Criminological Highlights Vol. 4, No. 6 – April 2002

View this issue as a PDF: CrimHighlightsV4N6.pdf

This issue of Criminological Highlights addresses the following questions:

1. Can judges influence court efficiency?
2. Do lawyers make a difference to case outcome and court efficiency?
3. Should the “rule of law” always determine the way in which prison officers carry out their work?
4. Has the shine come off state policies in the U.S. favouring high incarceration rates?
5. Does a youth’s involvement with the criminal justice system affect the parenting which he or she subsequently receives?
6. Why can’t we predict serious school violence?
7. Does “risk” really determine whether a suspect will be released on bail?
8. Is some intimate violence actually a dyadic process requiring intervention for both partners instead of simply the offender?

Adjournments in court appear to have more to do with “court culture” than with the case itself.  If judges create a culture in which court adjournments are permitted, these delays will inevitably occur.  If they want cases to be dealt with quickly and efficiently, that, too, is within their power.

Background: Adjournments - requested by either party in a court case - can be important in that they interfere with the efficient resolution of disputes. In criminal trials, adjournments can not only impact the accused but also constitute an inconvenience for victims and other witnesses.  Some adjournments are clearly necessary. Studies of court delay have identified certain predictable factors associated with case processing speed (e.g., case complexity, strength of evidence, plea decisions). However, these studies also show variation in case processing times between courts that cannot be explained by these structural factors.

This study examines the importance of “court culture” – “beliefs and practices shared by personnel, such as judges, solicitors and clerks, working in a particular court” (p. 43) - in four Scottish Sheriff’s Courts in 1999-2001. In the context of adjournments, it is suggested that court culture includes “shared views about ways of doing things (such as what constitutes an acceptable speed of case processing) and shared expectations and norms (such as solicitors’ expectations regarding the likely judicial response to an adjournment request)” (p. 43). 

The basic findings are easy to describe. One of the courts was dramatically different from the other three. In “Court D”, 7% of the cases were adjourned on the day that trial was set. The average for Courts A, B, and C was 31% (range: 28-33%).  The judge has the power to adjourn or refuse to adjourn a case “in the interests of justice” (p. 47). In Courts A, B & C, requests for adjournments were rarely questioned and seldom opposed. Judges intervened only if the adjournment requests were disputed. There was an expectation that the first trial date would be adjourned. Adjournments were often agreed to in advance by the lawyers and presented to the court as “a done deal” (p.48). Conversely, judges in Court D asked for reasons as to why an adjournment was being requested, even if the adjournment was not opposed by the lawyer on the other side. These judges, who are described as working closely with one another, indicate that they try to deal with as many cases as possible and see adjournments as impediments to this goal. Lawyers indicated that they had to “work in a different way in order to cope with the court culture in Court D” (p. 50). 

Conclusion: Court culture – shared expectations about how things should work – clearly can affect the efficiency of the criminal justice system. “Something can be done to prevent unnecessary adjournments and the power to effect change lies primarily with judges … The prevailing culture [in these four courts] was not ‘shared’ as such but was judge-led… [supporting] the conclusion … that the attitude of judges is critical in setting court culture” (p. 51). “The incidence of unnecessary adjournments can be lessened by a willingness on the part of judges to question both disputed and undisputed adjournment requests more thoroughly” (p. 52).  Judges, it would seem, can lead the way toward more effective court processes, but only if they wish to do so.

Reference:  Leverick, Fiona and Peter Duff. (2002). Court Culture and Adjournments in Criminal Cases: A Tale of Four Courts.  Criminal Law Review, 39-52.

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Providing lawyers to indigent tenants in landlord-tenant disputes helped keep the clients from being evicted.  Further, having a lawyer did not result in additional court time.

Background. Although it is often assumed that having a lawyer in simple disputes will benefit a client, there is little evidence that this is actually the case. In landlord-tenant disputes in New York, landlords are typically represented, but tenants are not (78% of landlords but only 21% of tenants in one study were found to have lawyers in housing court).  

This study examined the impact of providing free lawyers to indigent tenants in housing court where it was believed that the tenant would be likely to be evicted.  Needy tenants were randomly assigned to receive legal advice (full representation or legal assistance). Control clients were told that it was unfortunately not possible to provide help. “Treatment” clients were provided either with a lawyer or legal assistance and/or advice. In actuality, most (56%) of the “treatment” clients were provided with lawyers. Only 4% of the control clients ended up retaining their own lawyers.

