CJ/Public Policy Exam 3

history of victim’s place in cj

• early Common Law System (Colonial Period → 1700s)

  • before rise of public prosecutors

  • law enforcement minimal

  • crime viewed as a private wrong rather than a violation of the state

  • victims primarily responsible for seeking justice

• role of the victim

  • victims initiated prosecution and gathered evidence

  • restitution

  • banishment → basically a death sentence at this time

  • corporal punishment → literal death sentence (physical/extreme punishments)

removal of victims

• rise of public prosecutors (1800s → late 1800s) → society is starting to become more complex in every way (ex: bigger cities, more people, etc.)

  • state-appointed prosecutors (district attorneys) began taking over criminal cases

  • many states established prosecutor offices at county level, making prosecution as governmental function

  • courts increasingly saw crime as a public offense rather than a private dispute

• complete shift to state-controlled prosecution (early 1900s → present)

  • by early 20th century almost all US states have formalized public prosecution

  • professionalization of police forces further shifted investigative responsibility away from victims

  • victims’ roles largely reduced to being witnesses in cases prosecuted by the state

the shift of victims’ roles

• wasn’t a major public movement or a public debate

• gradual, structured change due to a combination of practical legal development, state-building efforts, evolving views of justice

  • inconsistent/ineffective enforcement

  • concerns about vigilantism/retaliation

  • rise of “public interest” perspective on crime

  • expansion of governmental/professionalization of law enforcement

  • judicial/legislative reforms

role of victims after shift

• mid-1800s → mid-1900s

  • victim as a passive witness

  • state became sole “victim” in legal terms

  • limited support/services for victims

  • shift toward rehabilitation of offenders

    • policies aimed at reducing recidivism, expanding parole, limiting harsh sentencing

victims’ rights movement

• began in 1970s and gained significant momentum through 1980s/1990s

  • development of “victimology”

  • rise of crime in 1960s/1970s

  • rise of feminist movements

  • growth of victim activism

feminist movement/victim activism

• second wave feminism (1963-1980)

  • advocacy for laws/criminal punishments for SA/DV

• establishment of other victim-centered organizations

  • e.g. Families/Friends of Mission Persons (1974)

  • e.g. Parents of Murdered Children (1978)

  • e.g. Mothers Against Drunk Driving (1980)

• importance of victim widely accepted by 1980s

victim impact statements

• formal statement given by victims (or their families) at sentencing hearings; detailing how crime affected them emotionally, physically, financially

• how victims can influence punishments:

  • judges permitted to consider impact statements for punishment decisions (not guilt)

  • can be used at parole hearings to argue against early release

  • influence on plea bargaining

  • advocacy for sentencing outcomes

  • diversion programs

  • parole hearings

  • Payne vs. Tennessee (1991) → SCOTUS ruled that VIS are constitutional in death penalty cases

Marsy’s Law

• key provisions:

  • notification/participation rights

  • protection from offender

  • input on bail, sentencing, parole

  • legal standing/enforcement

• first passed in CA (2008) as part of CA Victim’s Bill of Rights Act

  • at least 12 states have passed versions of it (FL → 2018)

• typically amended to a state constitution

  • b/c of this, this means you can’t pass anything that infringes on the rights in this amendment

    • gives it way more power/weight

    • courts would just strike it down

  • attempts to add this to the US constitution has failed

where do victims belong

• some argue that victims will never be fully recognized in the CJ process and better off in restorative justice programs

• restorative justice values: dignity of individuals, participation of offender/victim, reparation

• review of restorative justice literature finds three different frameworks:

  • abolitionism

    • treating criminal courts like civil courts

      • ex: personal violations

  • add restorative justice practices to cj

    • not fully abolished (only specific crimes)

  • integrate restorative justice values in cj system

    • prioritize treating victims w/ dignity

      • ex: mediation, restitution, etc.

arguments for Marsy’s law

• balances cj system

  • ensure victims have a voice, as well

• ensures victim safety

  • right to be notified for release/escape, etc.

• increases transparency/communication

  • mandates notifications in key stages

due process concerns of Marsy’s law

• ****restricting access to evidence*****

  • some versions of the law give victims the right to refuse discovery requests, which can prevent the defense from obtaining crucial evidence

• weakening presumption of innocence

  • some versions of the law grant victims’ rights that are typically granted after conviction

    • ex: protection orders, right to be heard at bail hearings

cost-efficiency evaluations

• main goal: identify which policy gives us the most return for the resources invested

  • these evaluations ask, “what is the best use of resources”

• why are they important?

