The problem-solving court movement began with the first drug court, which opened in 1989 in Miami (Dade County), Florida. The second drug court opened in Oakland, California, in 1991. In drug courts, court-supervised treatment remains within the criminal justice system, rather than in another institutional sector, such as the public health system. Drug court may reduce criminal penalties, but judges retain discretionary authority to administer rewards, sanctions or punishments, and interventions considered responsive to the progress (or regress) of defendants referred to as “clients” (Burns and Peyrot 2003; compare Goldstein, Freud, and Solnit 1979). Drug courts combine treatment with the threat of sanctions and punishments, including brief periods of incarceration (“shock incarceration”), or even removal of the client from the program by criminal sentencing, commonly with harsher penalties for those who fail in drug court than for offenders who are conventionally sentenced (Boldt 2010; Gross 2010; O’Hear 2009). Judges in drug court (and other “team” members) closely monitor and respond to the progress (or regress) and compliance (or infraction) of offenders in the treatment program. Ethnographic studies of drug courts (and other problem-solving courts) are useful for understanding how the court’s practical organizational features shape its daily interactions and decisionmaking practices and how broad principles like “collaboration” or “problem-solving” are worked out in the court’s accomplishment of its operations. For example, our own ethnographic and ethnomethodological study of several drug courts in California focused on the detailed interactions between drug court judges and clients/defendants (Burns and Peyrot 2003). Our research found that drug court judges use a “tough love” process of rewards and sanctions to keep clients engaged in treatment and in compliance with program requirements and treatment regimens. In addition, we found that the success or failure of an individual client is assessed by drug court judges who routinely employ a sharp dichotomous contrast, that “construct[s] the defendant as either a personally responsible, rehabilitatively changed ‘recovering’ person, or, alternatively as a person in need of sanction” (Burns and Peyrot 2003, emphasis added). Our study found that clients negotiate with judges over the interpretation of their infraction(s) and that clients can be terminated from the program, moved back in treatment stages, or have the duration of treatment extended. Alternatively, they can be advanced forward onto the next stage of treatment and eventually graduation. The fate of clients in drug court is directly tied to how they are evaluated to be doing in the program, in terms of the court’s locally defined understandings of “compliance,” “infractions,” and related notions. These evaluations have implications for why some

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clients end up “succeeding” in drug court, while others “fail” in the program (Burns and Peyrot 2003; and compare Mackinem and Higgins 2010). Participation in drug court (and in other problem-solving courts) is voluntary. Each client must consent to participate and consent can be granted, withheld, or withdrawn. But often the consent given to participate in drug court and other problem-solving courts reflects more of a “coerced voluntarism” (Peyrot 1985), an undesirable choice from among a set of undesirable alternatives, rather than the client genuinely wanting to give up their drug use or misuse. Drug court is essentially an abstinence-or-punishment system with total abstinence as the sole indicator of client “progress” and “success.” A key problem with this approach is that it ignores important insights of treatment specialists (along with clients’ perspectives) that include other kinds of accomplishments as measures of progress and success, such as reduced or less frequent drug use, increased time to relapse, or ability to maintain employment. Quantitative evaluations of the outcomes and effectiveness of drug courts are numerous (e.g., Marlowe et al. 2006) but have been criticized for methodological limitations (Boldt 2010). The strongest methodology, randomized controlled trials involving random assignment of cases to intervention (drug court) and control (traditional court) groups, is rare in such research. Most evaluation studies compare drug court participants with similar offenders who did not participate in the drug court program, or drug court program completers with drug court noncompleters. Evaluation research typically measures recidivism (rearrest or conviction) rates, rather than other important client-level outcomes, such as employment, housing, medical or psychiatric functioning, or positive family interactions (Boldt 2010).1 Marlowe (2008) reviewed several meta-analyses of the results of drug court evaluations that found crime reductions ranging from 8 percent to 26 percent, with most falling around 14 percent. The best programs achieved crime reductions of 35 percent. But these results include studies that lacked methodological rigor and programs that were “poorly implemented, targeted to the wrong types of offenders or had only recently begun operations” (p. 14). However, the Baltimore City drug treatment court study used a strong research design (a randomized controlled trial of multiple programs) and achieved similar rearrest reductions (11 percent to 16 percent over three years compared to the control group). A review of studies with high methodological quality found significant reductions in during-program and post-program recidivism, as well as relapse as measured by objective drug tests (Government Accountability Office 2005). Marlowe (2008) reported that cost savings to the criminal justice system were twice the amount invested in drug court, with even greater savings achieved when including community costs (victim costs, health-care costs, welfare payments, etc.).

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A Government Accountability Office (2005) report found that clients who completed a drug court program had better outcomes than those who dropped out. However, those who completed had greater initial motivation and readiness to change, which is regarded by drug court personnel as evidence of “suitability” for drug court and guides decisions about whether to terminate the client before completing the program (Burns and Peyrot 2003). Ironically, Marlowe (2008) described several studies demonstrating that drug courts work best for those with more serious drug abuse problems and criminal histories, in large part because they do so poorly in standard criminal justice supervision (i.e., probation or prison). Thus, while drug court personnel see these clients as less successful, they actually get more benefit relative to alternative strategies than do the “ideal” clients. Although the early drug courts in California were perceived to be successful in terms of high reported graduation rates and low recidivism, they were resource intensive and costly to operate and therefore served only about 5– 7 percent of convicted drug offenders. Thus, the original California drug courts did not solve the problem of large caseloads because they handled only small caseloads and restricted client admission to those found to be motivated to recover and thus “suitable” for treatment (Burns and Peyrot 2003). Drug court advocates believed that by “net-widening”—a massive expansion making drug treatment available to many more people convicted of drug crimes—needed rehabilitation services could be provided, costs could be kept under control, and pressure from overcrowded court dockets, jails, and prisons could be alleviated. As a result, in November 2000 (and effective July 2001), voters in the state of California approved by ballot initiative the Substance Abuse and Crime Prevention Act (SACPA), also known as Proposition 36 (California Penal Code, § 1210, et seq.). SACPA extended the availability of drug treatment to virtually all first-time or second-time, nonviolent and nondealing drug offenders, sending them into treatment instead of to jail or prison (Burns and Peyrot 2010). Judges in the original drug courts have discretion to exclude an otherwise eligible defendant from participation by finding the person to be “unsuitable” for treatment (i.e., unmotivated and unlikely to succeed) (Burns and Peyrot 2003). However, a defendant who is eligible for SACPA and consents to participate must be sentenced to probation and treatment, independent of his or her perceived potential for recovery (California Penal Code, § 1210.1 (a)). Most defendants who were “suitable” for drug court nonetheless opted for the less restrictive SACPA program over drug court’s more intensive treatment and judicial supervision. This reflects the fact that judicial dis-

Expansion of Court-Supervised Drug Treatment

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cretion to sanction or terminate a client is much more constrained in SACPA courts than in drug courts. SACPA judges are precluded by law from imposing “shock incarceration” as a sanction for noncompliance, such as a failed drug test (Burns and Peyrot 2008, 2010). In addition, in the SACPA program, defendants are allowed three relapses or violations before they can be removed from the program, and then only on the court’s finding that they are “unamenable to [any form of] drug treatment” (California Penal Code, § 1210.1(c)(2); Burns and Peyrot 2008, 2010). The SACPA program enrolled approximately ten times more clients than drug court, or “almost 36,000 people annually, while drug courts averaged 3,000–4,000 annually” (Longshore et al. 2004, p. 25). This expansion of clientele receiving court-supervised drug treatment represents the complete integration of treatment for substance abusers into the criminal justice system. However, Burns and Peyrot (2010) found that this expansion led to dilution of the kind and amount of judicial supervision and treatment being provided and transformed court-supervised drug treatment from a personalized care system in the traditional drug courts into a mass processing operation in the SACPA courts. While SACPA lowered criminal justice costs, it also increased caseloads and the delivery of judicial and treatment services. Larger caseloads and decreased allocations of funds per client meant that the amount and nature of the treatment clients received changed, so that the vast majority of SACPA clients got less costly outpatient treatment, rather than the more costly and intensive inpatient treatment (Burns and Peyrot 2010). In addition, resource constraints altered the nature and extent of judicial involvement with and supervision of clients (Burns and Peyrot 2010). Once SACPA treatment is ordered, the role of the judge is minimized by “farming out” supervision of drug defendants primarily to probation department and treatment personnel (California Penal Code, § 1210.1(c); Burns and Peyrot 2010). As more people opted out of the tougher traditional California drug court system for the SACPA courts, questions were raised about whether people who needed long-term and intensive drug treatment services the most were getting it and about the consequences for outcomes (Burns and Peyrot 2010). After making an initial court appearance, many SACPA participants proved to be “no-shows” at treatment, and SACPA participants had much higher recidivism than participants in the more intensive and selective traditional drug courts (Longshore et al. 2004; Burns and Peyrot 2010). In 2011, the California Criminal Sentences and Misdemeanor Penalties Initiative Statute (Proposition 47) reclassified certain drug crimes from felonies to misdemeanors. An unanticipated consequence of the decrease in the associated penalties is that many drug offenders have less motivation to consent to participate in drug court and have opted out, knowing that they can “walk free in less time than it takes to complete a drug court program” (Sugarman 2015). While this may have the intended effect of lowering

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court-related costs, it may lessen offenders’ motivation to engage in therapeutic activity that could reduce their subsequent criminal involvement. With the perceived success of drug courts in decreasing substance abuse, offender recidivism, and system costs, the number of these courts quickly expanded across the country. Moreover, drug court problem-solving strategies and practices diffused to other types of problem-specific courts, including community courts, domestic violence courts, driving under the influence (DUI) courts, dual diagnosis courts, homeless courts, juvenile drug courts, mental health courts, prostitution courts, reentry courts, veterans treatment courts, and other problem-solving courts (Burns 2018; Gambill 2010; Heward 2007; Marek 2008; Nolan 2009; Peyrot and Burns 2018).2 In addition, problem-solving court advocates have endorsed the application of problem-solving principles to other, mainstream court systems (e.g., Farole et al. 2005). Thus, problem-solving courts (and their principles) have become an accepted part of the criminal justice system.

Diversification of Problem-Solving Courts

Young Adult Court A new kind of problem-solving court that uses a mental health philosophy recently opened in California. Young adult courts were established to handle a specialized population of offenders who had not previously been targeted for diversion and treatment—that is, young adult, low-level criminal offenders regarded by the court as being “likely to re-offend” or “at-risk” (including young adults).3 Admission to these courts is restricted to nonviolent and nonserious offenders (Williamson 2016). In young adult courts, there is an understanding that offenders are not fully culpable or accountable because of multiple issues that are believed to underlie their illegal behavior and poor choices, such as substance abuse, mental illness, and/or persistent homelessness. These courts differentiate themselves from other kinds of problem-solving courts in that they attempt to service the often multiple and co-occurring problems presented by their clients. According to a Los Angeles Superior Court judge who supervises this court, “instead of having one stand-alone drug court . . . [the] court will be able to service cases of . . . homeless veterans or mentally ill substance abusers, for example” (Williamson 2016). This is similar to what already occurs in “dual-diagnosis” courts in several California counties (e.g., Santa Barbara County), where clients/offenders have co-occurring mental health and substance abuse problems and/or other co-occurring issues. In 2004, the first young adult court was established in Omaha, Nebraska (Hayek 2016). Thereafter, additional young adult courts opened, including in San Francisco, California, during 2015 (Hayek 2016). Young adult court

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is a hybrid of the juvenile court/juvenile justice system and the adult criminal court/criminal justice system (Requarth 2017). It merges the conventional legal construction of adults as rational, responsible, and accountable agents with that of “wayward” youth and children, who are regarded as not completely accountable or responsible and in need of proper care, socializing influence, and rehabilitation (Feld 1999; Shelden 2001). Young adult court arose in the broader context of developments in neuroscience and its insights about human brain development. Neuroscience research findings of important developmental brain differences between young people and adults were brought successfully into court on behalf of youthful offenders in several important US Supreme Court cases involving juvenile sentencing and punishment. Then San Francisco district attorney George Gascon (currently the Los Angeles district attorney) developed the concept of this new court and contends “that neurological immaturity may contribute to criminal behavior and that adult sentences constitute cruel and unusual punishment . . . and undermine the possibility of rehabilitation” (Requarth 2017). Studies show that 84 percent of young adults released from prison “will be re-arrested within five years and few with felony convictions will be able to find jobs. Most of these offenders also face considerable economic and racial barriers” (Requarth 2017). Defendants in young adult court are those determined by the judge to be high-risk and high-need offenders from backgrounds that include poverty or homelessness (Requarth 2017). Misdemeanor and felony defendants are eligible, except those with cases involving drunk driving, gang allegations, hate crimes, domestic violence, elder abuse, or crimes against children, as well as cases involving guns or potential sex offender registration (Hayek 2016, p. 25). Mental health theories of deviance have been incorporated into the social control philosophy of young adult court, and related intervention strategies include clinical case management; individual, group, and family counseling; drug monitoring and referrals for substance abuse treatment; housing; and parenting, academic, and vocational support. Through linkages to community-based services, participants can engage in a therapeutic process to learn new life skills, reduce drug and/or alcohol abuse, and promote physical, mental, and emotional well-being (Hayek 2016, p. 25). The court considers the circumstances and the “neurological immaturity” of eighteen- to twenty-four-yearolds, including developmental differences in juvenile brains and adult brains, and incorporates arguments about the mitigation of criminal responsibility and potential harshness of punishment as applied to juveniles (Requarth 2017; and see our chapter on sex offenders for a related discussion of harshness in the sanctioning of juvenile offenders). Young adults age eighteen to twenty-four years old comprise roughly 10 percent of the US population, but they account for 28 percent of all arrests, a rate higher than any other age group (Requarth 2017). Supporters

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of young adult court argue that the fact that young adult brains have not fully matured diminishes their criminal culpability and justifies sentencing that is less punitive and more rehabilitative (Requarth 2017). The research of Laurence Steinberg, a psychologist at Temple University, offers support for this new understanding and its use in problem-solving court. Steinberg administered psychological tests to young adults to determine what their “cognitive capacity” and “psychosocial maturity” were and found that psychosocial maturity (as measured by impulsivity, risk perception, thrill-seeking, and resistance to peer influence) “did not begin until age 18, gathering momentum through the early 20s” (Requarth 2017). The staff in young adult court are trained by a clinical psychologist in these neuroscience insights and attempt to apply these scientific findings to interrupt the developing pattern of criminal conduct and prevent future (and possibly lifetime) involvement of the young adult clients with the criminal justice system. As of 2016, the National Institute of Justice identified six young adult courts operating in the United States, and a pilot program of five young adult courts was set to begin in England and Wales (Requarth 2017).

Veterans Treatment Court One of the newest and highly distinctive kinds of problem-solving court is veterans treatment court. The first veterans court opened in early 2008 in Buffalo, New York (Russell 2009). Orange County and Santa Clara County in California quickly followed, establishing veterans courts in November 2008. Veterans treatment court is modeled on the principles of drug courts but is designed to serve veterans who become enmeshed in the criminal justice system. The clientele in the court suffer similar military- and combat-related physical and mental health problems, such as post-traumatic stress disorder, traumatic brain injury, substance abuse, and other psychological disorders resulting from combat and military service. The goal of veterans court is to restore the mental and physical health of veterans while protecting public safety. Stacy Burns conducted an ethnographic study examining a variant of veterans court, combat veterans court, in which all clients have served in combat (Burns 2018). California Penal Code § 1170.9 states that a veteran in criminal court may be placed in community treatment, instead of jail or prison, “for a period not to exceed that which the defendant would have served in state prison or county jail.” Community placement requires that they suffer from “post-traumatic stress disorder, substance abuse, or psychological problems, or substance abuse problems stemming from service in the U.S. military” and they allege they committed the offense as a result of these problems. Burns’s study examined the daily interactions in combat veterans court and found that the clients were perceived as victim/offenders who have paid a high price to protect us all and whose combat service directly related to their criminal offending. This perception substantially altered the moral calculus in the court in ways that completely rewrote the familiar

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terms of criminal accountability. The research found that the court’s operations moved social control work away from the abstinence-or-punishment strategy of drug courts (and most other problem-solving courts) and toward a treatment and accountability approach that was unique to criminal justice– involved combat veterans (Burns 2018).

Integration of Problem-Solving into Mainstream Court Functioning

The first court officially designated as a “mental health court” opened in Broward County, Florida, in 1997 (Heward 2007). As with other problemsolving courts, offenders with a mental health problem could be diverted from the conventional criminal court to a court specializing in that person’s specific type of problem, with a goal of providing alternatives to incarceration for mentally ill people who commit crimes. Approximately twenty years later, California extended the concept of mental health courts from a specialized, alternative type of problem-solving court to a policy applicable to all superior courts in California. In 2018, California Penal Code, § 1001.36, was revised to allow judges to divert any mentally ill person charged with a misdemeanor or felony from the criminal justice system. This development reflects the expansion of problem-solving principles and practices to ordinary criminal courts. Thus, mentally ill persons in California no longer need to be put in a mental health court to be diverted from criminal court and into treatment. According to Jeffrey Aaron, it is arguable that in California, “all of our courts are now Mental Health Courts” (Aaron 2018). California offenders are eligible for diversion from criminal court provided that they meet certain conditions: that they have a mental disorder listed in the current edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (except pedophilia, antisocial personality, and borderline personality disorders); the disorder was significant in the crime’s commission; a “qualified mental health expert” confirms a recent diagnosis and finds that the defendant’s symptoms “would respond to mental health treatment”; and “the defendant agrees to comply with treatment” (California Penal Code, § 1001.36; and see Aaron 2018). The criminal court also has discretion not to divert an offender if the individual presents “an unreasonable risk of danger to public safety” (California Penal Code, § 1001.36). Treatment under this policy is limited to two years in duration and can be inpatient and/or outpatient. After notice and a hearing, the court can modify treatment, reinstate criminal proceedings, or order proceedings for a conservatorship if the court finds that the person has committed certain crimes or engaged in criminal behavior that renders him or her “unsuitable” for continued diversion (compare Burns and Peyrot 2003 on defendants found “unsuitable” for drug court). At the end of the diversionary period, the court

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must dismiss the criminal charges if it finds that the defendant has demonstrated “substantial” (not necessarily complete) compliance with the requirements of diversion and has avoided significant law violations “unrelated to defendant’s mental health condition” (California Penal Code, §§ 1000.35–1000.36). It remains to be seen whether this development will be adopted in other states and/or in the federal criminal justice system as part of the national criminal justice reform movement. The level of adoption and diffusion likely will depend on how this experiment works in California. Efforts to bring substance abuse and mental health treatment into problemsolving courts are proceeding with varying success, including support from some advocates to expand these courts and resistance from others. In California, the massive expansion of court-supervised drug treatment did not solve problems of the huge number of marijuana arrests, the influx of court cases, or the mass incarceration of low-level, nonviolent offenders. Cutbacks in government budgets in the wake of the Great Recession of 2008– 2009 hit courts hard, and many jurisdictions cut funding for judges and court staff (e.g., public defenders, prosecutors, and other criminal justice officials), making progress in the problem-solving court movement more difficult and “more aspirational than real” (Roemer 2014). As a result, there have been efforts by problem-solving court proponents to support and expand the activities of problem-solving courts through private fundraising and other initiatives. Veterans courts are unique among problem-solving courts in terms of funding because the Department of Veterans Affairs provides the vast majority of the court’s treatment services. While many California legislators accept or favor problem-solving courts, their willingness to provide funding for these courts is increasingly tied to greater legislative control of their budgets and enhanced accountability of the judicial branch regarding how the funds are spent (Roemer 2014). The development of problem-solving courts is one example of movement from “tough-on-crime” strategies focused on heavy enforcement and harsh punishment, to a “more pragmatic tone” (Boldt 2014b). The problem-solving court approach combines accountability and enforcement with treatment and prevention or deterrence. However, as Richard Boldt (1998) cautions, merging therapeutic and punitive aims within a single institutional structure may have unanticipated consequences. Boldt persuasively argues that in such a hybrid system, procedural safeguards are reduced and judges have broad discretion in the sanctioning and sentencing decisions. By mixing therapeutic and punitive aims, undertakings like drug courts (and other problem-solving courts) “often seek to accomplish incompatible goals” (Boldt 1998) and tend to become debased into punitive practices (Boldt 1998; compare Goffman 1961 and Kesey 1962 on a similar tendency in mental health institutions).