The findings were clear:

• “Treatment” clients were considerably less likely to be evicted than “control” clients (32% vs. 52%).
• Rent abatements were more common among treatment clients than those in the control group (19% vs. 3%).
• Landlords were more likely to be ordered to provide repairs to the dwellings occupied by treatment clients (46% vs. 28%).
• Tenants with lawyers/legal advice were less likely to have judgments made against them (32% vs. 52%).
• Tenants with lawyers were less likely to default or not appear in court (16% vs. 28%).

This last finding is important in that it suggests that part of the benefit of a lawyer is to organize the case in such a way as to convince tenants that they have a chance of winning. As a result, they may be more likely to follow through with the process. Further, the provision of a lawyer to poor clients did not place additional burdens on the court. 

• There were no significant differences in the number of court appearances.
• The number of motions filed was unaffected by providing the client with a lawyer.
• There were fewer post-judgment motions filed in cases in which tenants had lawyers.
• However, cases with lawyers took longer, on average, to complete the court process (111 days vs. 82 days). 

Conclusion. In this random assignment study of the impact of lawyers, it appears that clients with lawyers had better outcomes with very few negative effects on court efficiency. Although cases took longer to complete if they had a lawyer, this cost needs to be balanced against the fact that without lawyers, clients clearly are not getting the results which they deserve. Judges in this particular court “have a reputation for fairness and for providing guidance” (p. 430) to unrepresented clients. Clearly, however, even a sympathetic judge cannot assure a fair outcome to an unrepresented client.

Reference: Seron, Carroll, Gregg Van Ryzin, and Martin Frankel. (2001). The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment. Law and Society Review, 35, 419-434.

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The art of surviving and, ultimately, being effective as a prison officer may involve more negotiation and the wise use of discretion than simple compliance with rules. Similar to police officers, the discretionary use of rules as resources may be an important tool for correctional officers.

Background. Research on policing has focused on the “exercise, nature, and control of discretion…” (p. 334).  Conversely, work on prison officers has tended to ignore the concept of discretion, focusing instead on rule compliance.  

This study examined the everyday manner in which the exercise of discretion by prison officers operates. It notes that the “peacekeeping aspects of [prison officers’] work … has been neglected [as a topic of study]” (p.343). Like police officers, correctional officers “enforce their authority rather than the rules. They understand that ‘the decent thing’ is selectively to underenforce the law, in order that the smooth flow of prison can continue…. They make choices, use judgements, sometimes to achieve justice, where the rules do not work, and sometimes to assert their authority…. Like police officers, prison officers made efforts to provide security, stability and safety in prison … through surveillance, the threat of sanctioning and the art of persuasion.  Their role includes presence and patrol, the investigation of suspected ‘threats to order’ and the use of formal and informal sanctions” (pp. 343-4). Hence, rules are resources to be used to achieve certain goals. Prisoners understood this. Relationships between prisoners and prison guards also matter.

There are two models of prison work: the ‘rule following/compliance model’ and the ‘negotiation model’ (p. 346). While the former is the approach favoured by policy makers and management, the latter is the one which is actually delivered. Dangers exist with both.  Prison managers and prisoners agreed that the best staff were those who “accept and use discretion wisely” (p. 346). Staff who are seen by both groups as appropriate role models were described as having justifiable boundaries which were consistently applied and known to inmates - “something that was referred to as ‘moral courage’ or ‘moral fibre’; sensitivity to the effects of their own power; and a sensitivity to individuals and contexts…” (p. 346). “Consistency of principle meant that judicious flexibility in the application of the rules was a possibility. In the absence of any clearly articulated organizational principles, good staff developed or applied their own” (p. 346). It was noted that good prison officers (in the eyes of other officers and inmates) under-use power more than over-use it. 

From a management perspective, the gap that exists is between the world in which rules are there to be enforced and a world in which rules are there to be used as resources for the effective running of the prison. In the first model, process, audit and compliance are valued. In contrast, the second model emphasizes tradition, accommodation and daily survival (p. 349). 

Conclusion: It may be that the most effective prison officers are not those who are driven by “the rule of law” – enforcing every rule and procedure. Instead, the most effective officer - from the perspective of other officers and prisoners - may be the one who is guided by principles more than rules, negotiation more than enforcement, and results more than process.

Reference: Liebling, Alison. (2000). Prison Officers, Policing and the Use of Discretion. Theoretical Criminology, 4, 333-357.

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Cracks are developing in the imprisonment policies of several states in the USA. Indeed, imprisonment has turned out not to be all that it was cracked up to be.