• two types:

  • cost-effectiveness

  • cost-benefit

cost-effectiveness

• calculates the “cost-per-outcome”

  • ex: cost per life saved, cost per theft prevented

• when do we use this?

  • this is when you have one goal in mind → identify the best policy for it

• aggravated assault example from class/slides

• important takeaways for this:

  • compare all programs using same outcomes

  • effectiveness alone not enough

  • cost alone not enough

  • key metric = cost per unit of outcome

cost-effectiveness gone wrong

• how can this happen?

  • potential effects beyond your area of interest

    • ex: crime displacement

  • if you scale up, you could get diminishing returns

    • opposite way → if you scale down, you may even get more returns

  • time → initial effects but over time could go away/reverse potentially

  • could be other contextual factors where you want to implement policy

limits to cost-effectiveness

• only considers one outcome

  • most policies/programs want to do more than one thing

    • if you can’t factor them in, there may be an unbalanced comparison

cost-benefit

• compares total expected benefits from total expected costs

• always depends on what the policy is being compared against

• assigns monetary value to all costs and outcomes to get a “net benefit”

  • helpful when we have multiple goals and want to know where we can make the largest impact

• key differences between this and CE?

conducting cost-benefit evaluations

• state policy questions

  • strong needs assessment helps here: clarifies problem/realistic menu or policy alternatives

  • you have to identify the counterfactual

    • could be the absence of the program or another program altogether

• identify perspective of analysis

  • decide whose costs/benefits count → dictates what gets counted as cost/benefit

  • no single “correct” perspective, but results change on which one you choose

• identify all relevant costs/benefits

  • include direct/indirect effects, intended/unintended effects, short-term/long-term goals

  • tangible/intangible, fixed/marginal

• assign monetary values

  • convert each relevant cost/benefit into dollars

    • some are straightforwards but others are harder to monetize (b/c they’re intangible)

      • ex: “willingness-to-pay” approach"

        • problem with this is that wealthier participants may skew the data if not careful

        • useful, but limited

        • way questions are framed also changes the monetary value

• compare total costs/benefits

  • arrange over time, discount future dollars to present value

  • discount rate → rate you use to convert future costs/benefits into today’s dollars, b/c money today is worth more than money later (distinct from inflation)

  • two analysis options:

    • net-benefit: benefits-costs

    • benefits-cost ratio: benefits/costs

• assess sensitivity/state limitations

  • test whether conclusion changes when key assumptions change

  • cost-benefit only as credible as the impact evidence underneath it

  • some direct limitations (ex):

    • uncertain valuation of intangibles

    • implementations problems

comparison for community policing

• cost-effectiveness analysis

  • how much crime per dollar is reduced w/ traditional policing?

  • how much crime-per-dollar is reduced w/ community policing?

  • you then compare the two!

• cost-benefit analysis

  • what is the “net benefit” of community policing when you assign value to all goals? (reduced crime, greater community order, greater feelings of safety, etc.)

  • what is the “net benefit” of traditional policing?

  • you then compare the two!

direct effects

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • costs/benefits that are most closely tied to the police’s primary objective

indirect effects

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • costs/benefits that are the policy’s spillovers, by-products, or externalities

intended effects

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • the outcomes the policy is supposed to proceed according to its theory or design

unintended effects

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • side effects the policy produces → could be either good or bad

short-term effects

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • effects that happen soon after implementation

long-term effects

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • effects that unfold later, may grow over time, taper off, or disappear

tangibles

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • costs or benefits with clear market value; easier to monetize

intangibles

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • costs or benefits with ambiguous value; harder to monetize

fixed costs

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • this is a cost that is constant whatever the quantity of it

marginal costs

• related to identifying all relevant costs/benefits (cost-benefit evaluation)

  • this is a cost that is added by producing on additional units

QALY

• an example of Step 4: Assigning Monetary Values (cost-benefit evaluation)

  • Quality-Adjusted Life Year: combines how long someone lives/how good or bad that life/health state is into a single number

    • 1.0 = one year in perfect health

    • 0.5 = one year lived at half that quality

    • 0.0 = health state equivalent to death

  • one year after an assault a person has anxiety, trouble sleeping, and analysts divide that this year lived is a 0.65 (0.35 QALY lost)

    • $200,000 × 0.35 = $70,000 (value assigned to quality-of-life cost)

    • experts assign a $ value per QALY/use number to generate cost

welsh paper

• benefit-cost ratio

  • type of evaluation done in the paper:

