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Let's talk about the criminal justice system and how it really
works. And
remember Aldous Huxley's preface to Brave New World: "Ye shall
know the
truth, and the truth shall make you mad."
I think most people have some assumptions about how the system
works. For
example, a guy is put on probation the first time he's convicted
of a serious
offense, but the next time, it's a certain prison sentence. A person
commits
a crime, the police investigate it, find evidence that John Q. Badguy
did it,
they arrest him, soon afterward he goes to trial, the prosecutor
puts the
police on the stand, the judge or jury weighs the evidence and finds
Mr.
Badguy guilty, the judge gives him a lecture, and off to prison
he goes,
fully aware that this trip is a direct result of his offense. And
if there
are many more serious offenses, he's sent away for a long, long
time, maybe
life.
To save time, I've put together a composite case history. Many
criminal
histories are different in some respects, but this is more typical
than you'd
like to believe. But let me ask a favor:
If you've had advanced training in psychology, as I talk about
this
hypothetical but typical case, go over in your mind what you learned
about
classical and instrumental conditioning. Think particularly about
matters
such as the principles of contiguity, desensitization, habit formation
(or
"practice"), about the most effective punishment schedules,
and about hardest
to extinguish reinforcement schedules. Think about social learning
theory,
and high-power, high-status models. Think about some of those cognitive
principles you learned, such as the effect of an event being dependent
on
your perception of the event. And please bear with me while I add
some
parenthetical explanations for the benefit of readers without such
esoteric
knowledge.
If you have not had advanced training in psychology, please read
over the
indented explanations of some learning principles. I'll try to keep
them
simple and give some real world examples. A basic grasp of these
is
important to enable you to understand how your tax dollars are being
used to
create an ever-spiraling crime problem.
 I'll refer to this hypothetical troublemaker by his "street
name," Chainsaw.
That was the actual street name of a man I examined a few years
ago. For
some reason he didn't want it mentioned in our report to the judge.
Chainsaw was arrested the first time at age fifteen for shoplifting.
He was
very frightened, actually shaking, when taken to the police station.
He was
held about 45 minutes, until his mother could come pick him up.
He got a
scolding from her, and promised he'd never do it again.
"DESENSITIZATION." Say you're afraid of heights. A psychologist
holds
your hand and teaches you to relax as you go through increasingly
challenging
acts, from standing on a chair to looking down from the roof of
a skyscraper.
What was terrifying before now seems slightly tense at worst. Undesirable
desensitization has begun for Chainsaw. That socially useful fear
of
punishment for an offense is starting to erode.
The next morning it amazed him to remember how scared he had been,
because in
retrospect the arrest hadn't been a big deal. In school, some other
kids
who'd been arrested joked and compared notes with him, and a few
others were
impressed how "cool" he was about it. He'd had friends
before, but now he
was "in."
REINFORCEMENT. Unless you want me to get very technical on this,
you can
just think of it as a reward, of sorts. Not only did no real PUNISHMENT
occur, he finds an increase in his social status. Any psychology
undergraduate student should know this makes it more likely that
the same or
similar behavior will occur again.
In the next year he was arrested twice more, once for more shoplifting,
and
once for possession of marihuana. Both times were so-called station
adjustments. The year after that he was arrested for riding in a
stolen car,
but was released immediately on an I-Bond. ("I" for identification;
the
defendant is released without putting up any money.) The case was
dismissed
on his first appearance in court. Not serious enough to take up
the judge's
valuable time.
More about REINFORCEMENT and PUNISHMENT: Simple concept. You do
something, and the positive outcome outweighs any negative outcome
(punishment). This makes it more likely you will do the same thing,
or
something similar, again. We say that the behavior has been "reinforced."
The more times an act has been done and reinforced, the more likely
it is to
continue occurring. If you assume there's some payoff in possessing
marihuana, getting merchandise without paying for it, and riding
in stolen
cars, we can say that from Chainsaw's perspective, lawbreaking is
being
continually reinforced and only minimally punished, if at all.
At age 18, Chainsaw and some buddies got caught for committing
a few
burglaries. Chainsaw felt at home in the precinct station by now,
and he
reminded the officers to read him his Miranda rights. Again he got
an
I-Bond. He appeared in court six times over the next eight months,
until his
public defender told him that the states' attorney was willing to
recommend
"supervision" if Chainsaw would plead guilty instead of
demanding trial. He
was sentenced to a year's probation with no condition except that
he not
commit any more crimes.
HABIT FORMATION: Well, you know what that means. You do something
repeatedly, and it becomes increasingly likely that you'll continue,
even
after the reinforcement is diminished and/or punishment increased.
That's
one reason it's so hard to quit smoking: By the time you become
convinced
it's killing you, you've been lighting up ten to sixty times a day
for years.