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Problem-solving courts of a growing variety and number have been established to address what are perceived to be the individual problems of client/defendants (e.g., substance abuse and addiction, mental illness, homelessness, etc.) and to implement individualized solutions to these problems “toward a more effective outcome than the costly revolving door” approach (Boldt 2014b, quoting Judge Judith Kaye). This individualized approach to problem-solving focuses on the responsibility and accountability of the particular offender, with one person handled at a time. The courts’ target for intervention and remedy is the substance abuse and addiction, homelessness, mental illness, combat-related trauma, and related conditions of the individual client/defendant. In drug court, for example, while the client may have a substance abuse problem, court personnel regard the client as still able to make morally consequential choices and decisions, either to comply with or violate program rules and treatment obligations. As a result, the court’s reasoning centers on assessing the individual’s rehabilitation progression (or regression) and compliance with program requirements and expectations. A negative consequence of locating the source of social problems within the individual offender is that problem-solving courts do not focus on the structural roots of these persistent societal and personal problems that contribute to the use and sale of illegal substances and often give rise to criminal justice involvement. These are not the kind of conditions that problem-solving courts are equipped to handle but instead call for more structural and large-scale social change. The alternative, as Richard Boldt notes, “sees drug use as a public not an individual problem and focuses on prevention and larger structural change as well as treatment” (Boldt 1998, quoting Ryan 1998). We have identified several complementary strategies for achieving this aim through social control contraction and de-escalation, including decriminalizing some drugs (e.g., marijuana), reducing criminal penalties for drug offenses, and using alternative criminal justice strategies (see Chapters 5, 6, 8, and 10). Another negative consequence of problem-solving courts is that they bring more people into the net of social control because the interventions they provide are perceived to be less harsh and more beneficial (or at least benign) than conventional criminal justice dispositions and punishments, resulting in the expansion of the criminal justice domain. As Gross (2010) suggests, “well-meaning police and prosecutors now believe there to be something worthwhile that can happen to offenders once they are in the system (i.e., rehabilitative treatment instead of prison).” Thus, the more benign-sounding the remedy is, the more willing police, court officials, and the public are to decide that this benefit should be extended to additional people. However, the net effect may be convicting more people and placing them under surveillance in deeper ways and/or for longer periods of time. In the end, we may be subjecting low-level offenders (who otherwise would have pled guilty and been out of jail in a matter of days or weeks) to social

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control for years rather than months, weeks, or days (Boldt 2010). In summary, while problem-solving courts and other rehabilitation-oriented strategies may be a major improvement over a traditional punishment-as-a-goalin-itself strategy, they do not justify the continuation, let alone expansion, of social control efforts that are unjustified otherwise. 1. Although there is variability in the methodology of these quantitative studies, evaluation research often lacks long-term follow-up (Boldt 2010). 2. Los Angeles recently created a specialty court to handle cases of potential sexually violent predators (see Chapter 7). However, this court is not really a therapeutic problem-solving court, but more of an expedited calendar court. This court attempts to reduce the commonly substantial delays in reaching a decision as to whether to certify an offender as a “sexually violent predator” appropriate for indefinite civil commitment or instead to free the person after the completion of their initial sentence (Williamson 2018). 3. On the containment of “sexually violent predators” found likely to re-offend, see Chapter 7 on sex offenders.

Notes

Table 9.1 Stage

Overview of Development and Diffusion of Problem-Solving Courts

Policy implementation Policy implementation Policy implementation Policy reform

Year

1989 N/A 1991 1997

2000

Policy reform

2004

Policy reform

2011

Policy reform

2018

Policy reform

Legislation/Action

2008

Function of Action

First drug court opens in Miami, Florida N/A Second drug court opens in Oakland, California N/A First mental health court opens in Broward County, Florida Proposition 36, the California extends the availability Substance Abuse and of drug treatment to virtually Crime Prevention Act all first- or second-time, nonviolent drug use offenders, instead of incarceration N/A First young adult court opens in Omaha, Nebraska N/A First veterans treatment court opens in Buffalo, New York Proposition 47, the California reclassifies certain Criminal Sentences drug crimes from felonies to and Misdemeanor misdemeanors Penalties Initiative California Penal Code, Judges are allowed to divert any §1001.36 mentally ill offender from the criminal justice system

10 Reforming Marijuana Prohibition

stance use and abuse generally (excluding alcohol), and marijuana specifically, was straightforward during the first two-thirds of the twentieth century (Peyrot 1984). During this historical period, substance abuse was criminalized at the federal and state levels, social control was expanded to include substances such as marijuana, and punishments escalated. Drug criminalization and enforcement and escalation were driven by prejudice, fear, and hostility toward Black, brown, and Asian minority groups who were identified as “dangerous” abusers of illicit drugs.1 (This was in opposition to how Whites, who were users of patent medicines that contained the same substances, were treated and is a contrast still seen currently in the focus on marijuana use by minorities versus on the “opioid crisis” among White users.) During the 1960s and 1970s the pattern of drug use changed with increasing numbers of White middle-class youth who used so-called soft drugs like marijuana being arrested and charged with felony drug possession and use. At that time, the 1970 Comprehensive Drug Abuse Prevention and Control Act (commonly known as the Controlled Substances Act, Pub. L. No. 91-513, 84 Stat. 1236) established marijuana as a dangerous drug. However, it also eliminated mandatory federal prison sentences for marijuana possession,2 which allowed state and local governments to institute “diversion” (“probation before judgment”) programs that enabled middle-class youth to avoid incarceration. Under the Controlled Substances Act (CSA), controlled substances were classified into one of five schedules, depending on medical use and the potential for dependence. The law assigned marijuana a Schedule 1 classification—the same as heroin and LSD (lysergic acid diethylamide,

Development of the institutional system for social control of sub-

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aka “acid”)—which declared that it had a high potential for abuse and no legitimate medicinal use. It also severely limited academic and medical research on potential uses of marijuana. With passage of the CSA, the social control of marijuana use/abuse simultaneously (and substantially) intensified in two opposite directions— increasing treatment and therapeutic jurisprudence (see Chapter 9), while also increasing criminal justice punishment of illegal drug use/abuse—that is, the “war on drugs.” Arrests for marijuana offenses increased from less than 50,000 in 1965 to more than 400,000 in 1975 (National Organization for Reform of Marijuana Laws 2012). Marijuana arrests continued to rise with the war on drugs, peaking at almost 800,000 marijuana possession arrests in 2007, and then declining year by year, dropping roughly 25 percent by 2015 from its peak in 2007 (Ingraham 2016a). In 2018, 40 percent of drug arrests in the United States were for marijuana offenses, mainly possession (Gramlich 2020a). As noted by Gardner (2021), “one in five people currently incarcerated in the U.S. are locked up for a drug offense, while over 750,000 people or 25% of all people under community supervision . . . are on probation or parole for a drug law violation” and thousands of people are returned to prison for a drug-related violation of the conditions of supervised release or parole. This two-pronged approach resulted in a two-track criminal justice system, with minorities funneled into the prison pipeline while Whites received less punitive sanctions. Mass incarceration was disproportionately imposed on minorities (see our chapters on mass incarceration and racial bias and White privilege in sentencing). While Whites and Blacks have roughly equal rates of marijuana use, Black people (especially young Black males) are currently 3.64 times more likely to be arrested for marijuana possession than are Whites (Angell 2020). People of color are more likely to be stopped, searched, arrested, convicted, and harshly punished for marijuana offenses (Golub, Johnson, and Dunlop 2007), and for drug law violations generally (Davis 2017, pp. xiv–xvii). This massive criminalization of persons of color, especially Blacks, for marijuana-related crimes constitutes a system of racial control based in drug control. The plan of this chapter is to provide an overview of the way regulation and control of marijuana possession, use, distribution, and sales have changed over the past fifty years, representing the gradual repeal of marijuana prohibition. (See Table 10.1 at the end of the chapter.) We also describe the apparent or potential consequences of these institutional changes, such as reductions in rates of marijuana use and juvenile marijuana arrests, student drug-related expulsions, DUI and drug-related hospitalizations and overdose deaths, as well as decreases in law enforcement costs and increases in jobs and tax revenue. Special attention is devoted to analysis of the creation of an alternative regulatory system for legal adult recreational cannabis

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use in California to replace that of the criminal justice system. This system is based on earlier state regulatory systems and represents the most integrated and robust non–criminal justice marijuana regulatory system to date with safeguards for traffic safety, public health, and minors. We also address the conflict between state and federal marijuana regulatory systems as more states repeal marijuana prohibition and how federal criminal justice law and policies may affect what happens in the near future in states that have (or will have) recreational and/or medicinal cannabis. Federal and state criminal justice legislation and policies regarding marijuana have fluctuated widely over the past hundred years. At the federal level, social control policy on marijuana has moved from limited interest (when marijuana was not seen as a major social problem), to intolerant (during criminal justice expansion/escalation), to conditionally tolerant (therapeutic jurisprudence for advantaged but not disadvantaged populations), and now to unpredictable (intermittent attempts to coerce states to prosecute and punish). Meanwhile, there has been wide variation at the state level; some states have maintained strict criminalization, while other states have reformed laws and policies, often taking a stepwise approach in formulating and implementing regulatory regimes (e.g., legalization after a period of decriminalization or medicalization). Marijuana regulation is a rapidly evolving area of criminal justice policy and practice. Reform of marijuana control and regulatory systems can take several forms. The least radical change is to maintain a criminal justice approach but de-escalate criminal penalties for marijuana possession and/or sales, by either changing sentencing guidelines or changing the classification of an offense from a felony to a misdemeanor. Other more significant reforms remove an offense from the criminal justice system, in part or whole. These include decriminalization, in which criminal sanctions are replaced by civil sanctions, generally similar to traffic citations involving small to modest fines. With this strategy, citations for possession or use do not generate criminal records, but distribution or sale of marijuana may remain criminalized. Another strategy is medicalization, establishing cannabis as a medication that can be recommended legally by licensed health-care providers (but cannot be prescribed because it still is illegal under federal law) and can be legally purchased and consumed by consumers who have a legitimate medical recommendation. With this approach, possession and use of marijuana without a recommendation may remain a criminal offense (or a civil offense). The most major reform is legalization, which removes the social control of marijuana completely from the domain of criminal justice, placing it instead under the auspices of another agency (e.g., consumer

Background

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affairs or public health) and regulating and taxing it in a manner similar to alcohol or tobacco. Legalization within a state often follows earlier, less substantial reforms, as public support for marijuana reform increases and policymakers develop confidence in their ability to craft effective regulatory systems. Nationwide, there are now historically high rates of support for marijuana legalization in the United States, with 64 percent of Americans in favor of legalization, including 51 percent of Republicans who tend to have a more conservative viewpoint (Quinnipiac University 2017). Oregon was the first state to decriminalize possession of marijuana in 1973, and as of July 2021, twenty-six states and the District of Columbia had decriminalized it, generally making it a civil offense similar to a traffic citation (DISA 2020). In 1996, California became the first state to allow medicinal cannabis. (In this chapter, we use marijuana to refer to the plant substance, and cannabis to refer to marijuana that is approved by state law for medicinal or recreational use, unless we are quoting a source.) By July 2021, a total of thirty-five states and the District of Columbia had laws permitting medicinal cannabis use (excluding six states that permit cannabidiol [CBD] oil only) (DISA 2020; Lopez 2020). In 2012, Colorado and Washington became the first states to legalize recreational use of cannabis, and by July 2021, the District of Columbia and nineteen states had laws permitting recreational cannabis use, thirteen of the first fifteen states by ballot initiative (Lopez 2020). In alphabetical order they are the following states: Alaska, Arizona, California, Colorado, Connecticut, District of Columbia, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, South Dakota, Vermont, Virginia, and Washington (DISA 2020; Lopez 2020). As of July 2021, forty jurisdictions (thirty-nine states and the District of Columbia) with a combined population of approximately 278 million, representing 86.5 percent of the US population, have partially or completely repealed marijuana prohibition (with some jurisdictions having more than one type of repeal). Twenty jurisdictions with approximately 145 million residents, representing over 45 percent of the US population, have approved adult recreational cannabis use, which is more than the number of jurisdictions (eleven) and residents (approximately 43 million) that still live under marijuana prohibition.3 California was a first mover or catalyst in the state-by-state rollback of marijuana prohibition. In 1996 California became the first state in the nation to allow the medicinal use of marijuana by passing the voter-initiative Proposition 215, the Compassionate Use Act, which remains in effect today. In essence, the law allowed patients who qualified with certain medical

California as a Catalyst in Reforming US Marijuana Law

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conditions (e.g., HIV and AIDS infection) to use cannabis to treat those conditions, as long as they had a doctor’s recommendation.4 The law had no restriction on the amount recommended (Miller and Bricken 2020), though patients can be arrested if they cultivate or possess amounts that police deem excessive. Senate Bill 420 (2004) loosely authorized the sale, production, and distribution of medicinal cannabis by “patient collectives.” Although Proposition 215 decriminalized medicinal cannabis for adults in California, it was not until 2015 that the state finally enacted regulations to govern the cultivation, sale, and distribution of medicinal cannabis with the passage of the Medical Marijuana Regulation and Safety Act (MMRSA). MMRSA was a comprehensive law and the most significant marijuana-related legislation in the state since the 1996 legalization of marijuana for medicinal use (Miller and Bricken 2020). MMRSA created the first regulatory system in California related to medicinal cannabis and codified the system of “patient collectives” that allowed patients to grow marijuana for each other and develop networks of caregivers to enable access to medicinal cannabis (Miller and Bricken 2020). Notably, the law left intact the rights of patients and caregivers under Proposition 215 and allowed the state to tax cannabis for the first time. In sum, the law set up a functioning medicinal cannabis industry that was subject to strict regulation (Miller and Bricken 2020). MMRSA was based on three bills (Assembly Bill 243, Assembly Bill 266, and Senate Bill 643), each of which addressed different aspects of licensing and regulating commercial medicinal cannabis cultivation, manufacturing, distribution, transportation, sales, and testing. Assembly Bill 243 required various state agencies to provide regulations or standards related to medicinal marijuana cultivation. The bill also required various state agencies to take specific actions to mitigate the impact that marijuana cultivation may have on the environment and imposed certain fines and civil penalties for specified violations of MMRSA. Assembly Bill 266 established a new Bureau of Medical Marijuana Regulation under the California Department of Consumer Affairs. The bureau operates a comprehensive internet system to keep track of licensees and report the movement of commercial cannabis and cannabis products. Senate Bill 643 set forth standards for physicians who recommend medicinal cannabis and required the Medical Board of California to prioritize its investigative and prosecutorial resources to identify and discipline physicians and surgeons who repeatedly recommend excessive cannabis to patients for medicinal purposes, or who repeatedly recommend cannabis to patients for medicinal purposes without conducting a “good faith” examination. After MMRSA was enacted, several smaller bills were passed to amend or add content to the law, and in 2016 MMRSA was officially renamed the Medical Cannabis Regulation and Safety Act (MCRSA), replacing the prior MMRSA medicinal marijuana regulatory law.