    • situational crime prevention, development, community

      • development was considered the most efficient of the three

  • BCR > 1.0 means that the program’a economically worthwhile

collateral consequences overview

• normally non punitive penalties, disabilities, and restrictions applicable to people convicted of crimes

• common policy domains = employment/licensing, housing/benefits, civil/political rights, education/mobility (plus informal burners of stigma, private screenings)

• NOT a formal, criminal legal punishment, but a restriction based upon group membership

  • legislations/”on-the-books” policies

origins of collateral consequences

• American colonies imported concept of “civil death” from England

  • in English Common Law, applied to people convicted of certain serious crimes, like treason or other felonies

  • were for legal purposes considered “dead” and lost most of their rights

• “Americanization” of common law reformed England’s harsh felony laws; harsher features of civil death ended w/ enactment of the US Constitution:

  • Bill of Attainder Clause → prohibited legislative act declaring a person/group guilty of crime/punishment w/out trial

  • Corruption of Blood Clause → prohibits Congress from cutting of inheritance from bloodline of person

“civil death” early versions

• most states, though, enacted attenuated versions of civil death

  • in early 19th century, many states enacted laws which stated a person sentenced to imprisonment for life is deemed “civilly dead”

  • other states applied this principle to people during the duration of their sentence

  • mostly focused on ability to use legal/political systems

• disenfranchisement from voting was preserved

  • became more widespread/scope broadened during Reconstruction — later 19th century

challenging “civil death”

• during mid-20th century, scholars/correctional associations began to call for legislation restoring rights after release

• conflict between civil disabilities/rehabilitation philosophy

• few states started offering automatic statutory restoration of rights, but pardons were common

• President’s Commission of Law Enforcement and Administration of Justice (1967) called for “wholesale reform of the system of disabilities/disqualifications” b/c it obstructed rehabilitation

collateral consequences expansion

• collateral consequences became less severe over time, particularly in the 1960s/70s, then expanded dramatically in the 1980s/90s

• state/local initiatives and US Congress incentivized states to introduced more collateral disabilities

• many states/federal government attached new collateral consequences to convictions, especially for drug offenses

examples of collateral consequences expansion

• benefits

  • 1996 Personal Responsibility/Work Opportunity Reconciliation Act (PRWORA)

    • prohibited individuals convicted of certain drug felony offenses from residing in public housing, receiving TANF, or SNAP

• education

  • 1988 Higher Education Act Amendments

    • amended to prohibit individuals w/ drug convictions from receiving federal aid for higher education

• housing

  • 1996 HUD “One Strike and You’re Out” Policy

    • public housing authorities can evict for drug/violent crimes

  • Anti-Drug Abuse Act of 1988

    • allow termination of tenancy in public housing for criminal activity on/near public housing

  • Cranson-Gonzalez National Affordable Housing Act of 1990

    • imposed mandatory 3-year ban on readmission for tenants evicted for drug-related activity

• s*x offender registries

  • 1994 Jacob Wetterling Crimes Against Children/S***lly Violent Offender Registration Act

    • required people of many s*x offenses to register as s*x offenders

• immigration

  • Anti-Terrorism/Effective Death Penalty Act (AEDPA) of 1996

    • limited relief from deportation for many non-citizens w/ convictions

  • Illegal Immigration Reform/Immigrant Responsibility Act (IIRIRA) of 1996

    • expanded conviction-based deportations by broadening removal of triggers/expanding removal authority

state laws

• new state laws imposed licensing restrictions in fields of healthcare, law, education and prohibited individuals w/ criminal records from working in certain government agencies/positions (vary by state)

  • ex: law enforcement, vulnerable populations

  • tightening of restrictions

  • these are more about the minutia/specific procedures of the laws

    • ex: licensure requirements, firearms access, etc.

• FL examples:

  • 1984 → law enforcement/COs must have no felony condition or misdemeanor involving perjury/false statements

  • 1995 → required agencies to conduct background checks/allowed disqualifications for jobs w/ vulnerable populations (children, people w/ disabilities, elderly)

timeline of collateral consequences policies

• Colonial Era → civil death imported but softened

• Reconstruction → Voter disenfranchisment explands

• 1950s-1970s → rehabilitation and move toward dialing back collateral consequences

• 1980s-1990s → tough on crime era and expansion of collateral consequences

• 2010s-2020s → reform era

collateral consequences policies research

• these tend to be oversimplified, but they’re not as simple as they may look/seem