Background: Crime rates in the U.S. dropped in many cities and states during the 1990s. Consequently, statements about crime being out of control have lost their shine as attractive elements of political rhetoric. Getting “tough” on an ever decreasing number of offenders is not the vote-getter in this century that tough talk was a decade earlier. As alternative strategies for dealing with those who offend – e.g., drug courts, restorative approaches – become more popular, the support for prisons as a one-(jumbo)-size-fits-all solution has begun to fade. The economic decline that began in 2001 has forced state legislatures to examine their expenditures. As a result, prisons are suddenly not as attractive as they once were. 

The result of the decline in the attractiveness of prisons as political institutions is that state legislatures in the United States have begun to roll back their pro-prison policies. Examples include the following:
Certain mandatory minimum sentences have been eliminated or reduced. Louisiana did this by imposing the 3-strikes requirement that all 3 offences be violent, sex, or drug crimes punishable by at least 10 years in prison rather than just any three felonies.
Mississippi has allowed certain non-violent offenders to become eligible for parole earlier in their sentences. 
North Dakota has eliminated mandatory minimum sentences for certain drug offences.
California (as a result of a referendum) has mandated drug treatment programs in place of previously required imprisonment. It is estimated that this single change will free up 11,000 prison beds (equivalent to about 40% of Canada’s total prison capacity). 
Idaho had planned on building one new prison every 2 years for the “foreseeable future” (p. 7) but, instead, expanded its drug treatment programs. 
Montana now diverts certain drinking-drivers to treatment rather than prison. 
Texas presently releases chronically ill inmates from the prison system.

In total, 11 states have plans to reduce correctional budgets. Ten states have considered delaying prison construction and/or closing facilities. For example, Missouri has, as the result of a state budget cut, delayed the opening of an already built facility which cost $168 million to construct.

Conclusion. Policy makers are apparently now “aware that sentencing and corrections policy choices have both short-term and long-term considerations” (p. 17). It would appear that legislators are also seeing that prison cell construction attracts prisoners and continuing costs. As prison populations decline, state officials are becoming more aware of the importance of “prison re-entry” programs. The shine has come off the spanking new prison – public or private. Thirty years of “increased punishment” policies suddenly do not look so good.

Reference: King, Ryan S. and Marc Mauer. (2002). State Sentencing and Corrections Policy in an Era of Fiscal Restraint.  Washington, D.C.: The Sentencing Project. www.sentencingproject.org

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Ineffective parenting leads to delinquency. Ineffective parenting of delinquent youths increases as a result of a youth’s contact with the criminal justice system. A youth’s contact with the criminal justice system as an offender accounts for “both continuity in antisocial activities and disruptions in parenting practices” (p. 36). 

Background.  A substantial amount of research has shown that ineffective parenting – e.g., harsh parenting, punitive discipline and poor supervision of youths – leads to increased delinquency in adolescents. However, “there is an increasing body of research that suggests that delinquency is not merely an outcome but a process variable that affects and is affected by parenting in an interactional process” (p. 37).  Delinquency and bad parenting may each increase the other. 

This paper suggests that “delinquency is most apt to have negative consequences when resulting in official responses by legal authorities” (p. 37). It is noted that legal sanctions disrupt the quality of family life by embarrassing the parents, thus increasing conflict and subsequent stress levels in the family. 

The study looks at youths at three different points in time (average age: 13.5, 14.5, and 15.5 years). Poor parenting was assessed using self-reports by parents as well as systematic observations by survey interviewers. Delinquency of the youth was assessed by way of a self-report questionnaire. Youths also reported whether they had come into contact with the justice system as well as the type of contact which had occurred. 

Delinquency and parenting were examined at ages 13.5 and 15.5. At age 14.5, the youths were asked about contact with the justice system as offenders. The statistical model that was used looked at changes in delinquency and parenting (from age 13.5 to 15.5). 

The findings demonstrate that poor parenting at age 13.5 was associated with increased delinquency at age 15.5. However, about half of this effect was due to the impact of legal sanctions occurring between these two ages. Not surprisingly, those youths who were most involved in delinquency and most subject to poor parenting practices at age 13.5 were most likely to receive legal sanctions. However, the impact of poor parenting practices at age 13.5 was largely mediated by the occurrence of legal sanctions. 

Similarly, poor parenting at age 15.5 was associated with higher levels of delinquency at age 13.5. This effect was almost completely due to the impact of legal sanctions that took place between age 13.5 and age 14.5. 