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In 2016 the Public Policy Institute of California (PPIC) recommended that California start with a tightly regulated market and, if appropriate, loosen the restrictions as it learns from its experience and the experience of other states. The PPIC report recommended that a “tight, single ‘seed to sale’ market will make marijuana laws easier to enforce and reduce diversion of it to other states and [to] underage users,” two key policy concerns (Murphy and Carnevale 2016, p. 4). Proposition 64, the 2016 Adult Use of Marijuana (AUMA) ballot initiative, largely followed the guidelines suggested by PPIC and the California Blue Ribbon Commission on Marijuana Policy, which spent years studying the latest science related to marijuana and incorporated the lessons learned from other states that had recently liberalized their marijuana laws. The commission benefited from reviewing the already-existing legalization and medicinal cannabis models in Alaska, Colorado, Oregon, and Washington (Murphy and Carnevale 2016). Colorado and Washington had legalized recreational use and instituted robust regulatory frameworks in 2012 and thus were the states with the longest regulatory history to provide guidance for drafting the California regulations. When AUMA was passed, there were two parallel licensing systems in the state: one track for medicinal cannabis and another track for adult-use cannabis (Miller and Bricken 2020). The immediate challenge was to establish an integrated licensing, taxation, and regulatory framework for the cultivation, manufacturing, transportation, distribution, and sale of medicinal and recreational cannabis in California. In 2017, California state lawmakers passed a budget trailer bill (Senate Bill 94) that effectively repealed MCRSA and integrated the regulation of medicinal and adult-use cannabis, resulting in the passage in 2017 of the Medicinal and Adult Use Cannabis Regulation and Safety Act (MAUCRSA) to regulate both types of cannabis products. The Bureau of Medical Marijuana Regulation was renamed the Bureau of Cannabis Control and began to institute licensing, product testing, and tracking through every facet of the cannabis production and distribution chain, from seed to final product (Murphy and Carnevale 2016, pp. 7–8). With the passage of MAUCRSA in 2017 (effective January 1, 2018), California created a uniform licensing regime and regulatory system for both medicinal and adult-use cannabis. In so doing, the state transitioned from what was essentially an unregulated market for medicinal cannabis (until 2015) to a highly regulated, seed-to-sale control system for both medicinal and adult-use cannabis. Until 2015, the lack of regulation of the California medicinal cannabis market was sometimes referred to as the “wild west” (Kaver 2017). The new law specified that the regulations for the commercial cannabis market were to be phased in over 2018 and estab-

Developing and Implementing a Robust Regulatory System

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lished a “track-and-trace” database system that tracks the movement of cannabis and cannabis products throughout the supply chain. MAUCRSA accorded licensing and regulatory authority to three state agencies, none of which is in the criminal justice system. The Bureau of Cannabis Control (a division of the Department of Consumer Affairs) was assigned responsibility for regulating cannabis distribution, testing, and retail businesses. The Department of Food and Agriculture was assigned responsibility for regulating cannabis cultivation and the manufacture of cannabis products. CalCannabis, housed within the Department of Food and Agriculture, licenses marijuana cultivators, operates a system to track cannabis from farm to dispensary, and evaluates its environmental impacts. The Office of Medical Cannabis Regulation is housed within the Department of Public Health and licenses companies that manufacture cannabis products, like edibles. The legal landscape of medicinal and adult-use cannabis in California continues to evolve as the Bureau of Cannabis Control issues regulations interpreting the MAUCRSA and AUMA statutory language, as the commercial marijuana industry develops its own standards, as state lawmakers pass further legislation in the area, and as cities and counties throughout the state implement various local regulations. Licenses and permits are required before an individual or company may engage in any kind of commercial cannabis business activity, and those who seek a license must comply with the strict requirements of MAUCRSA. The penalty for sale or possession with intent to sell cannabis without a license is six months in jail and/or a $500 fine. State licensing authorities began issuing licenses on January 1, 2018. One must be a California resident to obtain a license, and priority is given to currently active businesses. Both a local permit and a state license are required. Getting the required licenses involves a two-step process: (1) a local city or county permit is needed in order to (2) apply for and obtain a state license. Each of California’s 58 counties and 482 municipalities is taking a distinct approach to regulating cannabis businesses, and local governments are authorized to either defer to the state or create their own rules for banning or licensing and for zoning. The comprehensive rules and regulations of MAUCRSA are designed to achieve a number of safeguards: (1) keeping cannabis products out of the hands of children, (2) preventing impaired driving, and (3) protecting consumers and the public (McNew 2016). The methods for achieving these safeguards are described below. A key concern reflected in the new law is to keep cannabis and cannabis products out of the hands of children. Sale of cannabis to minors carries a potential sentence of three to seven years in prison, and decoys can be used

Safeguarding Minors

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to identify law violators. Marijuana can be sold only in cannabis-only stores that are accessible only by adults (ages twenty-one years or older) and are located over 600 feet away from schools. Labeling, packaging, and advertising are restricted and cannot be directed to minors; more generally they cannot be designed to be “attractive to children” (defined as people under the age of twenty-one). A potential problem with this aspect of the law is the subjectivity of determining what might be attractive to children. Cannabis can and has been added to a wide variety of foods and other products, including many sweets, such as cookies, brownies, hard candies, gummies, and chocolates. These sweets often resemble regular food products in appearance and taste. Indeed, it is likely that the goal of many edible cannabis manufacturers is to make tasty products that are like the products found at a local bakery, and to disguise the taste of cannabis oil. The packaging of cannabis products must also be child-resistant and tamper-proof and cannot resemble traditional food packages. Under the regulations, cannabis products cannot be described as candy and cannot be shaped like a human, animal, insect, or fruit. In addition, edible cannabis products cannot be infused with nicotine or alcohol and cannot include caffeine. The Children’s On-line Privacy Protection Act (15 U.S.C. 6501–6505) offers some guidance about what might make labeling or packaging child-friendly, including the use of bright colors and cartoon characters. Labeling must include a warning about the amount of tetrahydrocannabinol (THC; the active ingredient in cannabis). The package cannot contain more than 100 mg of THC per package, and a single serving cannot contain more than 10 mg of THC (Malek, Conley, and Berrin 2017). California Assembly Bill 175, enacted as California Business and Professions Code, section 26122 (2017), requires manufacturers of edible cannabis products to submit their packaging and labels to the California Department of Public Health for review to determine whether they are in compliance with the labeling and packaging provisions of the law. Some believe that the transition from selling marijuana illegally to making it medically available and now recreationally available in California will further normalize marijuana use among youth. Rates of use by youth vary widely in different states across the country, so a simple comparison of states’ current youth use rates by legal status is not a valid source of evidence on this issue. However, two studies analyzed youth use rates before and after implementation of medicalization and legalization policies and compared those to changes in states that have maintained marijuana prohibition. Both studies analyzed data from the Youth Risk Behavior Surveys, one for more than 850,000 youth over the period of 1999–2015 (Coley et al. 2019) and the other for 1.4 million youth over 1993–2017 (Anderson et al. 2019). Neither study found an increase in number of current users or frequency of use following medicalization, decriminalization,

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or legalization. The studies found a minimal effect or small reduction in number of users after medicalization, with the effect increasing over time. Legalizing recreational cannabis resulted in reductions in number of current users (8 percent) and frequent users (9 percent) of marijuana.5 Youth who violate the new cannabis adult-use law are treated differently than adults; they are not punished with criminal incarceration or fines but instead ordered to attend drug education and counseling and/or complete community service. Once they reach age eighteen, marijuana offenses can be cleared from their record retroactively through a process by which applicants petition the court to reduce or remove such convictions from their record. The California recreational cannabis use law explicitly forbids driving under the influence (DUI) of cannabis or cannabis products and also prohibits carrying cannabis or cannabis products in the driver’s compartment. Legalization of cannabis thus expands the tasks of law enforcement related to drivers who operate motor vehicles under the influence of cannabis. Regarding concerns about roadway safety, drivers can show elevated THC levels without signs of impaired driving, and THC levels per se are uncertain to establish driver impairment (Ramaekers et al. 2009). Although there is a strong interest in creating legal limits such as those for alcohol, there are important practical difficulties in testing for “drugged driving” compared to determining driving under the influence of alcohol. The alcohol breathalyzer for drunk driving is accurate and can be safely administered on the roadside, but drawing blood to test for THC is more complicated and requires medical personnel and adherence to a chain of custody procedures. Research on lab results from drivers arrested for impaired driving underscores the challenges of identifying and prosecuting marijuana-impaired drivers. For example, a driver’s active THC level may drop below the legal threshold during the time required to assess the driver and obtain a warrant to administer a blood test, which sometimes takes hours. Also, marijuana affects individual people differently, and researchers disagree about what is a safe level of blood THC and note that the causal link between THC blood level and impairment has not been established as it has been for blood alcohol (Murphy and Carnevale 2016, p. 18, citing Armentano 2013). Thus, developing fair and consistent guidelines for determining marijuana impairment is problematic.6 American Automobile Association Foundation researchers have concluded that, unlike blood alcohol tests that can be used to reliably identify drunk drivers, there is currently no scientific way to assess impairment due to marijuana based on blood test results. Marijuana per se limits are arbitrary, raising concerns that some impaired motorists might go free, while

Safeguarding Vehicular Travel

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Reducing Social Control

other drivers could be wrongly convicted. The foundation suggests a twostep process of enforcement that requires a positive test for recent marijuana use, along with behavioral and physiological evidence of impaired driving obtained by law enforcement (Automobile Association of America Foundation for Traffic Safety 2016). This departs from the practice in the states of Colorado and Washington, which have set marijuana limits that carry different weight in their courts (Lyons 2017). In Washington, 5 nanograms of THC per milliliter establishes impairment, while Colorado has a “permissible inference” law whereby a jury may, but need not, infer impairment if the driver exceeds that THC level. As of 2020, California has not set a per se limit for marijuana DUIs. California courts instead consider the “totality of the evidence” of DUI, including blood test results, the officer’s evaluation of the driver’s appearance and driving, field sobriety tests, and conclusions of a drug recognition evaluator (DRE)—that is, a specially trained California Highway Patrol officer who administers a set of tests to persons arrested on suspicion of DUI (Lyons 2017). Law enforcement officers train to become drug recognition experts as part of a program run by the International Association of Police Chiefs. (To date, there are an estimated 8,400 DREs nationwide, out of a total of about 1.1 million law enforcement officers.) Most law enforcement officials can conduct standard field sobriety tests and identify signs of alcohol impairment, but DREs also learn to recognize the objective signs of impairment from substances in seven categories of drugs not detectable by a breathalyzer, including marijuana. The tests DREs administer are far more in-depth than a standard field sobriety test and take about thirty minutes to an hour to conduct. These tests include measuring heart rate and blood pressure and evaluating reaction to light and tracking of objects. Many courts take the testimony by such experts as proof of impairment. However, some previous courts have questioned the scientific validity of such testing. For instance, in State of Maryland v. Charles David Brightful (2012), the court held that the drug recognition protocol “fails to produce an accurate and reliable determination of whether a suspect is impaired by drugs and by what specific drug he is impaired.” In response to the legalization of recreational marijuana in California, California Assembly Bill 6 passed and authorizes the California Highway Patrol to establish a taskforce to develop practices and test technologies to help officers spot drivers under the influence of drugs. But judges and lawyers doubt the saliva test’s ability to establish probable cause. Just as having alcohol in one’s system while driving is not illegal until the person reaches a .08 percent level, the mere presence of marijuana does not prove impairment, nor is there a firmly established “impairment threshold” (Williamson 2017b).7 Despite the concern about decreased vehicular travel safety, data obtained after marijuana legalization from Colorado and Washington, the states with the longest history of marijuana legalization, suggest no decline in roadway

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safety, with crash rates comparable to states without legal marijuana (Aydelotte et al. 2017). While some studies report a small increase in crash rate, others report inconsistent findings (Ramaekers et al. 2004), and Abrams (2017) reported a 33 percent decline of DUIs in Colorado after legalization. Nevertheless, additional research is needed to examine the potential relationship between marijuana ingestion, driving impairment, and crash rates. The risk management protocols adopted by the cannabis industry include a thorough licensing process, rigorous product testing, and advanced trackand-trace procedures. California product liability law holds product manufacturers liable for injuries caused by marketing an unreasonably dangerous product, with public policy strongly supporting adequate compensation for people who suffer compensable injuries and losses. Cannabis businesses are required to take measures to ensure that they are properly indemnified for the substantial legal risks they face, and liability insurance can be a useful tool for managing such risks. Although California’s cannabis regulations require all licensees to have liability insurance, to date state licensing authorities have not required that licensees purchase insurance that provides coverage for cannabis-related risks. Many typical liability policies are ineffective for this purpose. For example, standard commercial general liability (CGL) coverage is inadequate to protect a cannabis business from product liability risks because standard CGL policies contain exclusions for injuries arising out of the use of a Schedule 1 substance, or other substances that represent a “health hazard” (Stewart and Mootz 2018). Moreover, because the Schedule 1 status of marijuana precludes research on its effects, there are few long-term studies to demonstrate the safety of cannabis use. In particular, CGL coverage may be inadequate to indemnify the risks associated with the production, distribution, and sale of an ingestible product that has psychoactive effects. One key area of concern involves potential lawsuits arising from cannabis-infused edible products. For example, consumers often do not understand that when cannabis is eaten, it frequently takes much longer to have an intoxicating effect, sometimes causing them to consume too much. The industry is responding to this problem by adopting strict dosage limits and understandable packaging, and embracing low-dose units of edible cannabis products. Other legal liability risks arise from the widespread use of pesticides, contamination by fungus or mold, breach of warranty, misrepresentation, deceptive practices and labeling claims, failure-to-warn grievances, and consumer complaints that allege bodily injury resulting from intoxication (e.g., DUI). Broad pollution insurance policy exclusions may limit coverage of some cannabis risks. There is little precedent to date for holding cannabis businesses subject to product liability because only a few cannabis-related

Safeguarding Consumers and the Public

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product liability lawsuits have been brought to court. However, notably, the state of Colorado mandated sixty-six cannabis-related product recalls for the period of September 2015 through April 2017 (Stewart and Mootz 2018). With the adult-use law in California, there are a range of labeling and marketing requirements and issues that are likely to result in product liability litigation. Even if an insurance policy expressly provides suitable coverage for cannabis-related risks, the courts will not enforce the insurance if they deem it to be in violation of public policy. Because cannabis is subject to significant federal criminal penalties, it is possible that federal courts may hold that a policy providing coverage for cannabis is unenforceable because it is against public policy. Thus, states may need to ensure that cannabis businesses are operating with appropriate insurance in effect. Due to the profitability of commercial cannabis businesses, licensed business owners in California are required to take certain security measures, including complying with Bureau of Cannabis Control regulations, which require employee badges, designated limited-access areas, and security personnel, and which mandate providing twenty-four-hour video surveillance and alarm systems. In the future, additional security measures may be required, such as the use of armored cars to reduce the risk of transporting cash to local and state agencies (Rahmani 2017). Such legal measures are likely to be just the first step in developing a multifaceted security plan for the highly profitable and now legal cannabis industry. Today, marijuana legalization is in effect in nineteen states and the District of Columbia, and these states are generating substantial sales and tax revenues and adopting measures to ensure public safety and promote the public good by implementing robust regulatory systems. The new cannabis regulatory systems ensure that medicinal and recreational cannabis are tested, labeled, and safe for human consumption. Labor laws for cannabis business employees also must be adhered to, and cultivation must comply with regulations to protect the environment and prevent pollution and the use of dangerous pesticides. AUMA prohibits unwanted public exposure, including smoking or vaping in an unlicensed public site ($100 citation) and smoking or vaping in places where tobacco is banned ($250 citation). There is some concern about an increased burden of policing both the legal and illegal markets in enforcing the new rules (Rahmani 2017; Nicchitta 2017). However, in mitigating the adverse impacts of the war on drugs, marijuana arrests are down in states where marijuana is legal (e.g., ACLU of Washington State 2014), saving law enforcement, courts, and correctional systems millions of dollars and preserving scarce criminal justice resources (Egan and Miron 2006). Arrests for marijuana possession in Cal-

Consequences of Marijuana Reforms

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195

ifornia dropped by more than 80 percent from 2010 to 2011, the year after passage of California Senate Bill 1449 (2010), which made unauthorized possession of less than an ounce of cannabis akin to a traffic violation (Murphy and Carnevale 2016). And the number of police traffic stops, which are disproportionately targeted at people of color, has dropped by over half in Colorado, Vermont, and Washington, with police making more arrests for violent and property crime (Jaeger 2019). Revenues from taxation and licensing of the California cannabis business are expected to boom. Even before legalization, California was already the world’s largest legal market for marijuana. Sales for cannabis in California in 2015 reached $2.7 billion dollars and accounted for almost half of all the legal marijuana sales in the United States. The AUMA is a major tax and economic growth initiative (Todd 2016). Under the new system of taxation, consumers of adult-use cannabis pay a 15 percent excise tax, and cultivators pay a tax on all cannabis that is harvested and goes to the commercial market. The 2017 California Budget Act predicted that legal cannabis will produce approximately $684 million in excise taxes in 2018 and $1 billion annually by 2021 (Rahmani 2017). However, reports indicate that California’s cannabis revenue is less than previously estimated because the illegal market still thrives in the state (Chappell 2019). Marijuana legalization also has resulted in large-scale job creation, including over 18,000 new cannabis industry jobs in 2015 in Colorado (Ingraham 2016b). In California, a portion of the new cannabis tax revenues will be used to mitigate the harms of unequal drug law enforcement and to invest in low-income communities of color where people have been most adversely affected by aggressive policing and racially disparate drug arrests (California Revenue and Tax Code, § 34019 (d)). In November 2017, the Los Angeles County Board of Supervisors expressed concern that health equity be taken into account in licensing decisions to “mitigate negative community health impacts,” noting that a map of Los Angeles showed over 1,500 cannabis dispensaries tended to “cluster in lower-income and minority communities” (Nicchitta 2017; also see Dineen 2017, citing similar findings for San Francisco). Impacts on public health include (1) reduction of overdose deaths in medicinal cannabis states (Bachhuber et al. 2014; Livingston et al. 2017); (2) reduction of hospitalization rates for opioid abuse or dependence in marijuana legalization states (Shi 2017); and (3) reduction of the percentage of students expelled for drug offenses and the number of juveniles arrested for marijuana offenses in Colorado since recreational cannabis was approved (Healy 2019). Even if the commercial cannabis industry can effectively address public safety concerns, increase state revenue and employment, allow more effective

Interplay of Federal and State Marijuana Regulatory Systems

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Reducing Social Control

policing, and improve public health, the federal government still may prevent states from implementing reforms because the federal Drug Enforcement Administration (DEA) actively enforces federal laws against marijuana. Federal law prohibits marijuana-related businesses; possession, cultivation, and production of marijuana-infused products; and the distribution of marijuana and products derived from it. The US CSA still defines marijuana (cannabis and THC) as a Schedule 1 narcotic—that is, like heroin and LSD, it is defined as a drug that is highly dangerous and that has no currently accepted medical use, a high potential for abuse, and no capability of being tested safely, even if used under strict medical supervision. The fact that marijuana has for many decades been a Schedule 1 drug creates much confusion for law enforcement personnel because of the conflict between state and federal law (Miller and Bricken 2020). In July 2017, several medicinal cannabis users filed a lawsuit in the Southern District of New York (Washington v. Sessions, 17 Civ. 5625) seeking an injunction to prevent the federal government from enforcing federal drug laws as they pertain to cannabis, as well as a declaratory judgment that the Schedule 1 classification of marijuana violates the “protections guaranteed by the 1st amendment and the fundamental right to travel” (Bricken 2017a). The plaintiffs in the case included Super Bowl champion Marvin Washington, the parent of an underage medicinal cannabis patient and a US Army veteran. In February 2018, the district court granted the defendants’ motion to dismiss the complaint, ruling that the plaintiffs had not first exhausted the available congressional and administrative channels in pursuing the rescheduling of marijuana (Washington v. Sessions, 17 Civ. 5625 (AKH) (S.D.N.Y. February 26, 2018)). However, plaintiffs appealed this decision (Washington v. Barr, No. 18-859 (2d Cir. 2019)), and in May 2019, the federal Court of Appeals for the Second Circuit, expressing concern over the DEA’s history of dilatory proceedings, reinstated the case over the Schedule 1 status of marijuana and directed the DEA to “promptly” reevaluate the illegality and classification of marijuana. The attorney for the plaintiffs tweeted it was the first time in history that a complaint challenging the constitutionality of the Controlled Substances Act had survived dismissal (Hasse 2019). The case could be headed to the US Supreme Court and has the potential to resolve the legal uncertainty concerning marijuana regulation and legalize it under federal law. In recent years, the federal DOJ and attorney general have provided guidance to law enforcement personnel and prosecutors related to marijuana control through various internal memos, but these are not issued for public distribution. Although the guidance memoranda are not legally binding and cannot be relied upon by defendants in criminal prosecutions or by courts of law, they have led to numerous regulatory systems being set up at the state level that remain in effect today, and taken collectively, the DOJ memos clarify the evolution of federal policy on marijuana control over the years (Miller and Bricken 2020).