That's why drug addicts report it's easier to stop cocaine or heroin,
even
though, physically, these are more addicting. Too often we fail
to take
criminal behavior seriously until it has become habitual. By then
it's much
more difficult--and expensive--to change.
Before the probation was over, he was arrested for battery, having
punched a
store clerk he didn't think was waiting on him fast enough. He spent
three
days in the county jail before putting up $100 of his $1000 bond.
When he
went to court, the decision was "BF/SOL," bond forfeiture,
stricken on leave.
In other words, Chainsaw was to forget about getting his $100 back,
in
return for charges being dropped. Because the charge was dropped,
his
probation was considered successfully served.
At age 19, Chainsaw was arrested for rape, which he vehemently
denied doing.
Another young man, who had been charged in a drug sale, said he
could
identify the rapist if his own charges were dropped. His evidence
was that
he had heard "rumors around the neighborhood" that Chainsaw
had done it.
Police in the precinct were under some pressure to get the case
closed
because the victim was an alderman's sister, they knew Chainsaw
by now, and
the woman had said she couldn't identify her attacker. After he
denied any
involvement in the rape, he was held in the precinct lockup for
two days, and
questioned around the clock. Twice he asked to call a lawyer, and
was
answered with a punch to the stomach. On the third day he was handcuffed
to
a hot radiator in a position that prevented him sitting down. After
several
hours of this, Chainsaw agreed to tell an officer "what really
happened."
As one officer took notes, another said "you first saw the
victim at the
Paradise Liquor Store, didn't you?" and so on. The police report
read "At 12
noon, Mr. Chainsaw asked to speak to an officer again, stated that
his
conscience was bothering him, and that he wanted to tell the truth.
He was
again advised of his constitutional rights, and waiving his right
to legal
counsel, said he wanted to make a statement. He explained that he
had first
seen the victim at the Paradise Liquor Store..."
An assistant states' attorney came to the precinct, and Chainsaw
gave a
"voluntary" statement with two of the police officers
standing behind him.
Among other contents, the statement quoted Chainsaw as saying that
he had
been treated well by the police, had not been coerced in any way,
had been
given a hamburger and Pepsi, and had been allowed to use the bathroom
on
request.
 MODELING AND IMITATION: People in power serve as models of behavior
and
attitude, even if you hate what they're doing to you. The more powerful
the
model, the more likely you are to follow his or her example. Most
people,
even most psychologists, can't begin to imagine how powerful police
and
correctional officers appear to prisoners. Those who lie and cheat
to
accomplish their ends, who abuse and even brutalize prisoners, only
serve to
galvanize the criminal thinking patterns of their prisoners.
Bond was set at $100,000, meaning it would take "$10,000 to
walk" as they
say, more than his family or friends could raise. He had never been
confined
for more than a few days, so he was eager to go to trial. His public
defender (PD) told him, however, that the judge had threatened to
give him
twenty years if he insisted on trial now. He repeatedly asked for
a
conference with his PD, but never got more than a two-minute conversation
in
the courtroom's security holding area.
There were more than ten continuances over the period of a year.
The PD was
telling him the states' attorney would settle for a sentence of
eight to ten
years if he would enter a guilty plea, but he refused because older
prisoners
advised him "tell 'em they gotta do better than that."
Finally, 18 months after his arrest, the PD brought him the news
that the
states attorney would accept a sentence of three years, and the
judge had
agreed, if Chainsaw would plead guilty to a reduced charge of criminal
sexual
abuse instead of aggravated criminal sexual assault. Chainsaw protested
"but
I didn't do it," and the PD responded that the judge wasn't
going to believe
that since prosecutors had a confession. Furthermore, he could wait
another
year before going to trial and still risk a long prison sentence,
but if he
took the plea bargain, he'd be free in a couple of months. He reluctantly
agreed, took the sentence, was sent to Joliet, and was released
on parole
three months later. He was released with $50 cash and a bus ticket
to his
home town.
Now 21 years of age, Chainsaw was angry at having been convicted
of something
he didn't do, promised himself he'd never be without money for a
private
attorney again, and started looking for a job. He had only two years
of high
school, though, didn't read well, and now had a serious felony record,
so
getting and keeping a job wasn't easy, especially since he had no
experience
in such matters as keeping regular schedules and working diligently
to earn a
paycheck.
Still on parole, Chainsaw, who had been only an intermittent drug
user
before, started to use crack, which depleted his limited funds quickly.
One
Saturday night he had an opportunity to help an acquaintance rob
a licquor
store. It was a successful heist, and in ten minutes Chainsaw had
made over
$300. He gave his partner in crime $75 of his share for a .38 revolver
the
latter had stolen in a burglary. Even after buying more crack, Chainsaw
still had money in his pocket for the first time in years.