• about 1 in 3 adults have some kind of criminal record (arrest, charges, or convictions); about 7%-15% of adult population has a felony conviction

• research generally suggests that formal collateral consequences are associated w/ worse re-entry conditions; in some areas, worse post-release outcomes (evidence uneven across domains; causal evidence is stronger for some policies than others)

  • access to public benefits can support economic/housing stability after release, especially for people w/ limited social support → may not have families other than help them w/ support

  • SNAP/food stamp bans may hasten return to arrest

  • public housing restrictions appear to undermine housing stability/may increase recidivism risk, but evidence is more mixed here

  • relationship between voting/recidivism is not fully settled, but civic participation generally associated w/ lower recidivism

• collateral consequences seem to make reintegration harder, recidivism evidence suggestive but mixed → many studies find increased recidivism, but causal evidence is underdeveloped

  • difficult to identify appropriate counterfactual

  • effects might be heterogenous (dependent upon personal/other environmental factors)

SORN laws

• Megan’s Law (1994) amended Jacob Wetterling Act to require public disclosure/notification → this makes it not just for law enforcement anymore

  • registration: register personal information w/ law enforcement authorities

  • notification: process by which public is informed of address/personal information

  • this law varies based on that state’s definitions of s*x offenses

• Adam Walsh Child Protection/Safety Act (AWA) sought to standardize SORN provisions w/ objective of creating a widespread national system (Title I called SORNA)

  • created tiered system/required in-person registration of resident, work, and school

    • Tier I varies by state; Tiers 2/3 are the more heinous crimes

  • currently only 17 states have successfully implemented provisions

  • this law was created because Megan’s Law was so varied

research on SORN laws/offenders

• s*x offenders are more likely than (non) s*x-offenders to commit a s*x crime upon release; however, non s*x-offenders account for majority of s*x-crime recidivism

• what type of s*x offended should SORN help prevent?

• SORN laws may increase challenged during reintegration (e.g. securing housing, employment, even victimization)

• overall, no strong evidence for effect of SORN laws on recidivism

private sector background checks

• since 1997, states increasingly put criminal behavior history records online, which lowered cost/expanded scope of background checks

  • estimates suggest vast majority of employers seek background checks for at least some of their hires (>90%)

• employers concerned about work performance, general trustworthiness, legal liability, want to ensure a safe work environment for other employees

criminal history/employment research

• outside of instrumental-rational concerns, potential role of stigma

• audit studies (fake applications) find criminal records reduce likelihood of call-backs/employment AND may do so differently by race

• employers may be strongly influenced by “positive credentials” (e.g. earning degree in prison, reference letter)

• idea that prior record predicts poor job performance generally not supported; some studies find (modest) job-specific differences in misconduct

political context/collateral consequences reform

• growing focus on “prisoner re-entry” in mid-2000s

  • Bush 2004 State of the Union Address → “land of second chances”

• bipartisan/more pragmatic than ideological — some general agreement around need to reduce barriers to successful re-entry

  • Obama held first National Reentry Week in 2016

  • WH proclaimed April 2018 as Second Chance month

    • initiative embraced by both parties at federal/state level and burdens of policy groups/business organizations

    • US Commission of Civil Rights (2019) issued report that identified collateral consequences as an obstacle to reintegration that creates burdens for families/society; need to tailor consequences to public safety goals

national inventory of collateral consequences of convictions

• Court Security Improvement Act of 2007 — directed NIJ to conduct study to determine/compile collateral consequences:

  • nearly 45k statues/regulations, vast majority at state level

  • ~20k mandatory/automatic

  • ~6k for misdemeanor offenses

  • nearly ~20k restrictions that are lifetime

• underscored breadth/variety of collateral consequences

attempted constitutional changes

• Ex Post Facto Clause — prohibiting retroactive punishments

  • can’t punish for something that was done in the past under current policy changes

• 8th Amendment — prohibiting cruel/unusual punishment

• Double Jeopardy Clause — prohibiting multiple punishments for the same offense

• why have these failed?

  • ****courts routinely deem collateral consequences as a civil thing and not a criminal one****

collateral consequences reform main areas

• ban-the-box

• bans on government benefits

• felon disenfranchisement

• occupational licensing

• criminal record clearance

ban-the-box

• delays consideration of record until later in the hiring process

• Fair Chance to Compete for Jobs Act (FCA)/known as this in federal took effect in December 2021

• 15 states have extended ban-the-box to private employment

• mixed evidence that this helps

• major problem w/ this policy?