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In 2009, DOJ issued the first guidance memorandum on medicinal cannabis, stating that if cannabis operators and enterprises were in clear compliance with their state’s regulatory regimes, the federal government would not treat them as a law enforcement priority (Miller and Bricken 2020). (Indeed, the federal government has not targeted medicinal cannabis patients for prosecution, and there is a strong argument for states’ rights in this area.) Following the 2009 guidance, many cannabis operators, entrepreneurs, and their lawyers identified this as an appropriate time to expand, resulting in much cannabis industry growth. However, at the time many states did not exercise the rigorous control or government oversight over their cannabis industry that was a precondition of federal nonenforcement (Miller and Bricken 2020). In August 2013, the DOJ issued an enforcement memo authored by Deputy Attorney General James Cole (the Cole Memo). The Cole Memo marked a turning point in terms of federal government priorities in marijuana control and was widely believed to have ended the federal crackdown on state law–compliant medicinal cannabis operators in California and elsewhere during 2009–2012 (Bricken 2017b). In addition, the Cole Memo was released at a time when Colorado and Washington had already legalized cannabis and were implementing their regulatory programs (Miller and Bricken 2020). The memo stated that the federal government would not be using its resources to prosecute Colorado and/or Washington to overturn their marijuana laws, or to prosecute operators compliant with state law. The message from the federal government to the states was that the DOJ would allow states to address cannabis issues, so long as the state’s cannabis regulatory program was rigorous enough, and the state would cede control to the CSA when required (Miller and Bricken 2020). The DOJ stated that its “hands-off” approach “rests on the DOJ expectation that state and local governments . . . will implement strong and effective regulatory and enforcement systems that will address the threat these state laws could pose to public safety, public health and other law enforcement interests” (Bricken 2018). If this proved not to be the case, the federal government would prioritize its own enforcement activity. The Cole Memo also specified eight law enforcement priorities in adopting a federal hands-off approach to marijuana control (Miller and Bricken 2020). For example, under the Obama administration’s DOJ policy, state-authorized cannabis activity would be allowed to continue, as long as states did not threaten federal priorities: keeping cannabis away from children; preventing cannabis revenues from going to criminal gangs, cartels, and criminal enterprises; avoiding diversion of cannabis to other states where it is illegal (or across international borders); and preventing drugged driving and other adverse public health consequences (Bricken 2017b).8 California’s rights with regard to marijuana regulation were upheld by the US Supreme Court in 1997 in the case of Printz v. U.S., 521 U.S. 898

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(1997), which ruled that the federal government cannot require state or local authorities to help federal officials enact or enforce federal marijuana laws. In addition, the federal Rohrabacher-Farr Amendment (originally enacted December 2014 and currently known as the Rohrabacher-Blumenauer Amendment) precludes the use of any federal funds to prevent states from implementing state laws authorizing the licensing, use, distribution, possession, or cultivation of medicinal cannabis. This appropriations bill essentially stopped the federal government from interfering with state medicinal cannabis, but it did not protect against federal interference with state legalization of recreational cannabis. The impact of the bill was clarified in August 2016 by the Ninth US Circuit Court of Appeals in U.S. v. McIntosh, 833 F.3d 1163 (9th Cir.), in which the federal appeals court prohibited the federal government from prosecuting conduct permitted by the state’s medicinal cannabis law. In McIntosh, the court reversed the lower courts’ denial of injunctions brought by ten consolidated criminal cases against individuals for possession and cultivation of medicinal cannabis. The appeals court issued an injunction specifying that, although the Rohrabacher-Farr Amendment prohibited federal funds from being used for cannabis prosecutions, it did not provide immunity from prosecution. However, the court also stated that appellants were entitled to evidentiary hearings to determine whether they were in fact acting in strict compliance with state cannabis laws. After the defendants’ July 2017 evidentiary hearing, the judge ruled they were in strict compliance with California’s medicinal cannabis laws and granted the defense motion to enjoin the federal prosecution. In his ruling, the judge specified that the matter was stayed “until and unless a future appropriations bill permits the government to proceed. If such a bill is enacted, the government may notify the court and move for the stay to be lifted.” Prior to being appointed attorney general during the Trump administration, Jeff Sessions had been an outspoken opponent of marijuana, comparing its use to heroin and associating it with violent crime. Shortly after taking office, he appointed a task force to examine federal marijuana restrictions, enforcement, and policy, signaling his intention to aggressively attack marijuana use, even in states that allow it. This task force was directed to look into any links between marijuana and violent crime, and federal prosecutors were instructed to charge the most serious offense available and seek the longest possible sentence. This tough-on-crime approach reversed the Obama-era DOJ policy in low-level drug cases that tasked federal prosecutors to use their discretion to avoid seeking mandatory minimum sentences, thereby limiting mass incarceration.

Federal Policy Retrenchment

Reforming Marijuana Prohibition

199

Just three days after adult-use sales commenced in California, on January 4, 2018, the Trump administration DOJ shifted its policy on marijuana enforcement, and Attorney General Sessions issued a memo that rescinded all prior federal guidance related to states that have cannabis licensing regimes. The New York Times and CNN reported that Sessions rescinded the Obama-era policy of noninterference in “marijuana-friendly states,” as articulated in the Cole Memo (Jarrett 2018). The Sessions memo also reiterated that Congress had pronounced marijuana a dangerous controlled substance and that federal prosecutors should act in accordance with the priorities and resources within their district. The memo did away with the enforcement policies of the Obama administration, leaving completely unclear and uncertain how individual US attorneys would enforce federal marijuana control laws in their individual districts (Miller and Bricken 2020). Those in the cannabis industry agreed that state law–compliant cannabis operators could no longer rely on the hands-off policy and priorities of the Cole Memo. Many commentators had anticipated this drug policy shift (Gurman 2017), which left much uncertainty about federal enforcement in states with medicinal and/or adult recreational use marijuana laws (Maclachlan 2017a). However, rescission of the Obama administration’s policy easing enforcement of federal drug laws and deferring to states on marijuana regulation is proving politically unpopular because it comes in the face of strong national support of decriminalization. During the Trump administration, the federal government did not file suit to enjoin or preempt states from implementing cannabis legalization and/or medicalization and stopped short of instructing federal prosecutors to take down the cannabis industry, instead leaving it up to individual US attorneys to enforce the law as they saw fit.9 Thus, federal enforcement priorities appear to have returned to the principles of the 2013 Cole Memo, but this is no longer guaranteed as federal prosecutors have full prosecutorial discretion and are completely within the bounds of federal law to disregard state law and prosecute accordingly. Given the contradiction between state and federal law, people who sell or purchase cannabis (e.g., at a dispensary) can be arrested for a federal drug law violation. Indeed, the paperwork needed to show regulatory compliance in order to operate a cannabis business in California is itself evidence of a federal drug crime. Thus, many cannabis operators, investors, and entrepreneurs are generating evidence of criminal acts against themselves with every transaction and taking the risk that the federal government could prosecute them (Miller and Bricken 2020). However, even after an arrest, it may be difficult to convict users, operators, and entrepreneurs due to jury nullification (i.e., the jury returns a not guilty verdict despite its belief that the defendant is guilty of the violation charged, in effect nullifying the law) when such violations are tried by a local jury of their peers, the majority of whom voted in favor of recreational and/or medicinal marijuana.

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Reducing Social Control

Critics of the Trump-era policy encourage the federal government to focus federal drug law enforcement efforts on combating the opioid crisis (given that under the CSA drugs like fentanyl and oxycodone are treated as less dangerous than marijuana), prosecuting large-scale criminal drug organizations and violence, and protecting children (Hasse 2019). More broadly, they urge the federal government to adopt a public health and harm reduction approach to drug-related problems and not to focus on minor marijuana offenses as the basis for harassing, arresting, and mass incarcerating citizens (disproportionately people of color). Based on the precedent of U.S. v. McIntosh and the Rohrabacher-Farr Amendment, California medicinal cannabis operators received a favorable decision from the federal courts in the August 2017 case of U.S. v. Pisarski, 274 F. Supp. 3d 1032. In this case, the judge issued a temporary stay of the federal criminal prosecution of two medicinal cannabis growers from Humboldt County who were found to be acting in compliance with state medicinal cannabis laws. The ruling “appears to provide solid grounds to enjoin similar federal prosecution of medicinal marijuana offenses by defendants who can establish, by a preponderance of the evidence, that they have strictly complied with laws in states that have robust medical cannabis regulations” (Clark 2017; also see Williamson 2017d).10 In 2020, the federal Court of Appeals for the Ninth Circuit halted the sentencing of the two medicinal cannabis growers in Pisarski who had pled guilty to federal marijuana charges, but proved that they were state-law compliant with California medicinal marijuana law at the time (U.S. v. Pisarski 2020 DJDAR 7138 (9th Cir. 2020)). Asset seizure and forfeiture is a powerful strategy for law enforcement to impose punishment for alleged drug-related activity. It requires neither conviction nor even a criminal charge of the person whose property is being taken by the federal government. Rather, if in the judgment of the seizing police agency the property to be seized was used in a crime or constitutes the proceeds of a crime, it may be seized under the authority of the DOJ. That is, the federal government can raid and take any and all assets that are claimed to be associated with the sale, consumption, or growth of recreational or medicinal cannabis (Berenson 2017). Through the Equitable Sharing Program, the DOJ usually returns about 80 percent of the forfeited cash and property to the local police or sheriff’s department that made the seizure, thereby providing an incentive for using asset seizure and forfeiture as a source of additional funds to support local law enforcement agencies. In July 2017, then attorney general Jeff Sessions announced that DOJ “will continue to encourage civil asset forfeiture whenever appropriate in order to hit organized crime in the wallet” (Smith 2017). However, only

Federal Subsidization of Aggressive State and Local Policing

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201

rarely does a state or local seizure in fact confiscate property from drug cartels or organized crime. Instead, often the people adversely affected are motorists, especially out-of-state racial minorities driving on interstate highways with a large amount of currency (Ingraham 2017b). The policy did provide more scrutiny for small cash seizures between $5,000 and $10,000 by requiring “some level of criminality” or the express agreement of the local US Attorney’s Office (Ingraham 2017b; Horowitz 2017). Responding to criticisms of the civil asset forfeiture program, the former DOJ policy under Trump required that law enforcement agencies that sought to participate in the Equitable Sharing Program provide their officers enhanced training on asset forfeiture laws. However, critics believe that these asset forfeiture training programs did not teach officers to respect citizens’ Fourth Amendment rights against unreasonable search and seizure. Instead, they often instructed officers how to better get away with aggressive highway stops based on pretext, illegal searches, and seizures of cash without probable cause. The widespread use of seizures allowed local law enforcement agencies to make an end-run around more restrictive state forfeiture laws, particularly in states that barred local law enforcement agencies and district attorneys’ offices from retaining the money or assets forfeited. Lawmakers from both political parties support extensive reform of civil forfeiture law, or even its complete abolishment. The Fifth Amendment Integrity Restoration Act (US Senate Bill 2644) was introduced in 2014 to “protect Americans’ Fifth Amendment rights from being infringed upon by ensuring that government agencies no longer profit from taking the property of U.S. citizens without due process” (Paul 2019). The bill was reintroduced by US Senator Rand Paul in 2019 as Senate Bill 642 and companion legislation was introduced in the US House of Representatives (H.R. 1555). This bipartisan bill is intended to reform decades-old forfeiture laws that create incentives for law enforcement to conduct civil forfeiture and seize property, cash, and other assets from citizens who have not been convicted of any crime—that is, to seize it on the mere suspicion that the property may have been involved in a crime. Reform of civil seizure and forfeiture policy would not only reduce injustice and racial inequity, it would reduce the use of threat in suppressing marijuana reform. In the original formulation of an institutional constructionism model (Peyrot 1984), we did not attempt to project the “final” outcome in the development of the social control of substance abuse. At that time, we regarded this development in terms of a battle for problem ownership (Gusfield 1975) between the criminal justice and mental health systems. Because of institutional accretion, the mental health system depended on the coercive

Conclusion and Implications

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power of the criminal justice system to incentivize drug users to obtain treatment (Peyrot 1985). We did not consider what would be required to achieve legalization of drugs (specifically marijuana), or what system of regulation might replace the criminal justice system. Indeed, the only US exemplar for such a change in social control was the 1933 repeal of alcohol prohibition at the federal level fourteen years after its passage, which allowed states and localities to implement their own regulatory systems. That seemed unlikely for marijuana prohibition, which had already lasted for almost forty years at the time the current federal marijuana control system was established in 1970 by the Controlled Substances Act. And, fifty years after the current federal marijuana control system was established, there has been little change in that system. Repeal of federal marijuana prohibition likely would trigger further regulatory reforms in additional jurisdictions. Evidence regarding the consequences of marijuana prohibition reform demonstrates strong safeguards, beneficial public health outcomes, reduced criminal justice involvement, decreased governmental costs and increased tax revenues, and increased job creation. At a deeper level, what has happened in the fifty years since the passage of the Controlled Substances Act is unprecedented in US history— states have passed legislation that countermands federal law, and the federal government has not quashed this usurpation.11 States have developed their own marijuana regulatory systems, and the federal government has done little to actively interfere in this process. Despite these trends, there is much uncertainty and unpredictability surrounding cannabis businesses and users. At any time, the federal government could shift its enforcement policies and priorities, as is evident in the evolution of the DOJ enforcement guidance memos (Miller and Bricken 2020). California undoubtedly will be important in the continuing state-bystate reform of cannabis regulation and circumvention (or repeal) of federal marijuana prohibition.12 The implementation of the new regulatory framework in California will provide further experience relating to cannabis businesses at both the state and local level.13 Notwithstanding reform from the federal government, punishments for drug law violations can be harsh, depending on the jurisdiction where the industry operates. In California, thousands of people have been operating marijuana businesses for years, and most of these businesses have been operating illegally. Small-scale operators who cannot afford to pay the relatively steep taxes and fees required to comply with the new state and local regulations risk arrest and might not survive after legalization: “If you’re a small pot grower and you don’t have the money and resources to turn into a bigger player . . . then unfortunately you’re not going to be around” (Murphy 2017). Thus, an unanticipated consequence of marijuana legalization is the relatively low number of growers in full compliance with the new reg-

Reforming Marijuana Prohibition

203

ulatory system because of the increased costs and the falling prices for marijuana (McPhate 2017). For example, Mike McPhate notes that as of 2017 “only around 1/10 of growers have applied to county authorities for permits— there is the question of price. . . . There is so much wholesale pot being grown in California that the wholesale price has been falling sharply in recent years and any pot sold on the legal market in January [2018] will have the added costs of taxes, fees and mandatory testing for pesticides and other chemicals.” Black market operations have flourished and local law enforcement will have continued difficulties enforcing regulations of the legalized system, especially in parts of Northern California “where pot is central to the local economy [and] you would be turning these law enforcement agencies against their own communities” (McPhate 2017). While some participants in the cannabis supply chain may not be charged as drug traffickers, they may face secondary criminal liability as aiders and abettors, by financing cannabis enterprises, and/or for conspiracy to violate the CSA, perhaps by taking overt steps to assist cannabis operations by offering guidance (Miller and Bricken 2020). Opponents of marijuana’s Schedule 1 classification contend that it does have medical uses and can be used safely under medical supervision, and there is ongoing legislation and support for reclassifying marijuana. In July 2019, Congressman Jerry Nadler and then senator Kamala Harris introduced into Congress H.R. 3884, the Marijuana Opportunity Reinvestment and Expungement Act. The bill would address the conflict between federal and state marijuana laws by descheduling marijuana under federal law to permit the states to establish their own marijuana policies without federal interference (Angell 2019b). As more and more states legalize marijuana, there is increasing momentum to decriminalize and legalize it at the federal level. There also has been forward movement in Congress toward shifting the federal approach to drugs. Representatives Bonnie Watson Coleman and Cori Bush announced in June 2021 that they would introduce a bill entitled the Drug Policy Reform Act “to fully decriminalize the possession of personal use quantities of controlled substances.” This bill would “shift the regulatory authority for the classification of drugs from the Drug Enforcement Agency to the Department of Health and Human Services” (Gardner 2021). In July 2021, Senate Majority Leader Chuck Schumer announced he would cosponsor a bill in the US Senate (along with Senators Ron Wyden and Cory Booker) to decriminalize and deschedule marijuana. The bill would create provisions for federal taxation and regulation of the substance (while not preventing states from implementing their own regulations). The bill also would reinvest in communities most adversely affected by the drug war and would expunge certain marijuana convictions. It remains to be seen whether this bill will be passed and enacted into law and whether states will be allowed to continue their process of experimenting with developing new

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marijuana regulatory systems without federal intervention. It also remains to be seen whether it will be possible to develop a regulatory system that brings most marijuana production and distribution into a system that ensures the safety of consumers and the public. As former police officer Kyle Kazan stated, “I’m not really shocked by anything that’s going on now. . . . I think we’re in like inning two of a nine-inning game” (Fertig 2019). 1. Racial, ethnic, and cultural prejudices have always played a big role in marijuana control (Hart and Ksir 2018). During the Great Depression, there was much hostility toward poor immigrants thought to be taking the jobs of other people. Because of racism, the Mexican people and especially poor Mexican people who had come to the United States to work in agriculture were linked to marijuana, although many other people of all races and classes were using marijuana then (just like today). Fear about the link of marijuana to crime and violence was directed toward Mexican Americans and marijuana itself. There is also evidence that racism against Blacks (who were associated with use of marijuana, including through jazz and blues music, and thought to be dangerous and criminal) fueled the passage of state marijuana control laws in the 1930s. 2. Federal penalties for simple possession of marijuana (first offense) are jail time of up to one year and a $1,000 fine; penalties for possession with intent to distribute carry a mandatory minimum sentence of five years in prison. 3. These data were calculated from two sources: state regulations from https:// disa.com/map-of-marijuana-legality-by-state (DISA 2020), and state/national populations as of June 2021 from https://www.infoplease.com/us/states/state-population -by-rank (Infoplease 2021). The jurisdictions and the population numbers and percentages do not include those that have only repealed prohibition of CBD, which is still prohibited by federal legislation even though it does not contain THC, the active ingredient in marijuana. 4. Each state has its own definition of the kinds of health-care providers able to recommend medicinal cannabis to their patients. In California, for example, only physicians are authorized to recommend the medicinal use of cannabis to patients. 5. Anderson and colleagues (2019) speculate that the reduction in use they found may be because youth find it more difficult to obtain marijuana because illegal drug dealers are being replaced by licensed dispensaries that require proof of age. 6. The California Assembly recently passed a bill to create a “drugged driving” task force to study the matter. The bill, which has not yet been enacted into law, mandates study of ways to detect drugged driving and requires the California Highway Patrol to use technologies to identify drivers under the influence of drugs. The Center for Medicinal Cannabis at University of California San Diego is conducting trials to measure marijuana’s impact on driving and is working to develop new field sobriety tests designed to detect marijuana impairment. Because marijuana is absorbed differently, it will take time, if ever, before there is a definitive per se limit akin to the .08 percent for alcohol (Williamson 2017a). 7. Much of what is written here about “drugged driving” can also be applied to “drugged working.” In medicinal and/or recreational cannabis states, many companies are de-emphasizing positive marijuana test results in employment actions or even discontinuing marijuana testing because cannabis use is not illegal and a positive test result does not indicate whether a person was impaired during work (Sanchez 2019).