This is another principle of REINFORCEMENT. The magnitude of the
reward
in relation to the effort required, minus the punishment expected,
determines
the effectiveness of the reinforcement, i.e., how likely you are
to continue
this particular act. The magnitude of the reward is, in turn, largely
dependent on the intensity of the DRIVE (or "need") it
satisfies. Quick
money is more reinforcing if you're feeling a strong need and see
no
reasonable alternatives for satisfying it. We can say that Chainsaw's
predicament is his own fault, but it's society that's going to suffer
because
he had no other means of satisfying even basic needs.
For the next several months, he did an average of one armed robbery
a week,
sometimes alone, sometimes with a partner. Eventually he was caught
in the
act, arrested, and charged. The police connected him to two of the
other
robberies, and he confessed to all three. Again, bond was set at
$100,000,
and again he went to the county jail to await trial. He knew the
ropes
there, now, and quickly settled into a relatively comfortable existence.
He
learned which officers were likely to beat prisoners when they were
in a bad
mood, and which ones he could shmooze with.
A younger, weaker prisoner was afraid of being sexually assaulted.
This man
had several hundred dollars in his commissary fund, and in return
for
protection he agreed to share with Chainsaw his weekly cigaret and
candy
supply, in addition to the drugs that one of the officers occasionally
smuggled in for him.
Chainsaw was worried about his case, though, knowing with a felony
record he
could get ten years or more on each count, to be served consecutively.
Three
witnesses were available to testify against him. He was now the
one who
wanted the continuances, hoping with the passage of time their testimony
would become less credible. Although prison is a better place to
serve time
than a county jail, he knew every day he waited for trial would
count toward
his sentence, and the hope of getting a lighter sentence was worth
the delay.
As he hoped, the case against him became much weaker. One of the
witnesses
against him died, and another moved and couldn't be found. Now there
was
only one witness and his confession. He was aware, and knew the
judge would
be aware, that confessions were often coerced. He had also learned
that the
validity of the confession could be attacked in court.
After more than two years, Chainsaw made a deal. The judge on the
armed
robbery charges would accept a plea of guilty on one count and dismiss
the
others, and the other judge for his aggravated battery case had
agreed not to
give him additional time for parole violation. The sentence was
five years;
with Illinois' policy at that time of "day-for-day," Chainsaw
would be free
again in about eleven months. He told his cellmate, "[W]ho
says you can't
beat the system? All you need is patience."
PERCEPTION determines the effect of an event. Many people pay
$2.00 for
a carnival game to get a prize worth 50¢, because they perceive
themselves as
winning the game. Logically, Chainsaw should consider all the time
he's lost
sitting in jail, but after two years of this bargaining game, he
feels like
he's won.
PROXIMITY OF OUTCOME or CONTIGUITY is another principle at work.
Even a
fairly short prison sentence imposed as soon as possible after the
offense
and arrest, has more of a corrective impact than a longer sentence
handed
down when the offense is a distant memory. The principle is the
same if
you're trying to teach your dog not to pee on the carpet. A swat
with a
newspaper, or a loud rebuke, immediately after he or she is caught
in the
act, will do more to keep your carpet dry than anything you can
impose a day
later. So, even if Chainsaw felt really rotten about his sentence,
it came
too late to have much of behavior-altering effect. This Stall-and-Deal
game
makes it virtually impossible for our criminal justice system to
actually
deter crime!
Still in his mid-20s, Chainsaw was out on parole again, now with
three felony
convictions. He served out his 30 months of parole easily; although
there
were several more arrests for minor charges, his parole officer
had a heavy
caseload and gave Chainsaw plenty of slack. It was still hard to
find and
keep a job, but he managed to get a live-in arrangement with a young
woman
with two small children, who had a job and got child support payments.
Life
was tolerably comfortable, the girlfriend was grateful to have help
with her
children, and even more grateful when Chainsaw occasionally contributed
a few
dollars to the household. He kept his drug use to a minimum.
Chainsaw completed his parole. By then, he and the girlfriend were
having
problems, though. Her children were getting old enough to disobey,
and
Chainsaw was impatient with them. The police were called after one
domestic
fight, and Chainsaw moved out to a homeless shelter. Within a week
he had
gotten a gun, pulled a couple of small robberies, and started using
crack
again rather regularly. Through a dealer he met a lower-level distributor,
and soon had a new career in the drug sales field. Without too much
strain
he could make $500 or more a week, but now he was a potential robbery
victim
for anyone wanting a free drug supply, and he carried his gun around
the
clock.
With his new level of affluence he began dating an attractive young
woman he
met in his work; her steady boyfriend was an attorney and a regular
customer
for cocaine. She dropped the boyfriend and took an apartment with
Chainsaw.
Some months later she ran into the boyfriend, who called her a whore
and
slapped her. She told Chainsaw of this, and observed that if she
really was
his woman, it was his job to do something about it. It didn't take
long for
Chainsaw to learn from other dealers where the boyfriend lived,
and three
days later the boyfriend, who incidentally also had a wife and kids,
was dead
from a gunshot wound.