  • those stereotyped will be most likely to suffer from this/be most affected

    • ex: young Black men will be discriminated against due to the presumption of a criminal record

    • ex: older people, women may more likely benefit from this

eliminating/modifying bans on government benefits

• most restrictions on federal student aid have been lifted/reduced in recent years

  • no longer blanket ban on student aid for drug convictions (2021)

  • pell grants sometimes available for incarcerated students enrolled in educational programs (2023)

• many states have removed/modified some collateral consequences from felony drug convictions, such as SNAP/TANF

felon disenfranchisement

• Florida push-and-pull

  • more than 60% of voters approved Amendment 4 in 2018: ballot initiative aimed at restoring rights to individuals convicted of most felonies (excluding murder/s***al offenses)

  • 2019: state legislature enacted laws that interpreted amendment to require payment of all outstanding fees, fines, restitutions

    • estimated 79% of Floridians w/ past felony convictions owe at least $500

occupational licensing

• roughly ¼ of US workers are employed in licensed occupations

  • health professionals, legal professions, education, protective-service roles, high-risk systems

• since 2015, at least 39 states have eased/eliminated licensing barriers in different ways:

  • cannot deny license unless record is “directly related” to license

  • allow petition of licensing board at any time to determine whether record would be disqualifying in advance

  • blocks boards from denying licenses based upon “good character” or “moral turpitude”

criminal record clearance

• also called relief

• surge in legislation aimed at opportunities to expunge, seal, or set aside criminal records

  • relief for at least some felony convictions in 43 states, for many misdemeanors in 47, and more most non conviction records in all 50

• court petition required, subject to prosecutorial review/judicial discretion

  • generally, requires passage of specific period of time/may include additional requirements (e.g. restitution, completion of treatment)

  • sometimes may also need to pay all fees/fines before clearance

• problems → only 10% of those eligible for relief actually receive it

reform effort critiques

• evidence-based movement will result in little aggregate improvement unless it’s accompanied by comparable focus on systems-level reforms

  • not individual/all affect each other

  • cj subsystems + improving coordination of the subsystems

  • watching how they all affect each other/change performance of other subsystems

contours of systems-level reform

• part of Mears (2022) article

  • institutionalized research into policymaking/decision-making

  • creating centralized oversight agency for coordinating/evaluating criminal justice

  • ensuring continuous evaluation of system/subsystem performance/outcomes

  • relying on multiple outcomes to assess system/subsystem effectiveness

  • using evaluation hierarchy to inform system/subsystem decision-making

Mears (2022) reading

• many causes of crime/injustice

• government responses are “piecemeal”

• efforts highly politicized and cannot, by design, comprehensively address crime/justice problems

• to what extent can these subsystems solve crime/injustice?

  • repeated efforts to try to improve cj system

• no agency exists to organize subsystem efforts

• suggestions for evidence-based policies not focused on just one main area

  • inefficient approach if you just continuously focus on one thing

  • limited effort b/c of the fact that it’s hard to focus on multiple things at once

criticisms of victim involvement

• inconsistencies w/ principles of justice

  • might put pressure on professionals to make certain choices/compromise neutrality

• burdens cj system

  • complicates, slows process down, logistical elements

• undermines utilitarian goals of punishment

  • having not a good effect

  • might undermine the methods of crime control

Payne v. Tennessee (1991)

• victim impact statements are constitutional in death penalty cases

  • when determining whether to sentence someone to death

Roberts (2009) article

• argument about victim input in sentencing vs. parole

  • victim input doesn’t affect sentencing much, but it does affect parole more

Wemmer (2009) article

• abolitionism framework of restorative justice

  • restorative justice needs to be implemented in some way in order to make victims belong again

  • organizes three frameworks of restorative justice

    • abolitionism → most extreme one

      • victims should have ownership of the offenses rather than the state/government

        • treating criminal offense in a civil manner (similar/same way we handle civil courts)

    • add restorative justice practices to cj

    • integrate restorative justice values into cj system

perspective of analysis

• specific step to cost-benefit evaluations

  • why it’s important to know this step

    • who is this cost-benefit evaluation for? society? agency/organization?

    • will determine which costs and benefits count

      • ex: society → costs and benefits that affect society at-large

      • ex: FLDOC → costs and benefits that are relevant to them as an organization

1996 Personal Responsibility and Work Opportunity Reconciliation Act

• prohibited individuals convicted of certain drug felony offenses from residing in public housing, receiving TANF or SNAP

discount rates

• rates you use to convert future costs and benefits into today’s dollars, because money today is worth more than money later