Notes

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8. Recently, it has been claimed that marijuana from states where it is legal has been transported to states where it is not (Fertig 2019). The federal government has primary responsibility for regulating interstate commerce, including interstate movement of marijuana, and Steven Hoffman of the Massachusetts Cannabis Commission noted that “I don’t think you can, at this point, regulate cannabis the same way you regulate alcohol because of the federal prohibition” (Fertig 2019). 9. In June 2019, the US House of Representatives passed the BlumenauerMcClintock-Norton funding amendment that would aid in reducing the nation’s war against drug users and protect states’ adult use of cannabis programs from federal intervention. The amendment would prohibit federal interference in states with legalized cannabis by banning the DOJ from using its funds to interfere in such states and expressly preventing the DOJ from interfering with implementation of state laws that authorize the use, distribution, possession, or cultivation of cannabis for adult use (Angell 2019a). This amendment still awaits a vote by the US Senate. 10. Note that the 2017 and 2020 court rulings in the Pisarski case stand in contrast to earlier court decisions. For example, in U.S. v. Oakland Buyers Collective, 532 U.S. 483 (2001), the court rejected the claim that medical need was a defense for violating CSA by selling marijuana, regardless of its status under state law. In Gonzales v. Raich, 545 U.S. 1 (2005), the court ruled that an individual could not legally grow marijuana for medicinal use, regardless of its status under state law (Murphy and Carnevale 2016, p. 8). 11. This phenomenon has a “states’ rights” dimension that goes beyond traditional differences between federal and state criminal law, in which the states may implement stricter law than the federal government. Much like the state secession movement leading up to the Civil War, states have claimed that their lawmaking power supersedes that of the federal government. Repeal of federal marijuana prohibition would resolve this contradiction and, like the repeal of federal alcohol prohibition, allow states to establish their own regulatory systems, including criminal justice and/or civil strategies. 12. For example, given federal prohibition and the fact that banks must comply with federal law, banks are reluctant to work openly with cannabis businesses. However, California Senate Bill 51 (2018, revised 2019) would permit the creation of state-chartered banks or credit unions to offer limited services to licensed cannabis businesses (Katchko 2019). 13. It also will be necessary for state and local jurisdictions to work out relationships between different regulatory systems. For example, some states have reciprocity regarding medicinal cannabis, while others do not, whereas prescriptions for most medications are accepted by other states. And it is not clear whether adult recreational cannabis legally obtained in one state is legal in another state that has legal adult recreational cannabis, independent of the federal prohibition of interstate transport of marijuana.

Table 10.1 Stage

Overview of Social Control Development for Marijuana Year

Legislation/Action

Function of Action

Policy formation; 1973 Decriminalization Bill Oregon becomes the first state social control to decriminalize possession contraction of small amounts of marijuana

continues

206 Table 10.1 Stage

Continued

Year

Legislation/Action

Policy formation; 1996 Proposition 215, social control the Compassionate contraction Use Act Social control contraction

2004

Social control escalation

2005

Policy 2009 formation and implementation; social control contraction

California becomes the first state to allow patients with certain qualifying medical conditions to use cannabis with a doctor’s recommendation California Senate Loosely authorizes sale, Bill 420 production, and distribution of medicinal cannabis by “patient collectives” (phased out by the Adult Use of Marijuana Act in 2018) Gonzales v. Raich US Supreme Court holds that even state-compliant operators and users of medicinal marijuana can be federally prosecuted for violating federal law Department of Justice US DOJ law enforcement (DOJ) Guidance guidance memo stating that Memo medicinal cannabis operators that are state law compliant will not be a federal enforcement priority California Senate Decriminalizes possession of Bill 1449 under an ounce of marijuana

Policy 2010 formation and implementation; social control contraction Policy 2012 Washington State formation and Initiative 502; implementation; Colorado social control Amendment 64 contraction Policy 2013 DOJ Guidance Memo formation and (Cole Memo) implementation; social control contraction Social control contraction

Function of Action

2014 Rohrabacher-Farr Amendment

Washington and Colorado become the first states to legalize recreational adult use of marijuana

DOJ states policy of noninvolvement with state marijuana regulatory systems for state law compliant users and operators; specifies eight law enforcement priorities, including keeping cannabis away from children Bars use of federal funds to prevent states from implementing medicinal cannabis laws continues

207 Table 10.1 Stage

Continued

Year

Legislation/Action

Function of Action

Policy 2015 California Medical Creates first regulatory system formation and Marijuana Regulation in California related to implementation; and Safty Act medicinal cannabis; allows social control (MMRSA) the state to tax medicinal implementation cannabis Policy 2016 Proposition 64, Adult California allows recreational formation and Use of Marijuana adult use of cannabis implementation; Act (effective social control January 1, 2018) contraction Social control 2017 U.S. v. Pisarski Federal court enjoins prosecution contraction for medicinal marijuana offenses of defendants in strict compliance with state medicinal cannabis regulations Policy 2017 Medicinal and Adult California integrates the parallel formation and Use Cannabis licensing and regulatory implementation; Regulation and systems for medicinal and social control Safety Act adult-use cannabis into a implementation (MAUCRSA) combined system to regulate both types of cannabis Policy 2018 DOJ Guidance Memo Trump administration’s US formation and (Sessions Memo) attorney general Jeff Sessions implementation; rescinds federal policy of nonsocial control involvement with state law expansion and compliant operators and escalation consumers in states with robust marijuana licensing and/or regulatory regimes Social control 2019 Washington v. Sessions US Court of Appeals reinstates contraction a case challenging the Schedule 1 status of marijuana and orders the Drug Enforcement Administration to promptly reevaluate the illegality and classification of marijuana Social control 2020 U.S. v. Pisarski Federal Court of Appeals halts contraction sentencing of defendants who had pled guilty to federal marijuana charges but proved they were compliant with California state medicinal cannabis law

11 Possible Futures of Social Control

tional constructionism (Peyrot 1984; Peyrot and Burns 2010, 2018) and applies it to a range of social problems that are undergoing major changes in social control within or related to the criminal justice system. Our work extends the social constructionist approach that culminated in the stage model of Spector and Kitsuse (1977), focusing not merely on how social problems are defined by the claims-making activities of stakeholders, but also on the creation and operation of social control structures and their developmental pathways, patterns, and processes. This theoretical approach analyzes the development, implementation, and transformation of social control institutions, recognizing that efforts to control social problems necessarily define the nature of those problems, and that the consequences of those remedial efforts alter the definitions of the problems (Emerson and Messinger 1977). Unlike previous models that postulate a mechanical progression through a fixed set of stages, our theoretical framework (1) identifies a set of stage transitions (increasing, legitimizing, decreasing) that generate change in social control institutions; (2) identifies the institutional dynamics (accretion and diffusion) that influence social control development; and (3) identifies stakeholder activities driving the development of social problem control institutions (e.g., public agitation, court cases and rulings, stakeholder economic and political interests, budgetary issues). The case studies considered here illustrate the institutional dynamics of accretion and diffusion. Although we often think of legislation as the landmark events in the construction of a social control institution, our analysis reveals that much of what legislation comes to institutionally is a function

This book updates and extends our theoretical approach to institu-

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of the court cases and rulings that interpret the law. These rulings may radically transform a law’s function—for example, from protecting female college students from sexual violence by males to protecting male students accused of perpetrating violence against female students, or by protecting police who perpetrate violence on citizens from the consequences of their actions. Yet through accretion, court rulings build upon existing legislation rather than legislating de novo. We also see many dimensions of diffusion between institutional sectors. Criminal justice elements have diffused into the educational system in terms of assessing and punishing sexual assault in higher education. Conversely, mental health strategies have diffused into criminal justice proceedings involving a plethora of special populations (e.g., drug courts and young adult courts), and motor vehicle safety regulations are being considered as a model for gun violence prevention. Thus, institutional intersectionality is likely to become an increasingly important topic in future research on the control of social problems. The work of this book has been to apply our institutional constructionism framework to several emerging controversies occurring in the field of social problems and social problem control in relation to the criminal justice system. Part 1 discussed three controversies within social control expansion: (1) policies regarding creation of two new categories of crime—hate crime and domestic terrorism, (2) emerging issues regarding efforts to implement prevention of gun violence, and (3) new strategies for regulating sexual assault in institutions of higher education. Part 2 addressed three controversies in terms of achieving equity in social control: racial bias and White privilege in (1) policing and (2) sentencing, and (3) stigmatization of sex offenders. Part 3 examined three major controversies regarding attempts to reduce and rethink social control in ways that are more effective, economically feasible, and humane than previous approaches: (1) decarceration, (2) problem-solving courts, and (3) selective decriminalization of marijuana. The goal of this concluding chapter is to identify larger themes (metathemes) that link the aforementioned developments and consider how these metathemes can inform efforts to identify possible future developments in the social control of social problems. Toward this end, we consider four metathemes reflected in the set of social problems we examined: (1) the conceptualization of key actors (citizens, government officials, legal actors, and corporations); (2) delegitimization and relegitimization of social control (public trust in social control institutions); (3) the role of the public in social control; and (4) the multilevel interplay of social policy changes. In closing, we offer some recommendations regarding future research based on institutional constructionism that are relevant not only to traditional studies of social control effectiveness, efficiency, and equity, but also to studies of the facts, circumstances, and contingencies that drive the development of social control institutions within criminal justice.

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We have focused on the social definition of individual-level actors— especially, the victims/victimizers and the (disproportionately) disadvantaged/ privileged. These definitions are fluid and may change over time as the result of disputes in which stakeholders advocate for changes that reflect their interests, beliefs, and philosophies. For example, sex offenders have been demonized as perpetrators of vile crimes who are not amenable to change during their lifetime, justifying extremes of coercion and punishment. However, this characterization has been disputed by reform advocates, who suggest that such treatment of these actors is unjustified because it is based on false assumptions about recidivism and rehabilitation and note that the existing extreme sanctions may inhibit rehabilitation. Indeed, it is now proposed that sex offenders are victimized by these sanctions. Moreover, it is recognized that often the perpetrators are themselves victims of sex offenses. Another example of the dynamics of this dispute is the evolving characterizations of Muslims. The emergence of Muslims as a perceived social problem targeted by social control is tied to the events of 9/11, when the perpetrators were identified as Middle Eastern and Muslim men. Subsequently, Muslims became targets of vigilante action (including mass shootings) and government intervention (including travel and immigration bans), in much the same way as other racial and ethnic minorities have been (i.e., Asians, Hispanics, and Blacks). In response to such actions, reform advocates have argued that Muslims are in need of equal protection under the law, which is an essential component of American democracy. The concepts of hate crime and domestic terrorism embody the philosophy that their victims need special protection to overcome the belief by some that such crimes are justified and to promote the recognition that many are victims of bias and terrorism, not perpetrators. Although our book did not present a case study on the LGBTQ+ population (because at present any controversy is more a matter of social justice than criminal justice), events in this arena closely parallel developments so far with these other controversies. The LGBTQ+ population has been demonized in the past, resulting in repressive government measures and vigilante action. Social policy changes have eliminated the definition of alternative forms of adult sexuality as subject to criminal justice sanction, and these policy changes facilitated a shift in the controversy, with LGBTQ+ populations recognized as crime victims rather than perpetrators. If the demonization and destigmatization of Muslims and/or sex offenders follow the pattern exhibited by LGBTQ+ populations, they too will be acknowledged as deserving of the rights (and responsibilities) accorded to those in democratic societies. Another target of social control through the criminal justice system is corporations as criminals (e.g., by manufacturing and selling products that

Conceptualization of Key Actors

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are dangerous or harmful). Recent US Supreme Court rulings have established a definition of corporations as akin to individuals in terms of having some of the same rights as citizens and residents (e.g., Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)). Yet, there has been little progress in basing criminal prosecutions on this definition. (How can one incarcerate or execute a corporation?) Nevertheless, there has been agitation to hold corporations and their officers, directors, and managing agents responsible for the harm that corporate entities cause. For example, efforts have been made to hold the pharmaceutical industry responsible for the opioid crisis and the gun industry responsible for gun violence. However, at present, these remedial actions have been overwhelmingly implemented through the tort (civil law) system, rather than the criminal justice system. It remains to be seen whether there will be greater effort to increase corporate responsibility in return for the increased rights and privileges corporations have been recently granted, and whether these actions might be implemented through the criminal justice system. For example, in October 2020 Purdue Pharma (the maker of the highly overprescribed addictive painkiller OxyContin) agreed to an $8 billion settlement that included a $3.54 billion criminal fine and a $2 billion criminal forfeiture, along with $2.8 billion in civil damages. The key to democratic governance is the legitimacy of the state, which entitles it to exercise coercion in seeking the best interests of the collectivity; illegitimate use of coercion is the trademark of nondemocratic states—that is, totalitarian regimes. This book considered the decline in public trust of social control institutions and officials and, more broadly, what such distrust suggests about the basis of institutional legitimacy in the United States today. This mistrust and loss of public legitimacy is a problem not just with the police; it is pervasive throughout the criminal justice system and extends into institutions of higher learning—for example, in the quasi-legal procedures used to investigate and discipline campus sexual assault. In the past few years, there also has been enhanced public scrutiny of and pushback against the criminal justice system, especially police, but including courts, jails and prisons, and monitoring and supervisory agencies. The perceived legitimacy of the police turns on the public’s belief that policing practices are being employed in a fair and legal way. It has long been recognized that there is racial bias and disparate treatment in policing, as demonstrated by the data reviewed in this book. However, the rash of highly visible police killings of Black citizens, especially young males, has made the public more aware of this inequity and has created storms of protest. Nonetheless, the officers involved in many of these on-

Loss of Social Control Legitimacy

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duty shootings and excessive use-of-force incidents often are not charged criminally or tried for their illegal use of force, and when police are charged, convictions for murder or manslaughter (until recently) have been rare. The public can promote a sense of legitimacy for police through civilian police commissions, in which community members serve as advisors and monitors of police departments to help them meet community standards and regain public trust when excessive force and/or other misconduct by police officers is alleged. In addition, there has been protest against unfairness and racial bias in sentencing, with some of the involved judges resigning in the wake of public outcry or being removed from office following a successful public recall campaign. Several of these cases involve lenient sentences for sexual assault by privileged White males. Ironically, there has been a simultaneous effort to assert the infringement of due process rights and protections for (mostly White) male college students accused of sexual assault. Indeed, the alleged perpetrators claim to be the victims of injustice who are entitled to the full range of legal procedures and defenses available to those accused in the criminal justice setting, even though the setting is an administrative disciplinary proceeding without the power to impose criminal sanctions. The pushback against attempts to protect female college students from sexual violence may delegitimize the process for evaluating whether students have violated IHE regulations and threatens a return to the era when women were traumatized and stigmatized for seeking justice. While many criminal justice reforms are efforts to restore the legitimacy of social control institutions, it is not enough to punish specific social control agents or revise social control work practices. Social control agents and agencies act within the framework of the larger institution and society, and their actions depend in significant ways on the sociocultural context in which they operate. In the presence of structural racism and implicit bias, elimination of “killer cops,” “bad judges,” and “brutal prison guards” will not resolve the problems with the criminal justice system. In fact, despite any good that might result, such actions could reduce the perceived need for more significant systemic reforms, such as removing problems from the criminal justice system (e.g., repealing marijuana prohibition or reorganizing police departments) or radically altering the justice system (e.g., setting up problem-solving courts). More must be done if dealing with specific instances of abuse is to be part of a larger effort to restore the legitimacy of social control within a just society. Some social control perspectives on the role of the public regard it primarily as a potential target of social control activity (e.g., a reservoir of criminals),

The Public as Legitimate Partners in Social Control

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with noninterference, cooperation, and support by other members of society as goals. Yet, our case studies demonstrate that the public is a key ingredient in the development and operation of an effective and just social control system. It is rare that public institutions, including social control institutions, take the initiative of engaging in significant reforms without public agitation for change; inertia is a feature of social as well as physical systems. The first major issue regarding public involvement is what is appropriate. Here we are not referring to what political position is taken by members of the public; in our work and that of kindred social scientists, we assume that there are disputes over what changes are needed and that the outcome of such disputes will become the next stage of development, which future public and political involvement will address. For example, there has been much public outrage regarding gun violence, particularly mass shootings (and especially the mass shootings at Marjory Stoneman Douglas High School in Parkland, Florida, and Sandy Hook Elementary School in Newtown, Connecticut). Although the majority of the public supports increased regulation of guns to prevent violence, gun industry supporters have been successful so far in circumventing the public will and may continue to do so. Similarly, there has been reform agitation regarding the government’s campaign to demonize Hispanic immigrants and incarcerate children apart from their families for extended periods by ending the Deferred Action for Childhood Arrivals program protecting nearly 650,000 undocumented immigrants who were brought to this county as children. Likewise, the massive protests of the police killing of an unarmed Black man (George Floyd) triggered a global social movement against racism and police brutality. It remains to be seen whether and how the public’s protest efforts will succeed in modifying (or dismantling) government policy and policing practices. However, some basic principles regarding appropriate public involvement can be articulated. One important distinction is that between (illegitimate) vigilante action and (legitimate) bystander intervention. When George Zimmerman killed Trayvon Martin after being warned not to interfere with law enforcement or when armed “border patrols” kidnap people they define as illegal immigrants, that is vigilante behavior—taking justice into one’s own hands—it is not legitimate partnering with social control agents. Examples of legitimate bystander intervention include students informing officials that they are aware of peers who are planning a mass shooting, travelers reporting suspicious packages left in airports, or observers preventing someone from sexually assaulting or killing a human being who is unconscious. Use or threat of lethal force is questionable in situations that do not represent “selfdefense” as legally defined. Even trained and deputized law enforcement personnel are not entitled to use lethal force based on suspicion that someone “might” commit or have committed a crime, except under extremely limited circumstances involving the immediate protection of life.

