The New Deterrent?

Yesterday, I scoffed about the possibility that EU conditionality was all that important in the arrest of Ratko Mladic, even though the EU re-issued some threats quite recently.  Today, I scoff at the impact of the arrest.

The NYT editorial: "The arrest should be a warning to other butchers that they, too, will be caught and held to account, no matter how long it takes."

Um, about sixteen years after the fact? If one knows that one will be captured almost two decades after the crime, will that serve to deter?  This is especially questionable for middle-aged folks, as Mladic is now, apparently, far more impaired by health than by prison.  Heart attacks and strokes (too much fatty food while on the "run"?) have proved to be more punishing than the international community.

Sixteen years? Political scientists tend to assume that folks focus on the short term, not the long term.  I am pretty sure 16 years is the long term, and Keynes was right about what happens in the long run.

The funny thing is I am pretty sure that if we dig up enough NYT editorials, we might find one or more on how the US death penalty is not a deterrent precisely because it takes so long. 

I am not saying that picking up Mladic is a bad thing.  Not at all.  I am just saying we should not exaggerate how it will impact future genocidal types, who themselves are not known for engaging in long-term utility calculations.

Conditionality Works?!

With Serbia arresting the last big PIFWC (person indicted for war crime--my favorite NATO acronym)--Ratko Mladic (see my post about the previous arrest, of Karadzic), does this mean that I was wrong about the power of conditionality?  That is, the Steve and Bill book argues that we ought not overestimate the threats organizations like the European Union or NATO make about conditions for membership.  We argue there and elsewhere that the requirements are unenforced (Cyprus gets in despite not settling its ethnic problems, Romania and Bulgaria get in with their shaky rule of law); that the rules do not apply to members so that once you are in, you can go back to violating the rules; and so on.

But Serbia seems to have knuckled under to EU pressure and will be sending Mladic to The Hague stand trial for genocide, ethnic cleansing and all the rest.  But the pressure has been applied since 1995.  Can we say that conditionality worked if it took 16 years?  Oh, and enlargement is probably not a realistic option right now since the EU is focused on its own internal crises (driven by past poor decisions about ignoring conditions--letting Greece and others into the Euro zone).  So, the timing here is interesting--submitting to the PIFWC conditions when the conditions are least relevant, as opposed to earlier when other countries were in the queue to join the EU (despite not meeting other conditions).

I have not been following Serbia's politics closely, but this is still a very important decision, whether it is to suck up to the EU or not.  After all, a preceding leader of Serbia, Zoran Djindjić, was assassinated after sending Slobodan Milosevic to the Hague.  So, the stakes are quite high domestically.  Mladic was reputedly more popular than Karadzic, especially among Serbia's military and police.  If there are no nasty consequences from this, then this is an important development for civilian control of the military and Serbia's democratization.

Getting Mladic to stand trial for his crimes is a big victory for Bosnia, for Serbia, and for justice.  I just am not sure that the EU had a lot to do with it.

Update:  For one take by an expert.

You Have The Right to What, Eh?

Not to a lawyer in Canada apparently.  You have the right to an attorney, to call one after being arrested, to consult with one, but you do not have the right to have one present while being questioned.  Given what we know about coercion and confessions, this decision is deeply troubling. 

The judges were ruling in three separate cases in which suspects had asked in mid-interrogation to speak to their lawyers again.  They said that suspects should be allowed to consult again with a lawyer only if something happens in the interrogation room to change their situation dramatically.

Remind me not to get arrested in Canada.  We already know that people will confess after long hours of interrogation, but this does not produce justice.  Well, that is if justice means getting the right person as opposed to getting just anyone. 

I look forward to my more legally-educated colleagues to rant about this decision, as I am no expert on the law.  But I think I am in good company in thinking that this ruling stinks. 

The Cost of Justice

Interesting new policy in Missouri--judges get info on the costs of different sentences.  Prosecutors do not like it:

“Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the prosecuting attorney for St. Louis County.

Isn't it though?  Having relatively fixed terms for different kinds of crimes, that is mandatory sentencing, is using math to calculate justice, right?  Ah, but prosecutors like math when it reduces the discretion of judges, and hate it when it might actually cause some judges to consider the bigger picture. 

It is becoming increasingly clear that putting people away is a very costly activity for states.  Even the Governator has figured out that it is bad for California that more $$ go to prisons than to higher education (pushing for a constitutional amendment to limit prison spending to less than higher ed).

To be clear, this does not seem to be new.  I had a relative (an ex-relative now, thankfully) who kept on breaking the law and kept getting no prison time or little prison time because it was/is a recession and the state didn't want to spend money on putting his ass in jail.  It was clearly not about justice or protecting the public (since one of his repeated crimes involved DUI), but about spending the money on this loser.

The policy, imposed by a commission of lawyers, judges and other folks, produced this:

The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.

Using data to make decisions?  Why do that?  Information could only serve as an obstacle to ignorance.  Of course, the legislature of Missouri created this commission precisely so that decisions would be out of their hands.  If a commission makes things easier for criminals (and any effort to reduce prison populations will likely benefit the innocent and the guilty), the politicians can blame them, rather than taking the heat.  Standard legislative practice--like the military base closing commission.

Overall, this seems like a good idea to me.  Using information to make decisions is better than the alternative of using no information to make decisions.

Justice Meets Science, Justice Loses

The more we know about stuff, the less confident we can have in past decisions in the courts.  DNA has revolutionized the courts, so that we can rule people in and out pretty effectively revealing past miscarriages of justice.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

So, we have people--the mentally ill or impaired, kids, the pressured--confessing to crimes they did not commit.  And they do so believably because the facts of the crime enter the conversation via the police during the interrogation.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

 This again reminds of the disparate outcomes in the US justice system, that whites do far better than African-Americans and that the race of the victims matter a great deal.  We now have some more info to understand these outcomes, as the police might just press suspects more in such situations than white on white or black on black crimes.  And this is where the wealth of the suspect matters as well--defense attorneys that cost $$ are probably going to be better armed to prevent or undermine a confession than a public attorney.  Especially in a place like Texas where the attorneys used to be (and perhaps still are?) appointed by judges who took campaign contributions from the aforementioned attorneys (even Lee Child, the novelist, found this problematic in one of his books).*

Gee, I wonder what would have happened if they had DNA evidence for the OJ trial.  Oh, they did?  Never mind. 

DNA is not a panacea:

Proving innocence after a confession, however, is rare. Eight of the defendants in Professor Garrett’s study had actually been cleared by DNA evidence before trial, but the courts convicted them anyway.

Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent.
“You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”

The key, of course, is getting representation before interrogation is underway.  And another key is better information like this piece about the reality that confessions may not be that much more reliable than witnesses.

The most important lesson: invest in social science--it can save lives.  Ok, that was self-serving but true nonetheless.




*  Indeed, I knew that GW Bush was severely flawed when I found out he vetoed a bill that would have changed how Texas picked its public defenders so you would not have folks who fell asleep in court and put up sham defenses when awake.

Who Says Research Does Not Matter

Check out lil' Steve and his take on judges and elections. He is citing some other stuff, but he does it better than I would. Short summary: electing judges bad.