A friend was able to tell police where the dead man had bought
cocaine, and a
canvass of that area turned up the former girlfriend's name, and
one of her
acquaintances told the police of her altercation with the old boyfriend.
She
was questioned about this, and admitted to the police that she had
told
Chainsaw about it. He was arrested and charged, and other evidence
gathered
by the detectives made a tight murder case against him.
He was examined by a court psychologist because a public defender
was hoping
for some kind of insanity defense; once you're charged with murder,
you get a
whole different breed of public defender from the "murder task
force," and
now they really do fight your case. Chainsaw was poised, relaxed,
and
confident. He knew that he was unlikely to get more than thirty
years, and
could probably hold out for fifteen, or twenty at most. He wasn't
afraid of
prison, he said, and while he did not exactly deny the killing,
refused to
acknowledge his guilt, as was his right, and recited all of the
reasons that
the states' case was weak.
By now it should be obvious that Chainsaw isn't very salvageable.
Maybe he
still wouldn't be if the system had done everything right, but
perhaps
there'd be a chance. As it is, we did almost everything wrong,
and in the
process, we violated, I say "we" because it's our system,
you and I pay for
it -- we violated just about every basic behavioral principle that
any
undergraduate psychology major should know by heart. And remember,
while
this is not an actual case, it's really a composite, a rather typical
case
history.
There were opportunities to attempt early intervention. Instead,
we
desensitized Chainsaw to arrest and incarceration. Only when the
criminal
pattern was well established did we start administering serious
punishment.
As I discussed with you previously, police and correctional officers
are
powerful role models. What was modeled for Chainsaw was use of power
to
break rules for your own purposes.
In the process of doing that, we helped prevent any link in his
own mind
between criminal behavior and outcome. How many times did he walk
free when
he had broken the law? Yet he wound up with a conviction for something
he
did not do.
We further prevented that link by violating the principle of contiguity.
When Chainsaw did get a sentence for something he'd done, the offense
was in
the remote past, and what was more linked to the punishment was
his
interaction with court personnel. I've heard hundreds of statements
from
defendants that demonstrate that effect:
"If I had it to do over, I'd never have signed a confession."
"I should have insisted on a different public defender."
"From now on I keep a lawyer on retainer so I can put up
a real defense."
"I'll wait longer before working out a deal next time."
And the actual sentence that he got for armed robbery did not even
feel much
like punishment. Sure, he lost, but by then it didn't feel like
a loss.
Remember that the effect an event has depends on your perception
of that
event?
When we dumped Chainsaw back on the streets with no resources,
we put him in
a position where he didn't have much to lose. Of course armed robbery
is
stupid; why commit a crime that could cost ten years of your life,
that will
only make you enough money to live on for a week or so? But with
the options
Chainsaw had, getting a pocketful of money in a matter of minutes
would have
felt like the answer to all his problems. Robbery was immediately
and highly
reinforcing, and our system certainly was ineffective at any
counterconditioning. Should I go on?
Let me sum it up this way, and you can call it hyperbole if you
wish: If
someone hired me as a behavioral scientist to design a criminal
justice
system to discourage respect for the law, and encourage criminal
behavior, I
couldn't make many improvements!
Please don't think I'm throwing rocks at the judges, PD's and prosecutors.
They do have enormous backlogs of cases. In effect, the system is
in
gridlock, and without a major shifting of priorities, they can't
handle
things much differently than they do. And since they are not trained
behavioral scientists, they can be forgiven for not seeing the flaws
in the
system. Probation and parole officers are overworked and underpaid,
and
certainly undertrained.
I don't entirely blame abusive police and correctional officers.
We love the
tough guy image, and since we dehumanize criminals, convince ourselves
that
anything they do is justified. And dedicated police officers do
become
discouraged quickly. The psychopath in uniform is more likely to
stay on the
job than the honest, decent cop who really wants to make a difference.
It's not only the criminal justice system that's grown into a
counter-productive, money-gobbling monster. Our social attitudes
are major
contributors. Did you ever think about the fact that some 30% of
convicted
criminals don't recidivate? We seem to have the idea that alcoholics
make
the best alcoholism counselors. Doesn't it make sense that rehabilitated
criminals would be the most effective at rehabilitation counseling?
But
because of our hypocritical prejudice against anyone who has ever
been
convicted of a crime, these people learn to stay in the closet.
That attitude is unique to the U.S., in my experience. When I've
told my
friends from other countries of my early criminal activities, the
usual
response is a yawn.
In this chapter I haven't hit you with statistics and references,
but
hopefully you grasp the basic truth I'm trying to convey: The system
doesn't
work. In its present form, it can't work. And building more prisons,
handing down longer sentences, won't fix it.
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