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As technology has become ubiquitous throughout society, the possibility of increased vigilante action has become more relevant. Public-access registries, like those for convicted sex offenders, allow the public to identify and locate persons who have been demonized and are thought by some to be appropriate targets of vigilante action, including intimidation and the use of sometimes deadly force. While destigmatization of demonized populations can ameliorate the potential negative consequences of public-access registries, it may take some time for this process to compensate for the short-term increase in public awareness of stigmatized populations. Legitimate active involvement in the prevention of specific instances of criminal behavior is part of the public’s partnership in social control, but the public’s more important role is as watchdogs. Citizen recordings and video footage of violent interactions between police and the public circulate on social media and conventional media outlets. The increased availability of recordings of these violent encounters also makes possible the reexamination of these records as evidence in internal investigations by police departments, in criminal and civil court trials, as well as in other legal proceedings (e.g., coroners’ inquests, etc.). While citizen recordings may decrease police legitimacy in the short run, in the long run these actions identify opportunities to implement reforms to raise public trust in the police. The increased availability and widespread use of cell-phone cameras has driven growth in public recording of potential police misconduct. This video footage has made police violence against Blacks visible and exposed the public to race-based policing and the experiences of victims in policecivilian encounters. In addition, police departments have increased their own use of recording technology for self-surveillance. The use of body cameras and dashboard cameras by on-duty police has been advocated and implemented in many cities as a reform measure and tool of greater transparency and accountability. Many practical and logistical issues still need to be resolved in order for this technology to achieve anywhere near its full potential. In the short run, self-recordings of police misconduct may decrease police legitimacy, but if such incidents are promptly reviewed and responded to by department supervisors and handled properly by prosecutors, courts, and juries, the public trust in police can be increased. While increased use of technology has the potential to enhance social control legitimacy, there are also potential concerns, especially with its use for electronic monitoring and surveillance of persons under probation or parole supervision. In principle, these technologies may decrease the level and adverse effects of incarceration. However, the reduction in personnel costs also permits an increase in the number of people that can be subjected to social control. Again, many practical and logistical issues must be resolved for this technology to be effective, but the more important issue for legitimacy is the degree to which this technology fosters the perception

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that social control has become omnipresent and oppressive. This concern extends to the use of police cameras to monitor public places, and law enforcement monitoring and surveillance of citizen technology (e.g., cell phones and personal computers). Case law and policing guidelines are being developed to balance public safety and order needs with individual freedoms and the rights of the public.

The Interplay of Federal and State or Local Governments in Social Control Change

A recurring theme throughout this book’s case studies is the interplay between levels of government in the formulation and implementation of social control policies. The dynamics of change in social control at the federal level differ substantially from that at the state and local levels. (Although there are differences between state and local levels, we discuss them together here; however, our case studies have focused on state and federal action without consistent attention to the interplay of state and local levels of change.) The obvious difference is the scope of application; federal action has implications for all jurisdictions. A less obvious, but still important, difference is the volatility of federal policy, especially through executive orders. A new presidential administration may rescind executive orders of the previous administration(s) and issue new executive orders that go in a completely different, and perhaps opposite, direction. Moreover, these directives can take effect immediately. Federal legislative action also contributes to change in social control, but this change is often slower. A major change in the legislative agenda generally takes longer because it may require multiple election cycles to produce a change in party control in both congressional bodies. In contrast to the potentially rapid and definitive change in social control at the federal level, change at the state and local level is incremental and cumulative. There are dozens of state and territorial governments and thousands of local governments. Each state creates its own social control institutions. Some states have larger populations than others—California has about one-tenth of the US population—but change at the state or local level consists of a number of discrete actions across jurisdictions, and so it takes dozens or perhaps hundreds of such actions before a policy covers even a majority of the national population. Beyond mandates that cover all jurisdictions, action at the federal level also can stimulate state or local change—for example, by providing funding incentives to support new policy initiatives, which is another way that federal action can produce rapid and widespread change in social control institutions. Alternatively, action at the federal level can retard state or local change in social control policy— for example, federal marijuana prohibition retards state-level legalization or

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decriminalization, and blanket federal protection of gun manufacturers and sellers retards state-level prevention of gun violence. Change at the state or local level also may exhibit contagion across jurisdictions, with each jurisdiction serving as a potential model for other jurisdictions. State and local jurisdictions serve as laboratories for identifying issues and testing strategies that other jurisdictions can use or avoid for resolving issues of policy formulation and implementation. Jurisdictions that are innovators or early adopters can have a greater role in stimulating action by other jurisdictions. That is one reason we have focused more attention on social control developments in California. California’s use of public ballot initiatives and willingness to engage in legislative action make it a forerunner of many social control changes. Thus, following developments in California’s criminal justice strategies provides insight into possible changes in other jurisdictions. Given these considerations, projecting changes in social control over the next few decades is difficult. The direction of federal policy is subject to major changes depending on political control of Congress and the presidency, and predicting elections is a matter of speculation subject to major surprises. Our substantive chapters have documented how the Trump presidency represented a radical shift in the direction of federal policy from the Obama Democrats’ progressive philosophy to a conservative Republican philosophy. With the shift to a new Democratic administration led by President Biden, the regulation and control of social problems is at another pivotal time of transition. Policy initiatives and proposed legislation advanced by the Biden administration may reflect many of the same goals as the Obama administration, but legislative initiatives may face congressional gridlock in a closely divided Congress. Moreover, the Biden administration risks having executive orders, federal legislation, and federal agency regulations challenged in court and overturned by conservative judges that were put on the federal bench and the US Supreme Court during the Trump administration. On the other hand, we hypothesize that changes at the state and local level are more predictable, although less wide-reaching. Thus, our projections are based on events happening in California, which we believe will not only have a direct effect on a major part of the national population, but will also stimulate other jurisdictions to follow. The major trends in the development of California’s social control institutions include the following: (1) reducing the level and scope of expenditure on social control (e.g., by legalizing recreational marijuana, reclassifying offenses, shortening sentences and supervision in the community, and shifting custody to the local level with community support); (2) comprehensive strategies for prevention of gun violence; (3) protection of vulnerable populations (e.g., poor, racial/ethnic minorities, women, and LGBTQ+); (4) increasing the role of the public (e.g., civilian

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police commissions); and (5) transforming the function and organization of the judicial system (e.g., by using problem-solving courts and reducing and reallocating police funding). These are the types of social control reforms we project to increase across state and local jurisdictions and perhaps percolate up to the federal level. If these trends reach the federal level, the rate of transformation should increase, but it is unlikely that an absence of federal participation will completely stall or reverse these trends. Institutional constructionism research necessarily examines the planning, implementation, and operation of social control systems. Traditional criminal justice research tends to focus on the outcomes of social control, comparing the efficacy of different strategies in controlling social problems (see more on this below). While some of this book has dealt with actual or potential efficacy in considering arguments for and against different control strategies, the topic uniquely relevant for our approach is the ongoing construction of social control institutions. We see an important role for the following three types of institutional constructionism research: (1) problem-specific case studies, (2) site-specific studies of social control practices, and (3) ecological analysis of social control jurisdictions. Problem-specific case studies, like those presented in this book, can identify processes, events, and patterns that can be compared to other case studies and be used to develop grounded theory (Glaser and Strauss 1967)—that is, to generalize the theoretical framework to have broader application. Studies of specific social control settings, like our ethnographic studies of drug courts (Burns and Peyrot 2003, 2008, 2010), can illuminate how the practical circumstances of social control work constrain the practices that enact the definitions of social problems contained in legislation, court decisions, executive orders, and so on. The rich traditions of both types of studies have established a foundation for future ambitious studies of the third type—ecological analysis of social control jurisdictions.1 Because criminal justice measures are embedded in the governments of local, state, and federal jurisdictions, these structures can be assessed objectively for every jurisdiction. Thus, the distribution (and change over time) of particular types of social control institutions can be measured, and there are sufficient units of analysis to conduct quantitative analyses of the effect of stakeholder actions and situational factors (e.g., media coverage, public agitation, stakeholder economic and political interests, budgetary issues, etc.) on the likelihood and timing of social control developments. We can study whether and how contagion or modeling affects social control development. (Do local and/or state governments learn from other jurisdictions, or are changes based only on the characteristics of each jurisdiction?) What are the

Future Research Directions

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(potentially reciprocal) effects of social control developments at one level (federal, state, local) on developments at another level? Are some states (e.g., California) generally at the forefront of all types of institutional changes (both increasing and decreasing punishment), or only certain types? As social scientists, we believe it is possible to develop a more efficient (lower cost), more effective (more positive and less negative effects), and more equitable (justice for all) criminal justice system. We undertook the writing of this book with that goal in mind. We hope that this book will contribute to the reenvisioning of and improvement in the country’s social control apparatus. We selected our case studies because they are the subject of controversies about what should be done and how to do it. Moreover, they deal with important issues that have implications for the health of our society, in terms of government legitimacy, the cost of its programs, and the welfare and safety of its people. Our approach has been to review the background of the controversies and the recently enacted or considered measures to address our current social problems. Where possible, we have evaluated the evidence for and against alternative strategies. Yet, we have found there is a lack of definitive research regarding proposed solutions. It is rare to have a well-designed experimental study (e.g., those involving random assignment of individuals to different programs) that allows strong conclusions about program consequences. Research comparing jurisdictions with and without a given program is of some value, but it is difficult to make valid comparisons. Of more value are so-called natural experiments in which it is possible to assess before-and-after data from multiple jurisdictions that do or do not implement a program with the goal of comparing changes in efficiency, effectiveness, and equity. In the current era of increased governmental and institutional responsibility, there are many evaluations of existing programs. However, these studies often are not designed to permit valid conclusions, especially ones that could be generalized to other jurisdictions or social problems. The major problem is not the methodological rigor of these studies, but the fact that the research findings often are not used in decisionmaking. Opinion masquerades as evidence and argument replaces analysis. Even more flagrant is the effort to suppress research that might contradict one’s opinions—for example, the federal bans on research regarding prevention of gun violence and potential legitimate medical uses of marijuana. We recommend that future research regarding social control, especially within the criminal justice system, should be conducted by impartial scientists, preferably with government funding, rather than by researchers with a

Conclusion and Implications

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political agenda supported by industries that stand to benefit from a particular set of findings (e.g., gun, private prison, and marijuana industries), or by organizations advocating for or against the industries in question. Such impartial research may not resolve the types of controversies examined here, but it will provide the foundation for an informed debate, which should improve the public’s trust in the decisions made. 1. In his book on national crises, Diamond (2019) provides an eloquent discussion of how case studies can be used to generate testable hypotheses to guide ecological analyses.

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Index

abstinence: drug court system, 173 abuse excuses, 115 accidental shootings, 41–42, 46 accountability: California judicial reforms, 153–154, 162–163; campus sexual misconduct, 65–66, 72; federal police deployment in Portland, 105–106(n5); police accountability, 83, 85, 87–89, 97–104, 217; problem-solving courts, 180–181; surveillance technology as police reform tool, 97–99; veterans treatment courts, 178–179; young adult courts, 176–177 accretion, institutional, 6, 201, 211–212 Adam Walsh Child Protection and Safety Act (2006), 127 Adult Use of Marijuana (AUMA) ballot initiative (California), 188, 194–195, 207(table) affirmative action programs, 118 affirmative consent standard, 70–72 affluenza teen, 114–115 African Americans. See Blacks; racial bias age: Romeo and Juliet laws for juvenile sex offenders, 138–140 alcohol use: breathalyzer for drunk driving, 191; characteristics of shooters, 56(n8); consent and sexual assault, 70; edible cannabis products, 190; Ethan Couch sentencing, 114114; gun regulation, 51; “justifiable” deaths, 99; sexual violence and standards of consent, 70–71;

similarities to marijuana regulation, 191– 192, 202, 204(6), 205(n8), 205(n11); young adult court processes, 177 Alexander, Michelle, 91 American Automobile Association Foundation, 191–192 American Civil Liberties Union (ACLU): bail system reform, 160; consequences of marijuana reforms, 194–195 American Law Institute, 71–72 America’s Most Wanted (television program), 127 Anderson, Zachery, 149–150 Anti-Defamation League, 29 Anti-Drug Abuse Acts (1986, 1988), 112, 121(table) antiproliferation policies, gun regulations as, 46 antislavery movement, 7–8 appropriateness in social control, 216 AR-15 assault rifle, 47–48 arrests. See also policing; policing, racial bias in: consequences of marijuana reforms, 194–195; criminalization of marijuana, 184; the emergence of drug courts, 170– 171; racial disparities, 110–111 Asian Americans, hate crimes against, 33, 36 assault weapons, 43–44, 47–48, 56(n9) asset seizure, 200–201 assisted outpatient commitment (AOC), 131–133, 137

251

252

Index

assisted outpatient treatment (AOT), 131– 133, 137 Audrie’s Law, 71 awareness state of social problem construction, 2

bail system: race and class bias, 112, 119; reforms, 159–160, 166(table) ballot initiatives, 16, 18(n3), 133, 174, 186, 188, 219 Baltimore, Maryland: consent decree, 107(table); drug court evaluation, 173– 174; police reorganization, 100–101; police shootings, 102–103 Baltimore Ravens, 104 Bellucci, Janice, 136 Benjamin, Brian, 34 Best, Carmen, 100 bias. See hate crimes; policing, racial bias in; racial bias; sentencing, racial bias in Biden, Joseph: addressing racial disparities in sentencing, 120–121; Covid-19 Hate Crimes Act, 33; criminal justice reforms in policing, 103; criminal justice reforms in sentencing and incarceration, 163; federal, state, and local roles in social control change, 219; gun violence regulation, 59(table); reducing gun violence, 53–54, 59(table); reviewing Title IX rules on sexual misconduct, 76 Black Lives Matter social movement, 12, 87–88, 92, 116 black market marijuana, 15 Blacks. See also policing, racial bias in; racial bias; sentencing, racial bias in: drug criminalization and enforcement, 183; expanding hate crime protections for, 33–34; hate crimes against, 28; prison population, 109; shooting homicides by White males, 45 Blake, Jacob, 104 Blue Lives Matter, 12, 24, 87–88 Blue Lives Matter bill, 24 Blumenauer-McClintock-Norton funding amendment, 205(n9) body cameras used in policing, 97–99 Boldt, Richard, 180 Booker, Cory, 203 border patrols, vigilante behavior by, 216– 217 Boyd, Jean, 114–115, 121(n3) Brown, Michael, 86 Brown v. Plata, 165(table) bump stocks, 53, 55(n2)

burden of proof in campus sexual misconduct cases, 68–69, 71, 73 Bush, Cori, 203

California: adult-use cannabis law and repeal of biased sentencing, 119; advancing rehabilitation over punishment, 164(n2); bail system reform, 159–160; campus sexual misconduct, 66, 73; commitment of sex offenders, 143(n2); community oversight of law enforcement, 101; comprehensive gun regulation, 47, 56(n10); consent standards in sexual assault cases, 71; controlling juvenile sexuality, 133; court for sexually violent predators, 182(n2); deescalating police violence, 107(table); determinate sentencing, 151; drug courts, 172; drugged driving task force, 204(n5); due process in campus sexual assault cases, 74; early prison release of nonviolent offenders, 156–157; expanding drug treatment availability, 174–176; federal, state, and local roles in social control change, 218–219; impact of criminal justice reforms, 161–163; mandatory minimum sentences bill, 118; marijuana DUIs, 192; marijuana law reform, 186– 188; mental health courts, 179–180; open-records laws for law enforcement, 98, 107(table); police training to reduce bias and violence, 95–96; reducing police violence through legislation, 93– 94; reforming social control of sex offenders, 135–138; reinvesting police funding, 100; reverse discrimination claims in IHE sexual assault cases, 73; reversing mass incarceration, 153–155; reversing punitive criminal justice policies, 162–163; risk management in the cannabis industry, 193–194; safeguarding minors from marijuana use and possession, 189–191; sexually violent predator legislation, 130; social control development, 164–167; “threestrikes-and-you’re-out” sentencing, 152; veterans treatment courts, 178–179; young adult courts, 176–178 California Criminal Sentences and Misdemeanor Penalties Initiative Statute (Proposition 47), 175–176 California Highway Patrol (CHP), 192 California Money Bail Reform Act (2018), 160

Index Camden, New Jersey: disbanding the police department, 100, 106(table) cameras, 97–99, 217–218 Campus Sexual Violence Elimination Act (2013–2014), 67, 78–79(n3), 80(table) cannabis. See marijuana Capitol insurrection (2021), 106(n6) Cardona, Miguel, 76 castle-doctrine laws, 45 Chadwick, Sharon, 90–91 Charlottesville, Virginia: White supremacist demonstrators, 30–31 Chauvin, Derek, 104, 108(table) chemical castration, 132 child pornography, 133 children: accidental shootings, 46; advocating gun reform, 54; controlling juvenile sexuality, 133; sexual abuse by family members, 126; sexual killing of, 129; sexually violent predator legislation, 127, 130, 144(table) Children’s On-line Privacy Protection Act, 190 Cho, Winston, 117 choke holds by police, 93 citizen recordings, 83, 217 Citizens United v. Federal Election Commission, 214 Civil Rights Act (1964, 1968), 22 civil rights movement: hate crime law, 22 civil rights violations: campus sexual misconduct as, 66; policy reforms to reduce police violence, 93; reverse discrimination claims in IHE sexual assault cases, 72–73; social control of sex offenders, 127, 141 claim legitimization/institutionalization, 4 claims-making activities, 3–4 Clark, Stephon, 93, 105(n3) clear and convincing evidence in campus assaults, 74–76, 79(n8) Clery Act (1990), 63, 67, 78–79(n3), 80(table) cocaine use and possession, 112, 117–119, 121–122(table), 162, 166(table) Cole, James, 197 Cole Memo, 197–199, 206(table) Coleman, Bonnie Watson, 203 collaborative courts. See problem-solving courts colonialism introducing racial and ethnic bias, 7 Colorado: consequences of marijuana reforms, 195; federal and state marijuana

253

regulation, 197; marijuana DUIs, 192– 193; race and class bias in the bail system, 119; sentencing bias, 123(table) Columbia University: reverse discrimination claims in sexual assault cases, 72 Columbine High School mass shooting, 44 commercial general liability (CGL) coverage, 193–194 commitment of sex offenders, 129, 131– 133, 137, 143(n2), 144(table) community protection model (CPM): sex offender regulation, 126–127 community-based solutions. See also problem-solving courts: disbanding police departments, 100; oversight of law enforcement, 100–101; young adult courts, 177 Community-Oriented Policing Services (COPS), 120–121 Compassionate Use Act (California; 1996), 186–187, 206(table) Comprehensive Drug Abuse Prevention and Control Act (1970), 183–184 comprehensive gun violence prevention, 47–48, 54, 56(n10), 58(table) consent: campus sexual assault, 74; contextual consent standard, 71, 79(n6); Romeo and Juliet laws, 138–140; standards of consent in sexual misconduct cases, 69–72 consent decrees in policing, 78(n1), 100, 102–103, 106(table) Constitution, US: equal protection under the law, 84; involuntary civil commitment of sexual predators, 131 Constructing Social Problems (Spector and Kitsuse), 2–4 constructionism: institutional theory of social problem development, 4–9 contextual consent standard, 79(n6) contextual constructionism, 3–4 contraction, 7, 13. See also decriminalization; legalization of marijuana use; marijuana Controlled Substances Act (CSA; 1970), 183–184 Cooper, Amy, 33–34 corporations as criminals, 213–214 Couch, Ethan, 114–115, 121(n2,3) Covid-19 pandemic: anti-Asian hate crimes, 33; California crime rate, 161 crack cocaine, 112, 117, 119, 121– 122(table), 162

254

Index

Crime Bill (1994), 153 criminal justice reorganization: California’s reversal of mass incarceration, 154–155 criminal justice system: evolution of, 16; history of racial profiling in, 110–114 criminalization of domestic terrorism, 25–27

Davis, Richard Allen, 152 deadly force, use by civilians, 45, 115–116, 122(table), 217 deadly force, use by police, 12; authorization of, 84; George Floyd killing, 83; history of racial control, 85– 88; institutionalization of bias and violence, 88–89; legislation to reduce police violence, 93–94; policy reforms addressing, 93–99, 105(n3), 106(table); qualified immunity doctrine, 89–93 Dear Colleague letter, 64–65, 69–70, 73– 74, 80(table) death penalty, racial disparities in application of, 111 deaths. See also homicides: characterizing mass shootings, 43, 55(n5); gun violence, 41–42, 47; mass shooting statistics per year by decade, 59(table) decriminalization of marijuana possession and sales, 185–186 de-escalation of social control, 7, 9 defense counsel: racial disparities in representation, 112–113 Deferred Action for Childhood Arrivals program, 216 defunding the police, 99 Department of Education (ED): Office for Civil Rights, 62–65, 67–68 determinate sentencing, 118, 151, 164(table) DeVos, Betsy, 73–74 Dickey, Jay, 51 diffusion, institutional, 6–7. See also problem-solving courts; control of sexuality in IHE, 61–62, 71, 76–78; institutional dynamics of social control, 211–212 disbanding police departments, 100, 106(table) discrimination. See also racial bias: bail system reform addressing, 159–160; federal Title IX legislation, 62–63; reverse discrimination claims in IHE sexual assault cases, 72–73 District of Columbia: decriminalizing marijuana possession, 186

District of Columbia v. Heller, 53, 57(table) Doe v. Claremont McKenna College, 73 Doe v. Regents of University of California, 68 Doe v. University of Cincinnati, 73, 80(table) Does v. Snyder, 136–137, 145(table) domestic terrorism, 8, 16; criminalization of, 25–27; defining acts as, 21–22, 30– 32; expanding protections against, 32–36; hate crimes and, 27–28, 31–32; organizations behind, 26; social control development, 37–39(table); social control function of laws governing, 28– 30 domestic violence, 56(n8) driving under the influence: marijuana, 191–193, 204(n5) drug abuse laws: racial bias in cocaine use, 119 drug courts: background and impetus for, 170–171; expansion of court-supervised treatment, 174–176; purpose and function of, 171–174; racial disparities, 113 Drug Enforcement Administration (DEA), 196 Drug Policy Reform Act (2021), 203 drug recognition evaluator (DRE), 192 drug-related incidents. See also marijuana: asset seizure and forfeiture, 200–201; defining mass shootings, 43; determinate sentencing system, 151; qualified immunity doctrine in police shootings, 91; racial disparity in sentencing, 112; reclassification of felonies as misdemeanors, 155–156, 175–176; sexual violence and standards of consent, 70 due process: campus sexual misconduct, 67–68, 74; indeterminate sentencing system, 151; reforming social control of sex offenders, 136–137; sexually violent predator legislation, 130; White males accused of sexual assault, 215 Durkheim, Emile, 29

education and training. See also institutions of higher education; schools: federal involvement in policing reform, 102– 103; juvenile sex offenders, 140; police training to reduce bias and violence, 94–96 Edwards, Jordan, 104, 107(table)

Index Edwards, LaKeysha, 34 Eighth Amendment rights, 111–112, 130 El Paso mass shooting, 28 electronic monitoring technology, 132–133, 143(n3), 157–158, 217–218 Emerson/Messinger model of social problem construction, 2–5 environmental concerns of marijuana cultivation, 187, 193–194 escalation, 7. See also sanctions Estate of Jones by Wayne Jones v. City of Martinsberg W. Virginia, 92–93 ethnic bias. See racial bias ethnographic studies of drug courts, 172– 174, 178–179 excessive force, police use of, 84, 88–93, 96, 99, 101–102, 104, 113(table) execution: racial bias in the criminal justice system, 110 expressive function of law, 29 extremists, crimes committed by, 29

Fair Sentencing Act (2010), 117, 122(table) Federal Bureau of Investigation (FBI): hate crime law, 22; Orlando nightclub shooting, 27–28; underreporting of hate crimes, 29–30; weapons of mass destruction charges, 32; White supremacist demonstration in Virginia, 31 federal government: creation and diffusion of social control of sex offenders, 140– 142; decreasing social control over marijuana, 14–15; federal, state, and local roles in social control change, 218–220; gun legislation and policy reform, 41–42; history of IHE disciplinary systems, 62–64; institutional diffusion across levels of government, 6–7; involvement in policing reform, 102–103; marijuana regulation policy and systems, 185–186, 195–201, 204(n2); providing hate crime protection for the unhoused, 32–33; shifting approach to drug policy, 203– 204; social control of sexuality in higher education, 61–62; standards of consent in sexual misconduct cases, 70 felonies, reclassification as misdemeanors, 155–156, 165(table), 175–176 Ferguson, Missouri shooting, 86, 102, 106(table) Fields, James, 30–31 Fifth Amendment rights, 130, 201

255

First Amendment rights, 22, 26 first generation remedial strategy, 8 first generation social problems, 13 First Step Act (2018), 117 Florida: arming school employees, 44–45; comprehensive gun control measures, 54; the first drug court, 172; mental health courts, 179; Orlando nightclub shooting, 27–28; stand-your-ground legislation, 116–117, 122(table) Floyd, George: Chauvin trial and sentencing, 104, 105(n1); police structural reforms stemming from the killing, 99–100, 103, 108(table); protests following the killing of, 83; qualified immunity doctrine, 89–90, 92 Floyd v. New York City, 110, 122(table) food products, cannabis in, 190 foreign terrorist organizations, 26 Fourth Amendment rights: qualified immunity doctrine, 90–91; search and seizure, 121(n1), 201 fundamental cause theory, 118–119

gang violence: defining mass shootings, 43 Garland, Merrick, 103 Gascon, George, 164(n2), 177 gender. See also sexual assault: disparities in sentencing, 113; federal Title IX legislation, 62–63; gender bias in IHE sexual assault cases, 72–73, 77; hate crimes, 23 George, Donald, 34 George Floyd Justice in Policing Act (2020), 93, 108(table) German, Michael, 29 Gilroy Garlic Festival mass shooting, 51–52 Ginsburg, Ruth Bader, 91 Gonzales v. Raich, 206(table) Goss v. Lopez, 68 Graham v. Connor, 88, 106(table) Gray, Freddie, 102–103 Great Recession (2008–2009), 171 gun industry supporters, 55(n1), 56(n10) gun lobby, 53 gun ownership statistics, 46 gun proliferation policies, 44–45 gun registration legislation, 48–49 gun regulation, 16; applying motor vehicle regulations to, 51, 59–60(table); characteristics of potential shooters, 56(n8); defining gun industry supporters, 55(n1); federal and state regulation systems, 18(n2); goals and

256

Index

targets of regulatory strategies, 45–48; lack of US action towards, 41–42; public support for, 53; reforming, 41; US resistance to, 55(n2) gun safety, 51 gun violence. See also mass shootings: alternative prevention strategies, 48–52; characteristics of potential shooters, 56(n8); defining, 42; gun proliferation policies, 44–45; injuries and casualties, 42–44, 52–54; public protest and outrage, 216; racial basis, 55(n3); racial bias in police shootings, 85–87; social control development, 57–59(table); US statistics, 41–42

habitual offender laws, 111, 151–153 Harris, Kamala, 95, 164(n4) Hate Crime Sentencing Enhancement Act (1994), 23 Hate Crime Statistics Act (1990), 23 hate crimes, 8; defining acts as, 30–32; development of hate crime law, 22–24; domestic terrorism and, 27–28; expanding protections against, 32–36; pushback against legislation, 24–25; social control development, 37– 39(table); social control function of laws governing, 28–30; underreporting of, 29–30 Hate Crimes Against the Homeless Statistics Act, 32–33 hate-crime registry, 34 hearing procedures for campus sexual misconduct, 67–69, 75–76, 79(n4) Hemenway, David, 48 Hendricks, Larry, 130 higher education. See institutions of higher education Hispanic individuals: domestic terrorism targets, 36; El Paso shooting, 28; immigration issues, 13–14, 216; prison population, 109, 114; racial bias in police shootings, 87 Hodges, Dan, 54 homeless populations: dual-diagnosis courts, 176; providing hate crime protection for, 32–33 homicides: George Floyd killing, 83, 89– 90, 92, 99–100, 103–104, 105(n1), 108(table); gun violence, 41–45, 52; impact of California criminal justice reforms, 161; racial bias in policing, 85–86; racial disparities in sentencing,

113; racial disparities of stand-yourground laws, 115–116; White privilege in sentencing offenders, 114–115; White supremacist demonstration in Virginia, 30–31 housing for sex offenders, 128, 134–135, 138 Hughes, Amy, 89–93 human development: the purpose of young adult courts, 177–178 hybridization of the court system, 13. See also problem-solving courts

Ibarra, Peter, 157–158 immigration: introducing racial and ethnic bias, 7–8; organized hate crimes at the US-Mexico border, 36; public agitation over, 216 In re Kenneth Humphrey, 160, 166(table) incarceration. See also mass incarceration; sentencing, racial bias in: California advancing rehabilitation over, 164(n2); involuntary civil commitment of sexual predators, 129; racial disparities, 85, 113–114; of young adults, 177 indeterminate sentencing system, 150–151 Indiana: SOR overreach, 139–140 Indigenous individuals: racial bias in police shootings, 87 inequities in policing. See policing, racial bias in inertia, institutional, 5 institutional constructionism, 1–2, 4, 8–10, 17(n1) institutions of higher education (IHE): Campus Sexual Violence Elimination Act, 67, 78–79(n3); criminal justice and IHE investigations, 66–67; disciplinary proceedings, 67–69; evidence standards, 79(n8); fairness in handling complaints, 79(n4); federal legislation in IHE disciplinary systems, 62–64; federal pushback against IHE disciplinary control, 73–76; hearing procedures for campus sexual misconduct, 67–69, 75– 76, 79(n4); racial disparities in sentencing offenders, 114; reporting sexual misconduct and assault, 63, 76– 78, 78(n2); responsibility for controlling sexual assault, 64–66; reverse discrimination claims, 72–73; sexual assault and harassment statistics, 63; social control development overview, 79–80(table); social control of sexuality,

Index 61–62; standards of sexual consent, 69– 72; taking action without an open complaint, 78(n1); underreporting of rape and assault, 78(n2) insurance industry: gun industry lobby, 51– 52; risk management in the cannabis industry, 193–194 international terrorism, 26, 30–31 interstate movement of marijuana, 205(n8) Islamic State in Iraq and Syria (ISIS), 26, 31

Jackson, James, 28 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (JWA), 127–128 James, Letitia, 56(n12) Jaynes, Gerald, 85 Jessica’s Law, 138 Jessop v. City of Fresno, 90 John Doe v. Columbia University, 72–73, 80(table) John Doe v. University of Southern California, 68 Jones, Wayne, 92–93 judicial decisionmaking: Brock Turner sentencing, 118; California assault weapons ban repeal, 47–48; institutional dynamics of social control, 211–212; racial disparities in, 113 jury verdicts, racial disparities in, 113 Justice, US Department of (DOJ): civil asset forfeiture for marijuana activity, 200–201; marijuana control, 196–197, 205(n9); police reforms, 100, 102; racial bias prosecuting hate crimes and domestic terrorism, 32 juvenile court, 113–115, 176–177

Kansas: sexually violent predator legislation, 130–131 Kansas v. Crane, 131, 144(table) Kansas v. Hendricks, 130–131, 144(table) Karsjens et al. v. Minnesota Department of Human Services, 137, 145(table) Karsjens et al. v. Piper, 137, 145(table) Keeping the Internet Devoid of Sexual Predators (KIDS) Act, 127, 144(table) Kennedy, Anthony, 134 Kentucky: hate crime laws, 24 King, Rodney, 97, 102 Kisela, Andrew, 90–91 Kisela v. Hughes, 89–93, 107(table) Klaas, Polly, 152 Konradi, Amanda, 67

257

labor force: consequences of marijuana reforms, 194–195; working under the influence of marijuana, 204(n7) Las Vegas mass shooting, 26, 35, 50–51, 53, 55(n2), 56(n11) law and order advocacy, 83–84 Law Enforcement: Use of Deadly Force: Training: Policies (California Senate bill), 95–96 legal liability: gun owners’ and manufacturers’ immunity from, 50–52, 56(n11); IHE liability in sexual misconduct cases, 75; Las Vegas mass shooting, 56(n11); police use-of-force investigations, 97; “reasonable officer” test of police use of force, 88–89; structural policy reform in law enforcement, 101–102 legalization of marijuana use, 14–15, 119, 185–186 legitimacy: decrease leading to agitation, 13; legitimization of social control, 9; loss of social control legitimacy, 214–215 LGBTQ+ individuals, 15–16; IHE sexual assault, 63; Orlando nightclub shooting, 27–28; pushback against hate crime legislation, 25; social policy changes affecting, 213 Liccardo, Sam, 51–52 Louisville, Kentucky, 105(n4) mandatory minimum sentences, 111–112, 117–118, 122(table), 151, 162, 166(table), 171, 198, 204(n2) marijuana: California’s legislative reforms, 186–188; changes in federal and state legislation and policies, 185–186; consequences of legal reforms, 194– 195; criminalization of, 183–184; decreasing social control, 14–15; federal and state regulation systems, 18(n2), 195–198; federal policy retrenchment, 198–200; fluctuations in regulation and punishments for, 201– 204; institutional diffusion across levels of government, 6–7; legalization alleviating racial disparity in criminal justice, 119; medical use, 186–187, 190–191, 196, 203, 204(n4), 205– 207(table), 205(n9); racial bias in control of, 204(n1); racial disparities in arrests, 111; regulatory system development and implementation, 188– 189; safeguarding against use by

258

Index

minors, 189–191; safeguarding consumers and the public, 193–194; safeguarding vehicular travel, 191–193; social control development, 205– 207(table); state and local policing, 200–201; transporting across state lines, 205(n8); working under the influence of, 204(n7) Marjory Stoneman Douglas mass shooting, 54, 58(table), 216 Martin, Trayvon, 45, 87–88, 116, 122(table) mass incarceration: background and history, 150; bail system reform, 159–160; bipartisan consensus on reforms, 161– 162; community monitoring of offenders, 157–159; early prison release of nonviolent offenders, 156–157; escalation of punishment, 150–153; impact of California criminal justice reforms, 161; minority bias in drug enforcement, 184; prison population composition, 150; racial bias, 164(n3); realignment of California’s criminal justice system, 154– 155; reform measures, 153–160; social control development, 164–167; US statistics, 149 mass murderer, defining, 55(n4) mass shootings, 16; comprehensive gun regulation following, 48; defining and characterizing, 42–43, 55(n5); effect of gun regulation on, 47; public outrage against, 216; statistics per year by decade, 59(table); weapons involved in, 47 Mateen, Omar, 27–28 McCartt, Bradley, 136 McDonald, Laquan, 104, 107(table) McGuire, Brendan R., 34–35 McKune v. Lile, 134 Me Too movement, 114 media coverage: gun violence and gun regulation measures, 53; racial bias in police shootings, 86 mediation: sexual assault on campuses, 74 Medical Cannabis Regulation and Safety Act (MCRSA; California), 187 Medical Marijuana Regulation and Safety Act (MMRSA; California), 187, 207(table) medical marijuana use, 186–187, 190–191, 196, 203, 204(n4), 205–207(table), 205(n9) Medicinal and Adult Use Cannabis Regulation and Safety Act (MAUCRSA), 188–189, 207(table)

Meehan, Albert J., 98–99 Megan’s Law (2016), 127 Menendez brothers, 115 mental health: dual-diagnosis courts, 176; the function of drug courts, 171–172; gun violence and, 56(n8); qualified immunity doctrine, 92; racial disparities in treatment of incarcerated individuals, 114; reforming social control of sex offenders, 137; sexually violent predator legislation, 129–130; therapeutic jurisprudence, 170–171 mental health courts, 179–180 Michigan: social control of sex offenders, 136–137, 139–140 military: veterans treatment courts, 178–179 military model of policing, 84–85 Military Sex Offender Reporting Act (2015), 127, 144(table) Miller v. Alabama, 111–112, 122(table) Miller v. Bonta, 47–48 Minnesota, 105(n1), 108(table); disbanding the police department, 100; police structural reforms stemming from the Floyd killing, 103; reforming social control of sex offenders, 137 Minnesota Civil Commitment Act (MCTA), 137 Model Penal Code (MPC), 71, 79(n5) Montgomery v. Louisiana, 112 moral panic, 125–126 Mother Jones database, 43, 55(n5) motor vehicle deaths, 51 motor vehicle regulation: applying to firearms regulation, 51, 59–60(table) multihomicide shootings, 43 Murphy, Thaddeus, 32 Muslims: evolving perceptions and characterizations of, 213; public outcry after 9/11, 29; pushback against hate crime legislation, 25

National Association for the Advancement of Colored People (NAACP), 32 National Basketball Association (NBA): challenging race-based police violence, 104 National Football League (NFL): challenging race-based police violence, 104 National Rifle Association (NRA): challenging gun violence prevention, 49, 53; extremist strategies opposing gun regulation, 56(n12); Florida’s

Index stand-your-ground legislation, 116–117; social control development for gun violence, 58(table) Nehad v. Browder, 93 Never Again MSD social movement, 54, 58(table) New Jersey: bail system reform reducing pretrial detention, 159–160; race and class bias in the bail system, 119; race and class bias in the sentencing system, 123(table) New Jersey Criminal Justice Reform Act, 166(table) The New Jim Crow (Alexander), 91 New York: involuntary civil commitment of sexual predators, 129; stop-and-frisk policy, 110 New Zealand mass shooting, 55(n2) no-knock warrants, 93, 99–100 North Carolina: outpatient commitment for sex offenders, 131, 144(table) notification of sex offenders, 127–128, 135–136

Obama administration, 17; criminal justice reforms in policing, 103; increasing IHE disciplinary standards, 64–65; smart gun technology, 49; social control development for gun violence, 57(table)–58(table); strengthening legislation protecting women on campuses, 63–64; Trump administration rescinding marijuana laws, 198–200 Office for Civil Rights (OCR; Department of Education), 62–65, 67–68 Oliver, Roy, 104, 107(table) open-carry legislation, 45 Oregon: marijuana decriminalization, 186, 205(table); Trump’s policing by militarizing federal agents, 105–106(n4) Orlando nightclub shooting, 27–28 Ortiz, Felix, 34 oversight, police, 100–101 OxyContin, 214 Paddock, Stephen, 35 Parkland mass shooting, 45, 54, 216 parole release and revocation: California mass incarceration reform, 153–154; early prison release of nonviolent offenders, 156–157; indeterminate sentencing system, 150–151; racial disparities, 113; “truth-in-sentencing” laws, 152–153

259

Paul, Rand, 164(n4) Pennsylvania: hate crime laws, 24 People of State of California v. Brock Allen Turner, 114, 122(table) People v. Appleton, 158–159, 166(table) People v. Bryant, 158–159, 166(table) People v. Ebertowki, 159, 166(table) People v. Lent, 159 People v. Smith, 158 Persky, Aaron, 117–118 pesticide use in marijuana, 193–194 pharmaceutical industry: corporations as criminals, 214 pipe bombs, 31 Pitchess v. State Personnel Board, 101 police and policing: citizen shootings, 87– 88; consequences of marijuana reforms, 194–195; federal subsidization of state and local marijuana policing, 200–201; Las Vegas shooting, 26; military model of policing, 84–85; negative consequences of problem-solving courts, 181–182; perceived legitimacy of, 214–215; reporting campus sexual misconduct, 66; use of excessive force, 84, 88–93, 96, 99, 101–102, 104, 113(table); vigilantes impersonating, 36 police shootings, 16 policing, racial bias in, 8–9. See also deadly force, use by police; affecting public perception of police legitimacy, 214– 215; bias, violence, and use of deadly force, 85–88; Breonna Taylor shooting, 105(n4); challenging the status quo, 103–105; civil asset forfeiture for marijuana activity, 200–201; COPS program enhancing diversity in law enforcement, 120–121; death of George Floyd, 83–84; effect on sentencing, 119; federal involvement in policing reform, 102–103; history and patterns of, 84– 85; legal policy reforms, 93–94; police training in use of force, 94–96; psychology of police shootings, 105(n2); qualified immunity doctrine, 89–93; radical perspective on, 106(n6); “reasonable officer” test of use of force, 88–89; structural reform for police departments, 99–102; surveillance technology aiding police reform, 97–99; Trump’s policing by militarizing federal agents, 105–106(n4) policy determination: state of social problem construction, 2

260

Index

policy formation, implementation and modification, 4–5 policy reform: bipartisan consensus on prison reforms, 161–162, 164(n4); federal, state, and local roles in social control change, 218–220; federal involvement in policing reform, 102– 103; increasing gun violence, 43–44; institutional construction model, 17(n1); institutional reforms to reduce sentencing disparities, 117–119; marijuana legislation and policy, 185–186, 194– 195; NYPD stop-and-frisk policy, 110; policing bias and violence, 93–96, 106– 108(table); the purpose of problem-solving courts, 180; racism driving, 8; reducing gun violence, 41–42; reversing mass incarceration, 153–160; social control of sex offenders, 135–138, 141–142; structural reform for police departments, 99–102; surveillance technology aiding police reform, 97–99 populist social movements: CPM approach to sex offender regulation, 126–127 pornography, child, 133 poverty: racially disparate law enforcement practices, 111 powder cocaine, 112, 119, 121–122(table), 166(table) Powell, Joshua, 56(n12) preponderance of evidence standard, 69, 74–76, 79(n8), 200 Prescott v. Slide Fire Sols, 51, 58(table) President’s Task Force on 21st Century Policing, 95, 101 pretrial detention, 159–160, 164(n3) prevention mechanisms: gun violence, 10 Printz v. U.S., 197–198 prison population. See mass incarceration probable cause, racial bias and, 110, 121(n1) probation before judgment (PBJ), 171 probation officers: community monitoring of offenders, 157–159 probation violation: Ethan Couch, 121(n2) problem-solving courts: development and diffusion, 182(table); drug courts, 171– 174; evaluating the strategies and success, 180–182; integration into mainstream courts, 179–180; mental health courts, 179–180; for sexually violent predators, 182(n2); veterans treatment courts, 178–179; young adult courts, 176–178

Protection of Lawful Commerce in Arms Act (2005), 50, 57(table) public opinion: arming school employees, 45; decline in public trust of social control institutions and actors, 214–215; lenient sentence of Ethan Couch, 121(n3) Public Policy Institute of California (PPIC), 188 public protest: children advocating gun reform, 54; leading to sex offender registration and notification, 127–128; legalization of marijuana, 186; against racial bias in policing and sentencing, 215 public role in social control, 215–218 Public Safety and Rehabilitation Act (California), 156–157, 166(table) Public Safety Realignment Act (California), 154–155, 165(table) public-health oriented strategies. See problem-solving courts punctuated equilibrium, 5 punishment. See incarceration; mass incarceration; sentencing Purdue Pharma, 214 qualified immunity (QI) doctrine, 89–93 Questions and Answers on Title IX and Sexual Violence, 65, 80(table)

racial bias. See also hate crimes; policing, racial bias in; sentencing, racial bias in: drug criminalization and enforcement, 183–184; effect on social control strategies, 7; evolving perceptions and characterizations of Muslims, 213; expanding protections against hate crime and domestic terrorism, 35–36; gun homicides, 45, 55(n3); in marijuana control, 204(n1); prosecuting hate crimes and domestic terrorism, 23, 30– 32; public outcry after 9/11, 29; social policy developments addressing, 10 rape. See institutions of higher education; sexual assault rape culture, 64 realignment of California’s criminal justice system, 154–156 “reasonable officer” test of police use of force, 88–89 reasonable suspicion, 91, 110, 121(n1) recall campaigns, 117–118, 121(n4) recall of Judge Persky, 118 recidivism risk: discretionary sentencing, 151; drug court evaluations, 173–176;

Index Fair Sentencing Act, 162; problemsolving courts, 169, 171; racial factors, 111; for sex offenders, 126–127, 132, 134, 136; three-strikes sentencing, 152, 157 recreational drug use: the emergence of drug courts, 170–171 red flag gun laws, 46, 56(n8) Redefining Policing with Our Community publication, 100–101 Reduced Penalties for Some Crimes Initiative (California), 155–156 reform. See policy reform regulation: gun regulation, 10, 45–48; implementation through alternative systems, 7; marijuana regulatory system and implementation, 188–189; motor vehicles, 51, 59–60(table) religious conservatism: pushback against hate crime legislation, 25 remedial approach, defining, 8 Remington Arms Company, 50 Repeal Ineffective Sentencing Enhancements (RISE) Act, 119, 123(table) Republicans: addressing police misconduct, 93 reverse discrimination: addressing racial inequities in sentencing, 118; sexual assault in higher education, 72–73 Reynolds, Dan, 54 Riebe, Todd, 156–157 right-to-carry legislation, 45 right-wing extremists, 29, 31–33 risk assessment of sex offenders, 129, 135, 140, 143–144(n4), 145(table) risk management in the cannabis industry, 193–194 Roberts, John, 91 Rohrabacher-Farr Amendment, 198, 200, 206(table) Romeo and Juliet laws, 138–140

safety strategies: gun violence prevention, 48–52 Saipov, Sayfullo, 31 San Bernardino shooting, 26 San Francisco: racial disparities in legal representation, 113 sanctions, financial: drug court incentives and punishments, 172–173; IHE control of sexual assault, 64–65; social control of hate crimes and domestic terrorism, 28–30; social control of sexuality in higher education, 78–79(n3); structural

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reform strategies for police departments, 99–100, 108(table) Sandy Hook mass shooting, 50, 54, 216 Sandy Hook Promise organization, 54 Sayoc, Cesar, 31–32 schedules for controlled substances, 183– 184, 196, 203 schools. See also education and training; institutions of higher education: arming school employees, 44–45, 55(n6); school-based mass shootings, 44–45, 50, 53–54 Schumer, Chuck, 203 Scott, Walter, 104 search and seizure: Fourth Amendment rights, 121(n1), 201 Second Amendment rights: gun violence and gun regulation measures, 47, 51–53, 57(table) secondary victimization from sexual assault, 65 segregation, 8 self-defense shootings, 45, 115–117 sentencing. See also sentencing, racial bias in: California’s criminal justice realignment, 154–155; cannabis sales to minors, 189–190; determinate sentencing system, 151; the emergence of drug courts, 170–171; enhancements for hate crimes and domestic terrorism, 21, 23, 28–30, 34, 37(table); escalation of punishment over time, 150–153; failure in drug courts, 172; indeterminate sentencing system, 150–151; life without parole for youthful offenders, 111–112; mandatory minimum sentences, 111– 112, 117–118, 122(table), 151, 162, 166(table), 171, 198, 204(n2); marijuana possession, 183–184; reducing sentencing overreach, 154; reversing punitive policies, 162–163; Stanford University sexual assault case, 71; “three-strikes-and-you’re-out,” 151–152, 154, 157, 171; “truth-in-sentencing” laws, 152–153, 164(table) sentencing, racial bias in, 8–12; Biden reforms, 163; determinate sentencing, 118; disparities in youth cases, 111–112; institutional developments exacerbating, 115–117; institutional reforms to reduce disparities, 117–119; limiting damage by, 119–121; protest against, 215; social control development, 121–123(table); stop-and-frisk procedures, 121(n1)

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Index

Sentencing Project, 111 Sessions, Jeff, 31, 198–201 Sessions Memo, 207(table) sex offender registration: SOR, 127–128; AOC requirements, 132; constitutional challenges, 37(n1); effect on juvenile offenders, 138–140; electronic monitoring technology, 143(n3); inequalities, 11; for sexually violent predators, 143(n2); social control reforms, 135–136 Sex Offender Registration and Notification Act (SORNA), 127 sex offenders: background and motivations for demonization, 125–126; controlling juvenile sexuality, 133; creation and diffusion of social control, 140–143; debate over characterization of offenders and victims, 213; defining, 126; development of regulation, 61; expansion and escalation of regulations, 61, 126–127; involuntary commitment of, 128–133, 137, 143(n2); the myth of sexual demons, 134–135; predicting the risk of violence, 143(n1); reforming social control of, 135–138; reforming the social control of juvenile sexuality, 138–140; registration and notification regulations, 127–128; social control development, 144–145(table); stigmatization of, 12–13 sexual assault. See also institutions of higher education (IHE): affirmative consent standard in sexual assault cases, 71; assault and murder of Polly Klaas, 152; defining rape and, 69–70; ED rules governing, 75; IHE responsibility for controlling, 64–66; institutional dynamics of social control, 212; Menendez brothers trial, 115; protest over the Brock Turner case, 117; racial disparity in sentencing offenders, 114; social control development, 61; standards of consent, 69–72; underreporting of, 78(n2); young people in adult correctional facilities, 114 sexual demons, the myth of, 134–135 sexual misconduct: defining, 76; ED rules governing, 75 sexual orientation, hate crimes and, 23 sexual violence, defining, 70 sexually violent predator (SVP) legislation, 129–130, 133, 141, 143(n2), 144(table), 182(n2)

Sexually Violent Predators Act (1996), 130 shootings. See also mass shootings: international terrorism, 26; Orlando nightclub shooting, 27–28; qualified immunity doctrine, 89–93; racial bias in police shootings, 85–87, 110; standyour-ground laws, 115–116 Simpson, O.J., 88 Sixth Amendment rights, 112–113 Slager, Michael, 104 slavery introducing racial and ethnic bias, 7 smart guns, 48–49 smart-on-crime policies, California’s, 162– 163 social activism: children advocating gun reform, 54 social class as universal fundamental cause, 118 social control: agents, 8–9; defining, 1; diffusion and accretion, 6–7; institutions, 3 social media searches, 158–159 social movements challenging race-based police violence, 104–105 social problem construction and development: institutional constructionism, 1–2; institutional theory, 4–9; origins of racial and ethnic bias, 7–8; theoretical models of, 2–4 Sotomayor, Sonia, 91 South Carolina: electronic monitoring of sex offenders, 132–133 Spector/Kitsuse model of social problem construction, 2–4 “stand-your-ground” legislation, 45, 115– 117, 122(table) Stanford University, 71, 114 state legitimacy, 214–215 state level government. See also California: affirmative consent standard in sexual assault cases, 71; controlling juvenile sex offenders, 133; creation and diffusion of social control of sex offenders, 140–142; defining sex crimes, 69–70; federal, state, and local roles in social control change, 218–220; federal and state marijuana regulation systems, 195–198, 205(n11); forefront states driving social change, 16–17; gun legislation and policy reform, 10, 41– 42, 47; hate crimes, 23, 32–33; institutional diffusion across levels of government, 6–7, 140–142; involuntary outpatient treatment or commitment of

Index sex offenders, 129–133; life without parole sentences for youth, 112; marijuana legislation, 14–15, 185–186, 194–198, 204(n4), 205–207(table), 205(n11); medical use of marijuana, 204(n4); providing hate crime protection for the unhoused, 32–33; reducing police bias and violence, 93– 94; reforming social control of sex offenders, 135–137; reporting campus sexual misconduct, 66; Romeo and Juliet laws for sex offenders, 138–140; sex offender registry, 128; sexually violent predator legislation, 129–131 State of Florida v. George Zimmerman, 116, 122(table) State of Maryland v. Charles David Brightful, 192 statutory rape, 138–140 Steinberg, Laurence, 178 Stephon Clark Law, 93, 105(n3) stop-and-frisk procedures, 110, 121(n1) stops and searches, police, 110 structural reform strategies for police departments, 99–102 student activism: sexual assault and sexual harassment on campus, 65–66 Substance Abuse and Crime Prevention Act (SACPA; California), 174–175 substance use and abuse. See also drugrelated incidents; marijuana: institutional constructionist model, 4–6; problem-solving courts, 14 suicide: gun violence, 41–44, 46; by young people in adult correctional facilities, 114 Supreme Court, US: corporations as criminals, 213–214; hate crimes, 22; the myth of sexual demons, 134; qualified immunity doctrine, 90–91; racial disparities in sentencing youth, 112; sexually violent predator legislation, 130–131; social control of sex offenders, 141–142 surveillance, 217–218; addressing racial bias in, 11–12; community monitoring of offenders, 157–159 synergy between social control arenas, 11

taxation of cannabis, 195 Taylor, Breonna, 100, 105(n4) terrorism, 8. See also domestic terrorism; defining, 25–26 Terry v. Ohio, 110, 121(n1)

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tetrahydrocannabinol (THC), 190–191 Texas: SOR overreach, 139 theft: qualified immunity doctrine, 90 theoretical models of social problem construction, 2–4 Thomas, Clarence, 130 “three-strikes” doctrine, 14, 151–152, 154, 157, 171 Three-Strikes Law Initiative (California), 154, 165(table) Title IX legislation (1972), 62–66, 69, 73, 79–80(table) “tough-on-crime” measures, 14, 118, 152– 155, 163, 180, 198 transparency: campus sexual assault, 78– 79(n3), 79(n4); community oversight of law enforcement, 101; indeterminate sentencing system, 151; police cameras, 97–98, 217; reversing tough-on-crime measures, 163 treatment/rehabilitation approach to social control, 5–7. See also problem-solving courts; California advancing rehabilitation over punishment, 164(n2); California’s SACPA program, 174–176; the function of drug courts, 171–173; institutional accretion in social problem control, 6; marijuana use and abuse, 184; sex offenders, 142; therapeutic social control responses, 14 Trump administration, 17; IHE sexual conduct policies, 80(table); increasingly punitive criminal justice policies, 163; marijuana policy shift, 198–199; pipe bomb mailing, 31; policing by militarizing federal agents, 105–106(n4); punitive criminal justice approach, 5; reversing criminal justice reforms in policing, 103; weakening IHE control over sexual assault cases, 73–76 “truth-in-sentencing” laws, 152–153, 164(table) Turner, Brock, 71, 114, 117, 122(table)

Uniform Determinate Sentencing Act, 164(table) United Constitutional Patriots (UCP), 36 U.S. v. McIntosh, 198, 200 U.S. v. Oakland Buyers Collective, 205(n9) U.S. v. Pisarski, 200, 207(table) use-of-force incidents. See also policing, racial bias in: California legislation for reducing police violence, 95–96; disclosure requirements, 101; gun

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violence, 44; legal policy reforms to reduce, 93–96, 107–108(table), 116; military model of policing, 85; prosecution of police officers, 215; qualified immunity doctrine, 89–91; rape as, 69; “reasonable officer” test, 88–89; surveillance technology to reduce, 97–98; terrorist activities and hate crimes, 25, 27 US-Mexico border, 36 Utah v. Strieff, 91, 106(table)

Van Dyke, Jason, 104, 107(table) Varnell, Jerry, 32 veterans treatment courts, 178–179 victims, sexual offenders as, 142 vigilante law enforcement: gun proliferation, 44; lack of legitimacy, 216–217; subjecting sex offenders to, 128; US-Mexico border patrols, 36 violence. See also policing, racial bias in: hate crimes, 23; legal policy reforms to reduce bias and violence in policing, 93–94; race-based violence in policing, 85–88; racial and ethnic bias, 7 Violence Against Women Act (1994), 23 Violent Crime Control and Law Enforcement Act, 127–128, 164(n1), 164(table) Vosburg v. County of Fresno, 138, 145(table)

Walsh, Adam, 127–128 Walsh, John, 127–128 war on drugs, 5–7, 111, 184, 205(n9) Warren, Elizabeth, 48, 58(table) Washington: federal and state marijuana regulation, 197; involuntary civil commitment of sexual predators, 129– 130, 144(table); marijuana DUIs, 192–193; shifting funding from police, 99–100, 108(table)

Washington, Marvin, 196 Washington v. Barr, 196 Washington v. Sessions, 196, 207(table) watchdogs, the public role as, 217 wealth inequalities: racial disparities in legal representation, 112–113 weapons of mass destruction, 31–32 weapons offenses: community surveillance of offenders, 158–159; determinate sentencing system, 151 Wesley, Hess, 34 White privilege. See also policing, racial bias in; sentencing, racial bias in: addressing racial bias in policing, 95; minority bias in drug enforcement, 184; in sentencing, 109–110, 114–115 White supremacist organizations, 26, 30–31 Whitmer, Gretchen, 37(n1) Williams v. Pennsylvania, 114 Wisconsin v. Mitchell, 22 wobbler offenses, 152 women. See also institutions of higher education; sexual assault: hate crimes, 23; racial disparities in sentencing, 113 Woolgar/Pawluch model, 3–4 Wyden, Ron, 203 Yes Means Yes bill, 71 young adult courts, 176–178 youth: California’s young adult courts, 176–178; the emergence of drug courts, 170–171; racial disparities in policing, 111; reforming the social control of juvenile sexuality, 138–140, 142–143; safeguarding minors from cannabis products, 189–190, 204(n5) Youth Risk Behavior Surveys, 190–191 Zimmerman, George, 116, 122(table)

About the Book

terrorism, drug abuse, police malfeasance, and many other profound social problems. Equally, there are discussions, often contentious, about how best to respond to the issues raised. Stacy Burns and Mark Peyrot explore government efforts to address social problems in the context of the criminal justice system. Adopting an institutionalist perspective, the authors show how social control efforts have adapted and changed over time—and how some efforts have inadvertently contributed to the problems they are trying to alleviate. Their work draws on a wealth of sources, ranging from case law to popular initiatives to policy analysis, to advance both theoretical and practical understanding of criminal justice at work.

Today's headlines are rife with reports of hate crimes, domestic

Stacy Burns is professor of sociology at Loyola Marymount University. Mark Peyrot is professor emeritus of sociology at Loyola University Maryland.

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