Conclusion: “Poor parenting behaviours led to increases in delinquency and earlier delinquency led to an increase in poor parenting” (p. 52). Legal sanctions were a result of delinquency and poor parenting at age 13.5. “Legal sanctions, in turn, predicted further increases in delinquency and decreases in parenting quality a year later at [age 15.5]” (p. 52). Clearly, there are negative effects of increased contact with the criminal justice system. Consequently, laws that minimize this impact (e.g., by reducing formal entry into the court, probation, or custodial systems) may ultimately end up reducing recidivism.

Reference: Stewart, Eric A., Ronald L. Simons, Rand D. Conger, and Laura V. Scaramella. (2002). Beyond the Interactional Relationship between Delinquency and Parenting Practices: The Contribution of Legal Sanctions. Journal of Research in Crime and Delinquency, 39, 36-59.

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Why aren’t we able to predict serious school violence?  Because it (thankfully) happens very rarely and because we probably ask the wrong questions.

Background: The response to incidents of serious school violence is often dramatic, thoughtless, and probably not effective. For instance, New York City spent $28 million on metal detectors in the mid-1990s. As well, various school districts have recently implemented school uniform policies (on the theory, apparently, that gang members will not wear them). These policies need to be evaluated in light of the fact that fewer than 1% of the homicides and suicides among school-age children in the U.S. happen in or around schools. “School hours are probably the safest time of the day for adolescents” (p. 797).

This study begins by examining the question of why serious incidents of school violence cannot be predicted. The reasons are as follows:

• Serious acts of violence are rare events. Low base rate events (e.g., earthquakes, school shootings) are difficult to predict in any situation. There are likely to be many “false positives” (youths identified as violent who are not).  
• Adolescents, by definition, have “characters [that] are often not fully formed” (p. 798). The use of personality or risk-assessment surveys to assess adolescents “presents the formidable challenge of trying to capture a rapidly changing process with few trustworthy markers…. For example, some characteristics that are viewed as risk factors for psychopathy among adults (e.g., impulsivity, little concern for future consequences) are common and transitory aspects of normal adolescent development and may be easily misinterpreted when using standard approaches” (p. 799).
• School violence “is usually embedded in a social and transactional sequence of events” (p. 798).  In other words, there is a strong social as well as, perhaps, individual or personality component to it. “Violent events in the schools are part of a chain of actions and reactions, often among numerous other individuals…” (p. 798). 
• Therefore, it is not clear which interventions would work, even if one could identify “violence-prone” adolescents. 

On the other hand, if violence were identified as a dynamic, rather than static process, one might look for changes that increase the likelihood of violence. The challenge may be that rather than using personality tests, etc., information about youths who are “in trouble” may be available from other students in the school situation. The problem that this approach creates is obvious: “Giving information about the problems that another student is having or about threats or scary activities going on in a school environment can occur only if students feel that they are, and will remain, safe and that a reasoned response will result from their reporting… Ironically, many schools appear to be taking the opposite approach… Schools are implementing zero-tolerance polices that virtually guarantee an unreasoned response to any reported problem” (p. 800, emphasis added).  Given that attachments to family and schools serve as protective factors against violence, the promotion of healthy relationships and environments is more effective for reducing school misconduct and crime than instituting punitive penalties. 

Conclusion: “Preventing violent incidents in school does not require either more sophisticated methods for assessing students individually or a magical uniform method for intervening with them for a short while after they have been identified. It seems instead to rest largely on developing a positive and supportive organizational climate in a school” (p. 800).

Reference:  Mulvey, Edward P. and Elizabeth Cauffman. (October, 2001). The Inherent Limits of Predicting School Violence. American Psychologist, 797-802.

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Police assessments of suspects’ character and the race of the accused are important in understanding who is detained in custody awaiting trial in Toronto. 

Background. Bail laws can be conceptualized as theoretical tools used to assess risk (e.g. of the accused not appearing for trial or committing another offence). However, they may also have more concrete consequences for the detainee which extend beyond the simple reduction of his/her risk level. For example, an accused who is detained in custody awaiting trial is not only being punished for an offence that has not yet been proven, but is also put at a disadvantage in later proceedings. In particular, there is evidence from previous research suggesting that those in pre-trial detention are more likely to be found guilty and incarcerated than those who are allowed to remain in the community before their trial. 

This study looks at the more than 1800 bail decisions in Toronto courts in 1993-4. It examines hypotheses related to the notion that bail decisions relate to moral assessments made about the accused person. The researchers had access not only to data describing court proceedings, but also to information about the case that the Crown received from the police.

The findings demonstrate that even after legally relevant factors were controlled for (e.g., the accused having a permanent address, the number of charges, the presence of certain types of criminal record), race contributed significantly to the decision of whether an accused person received a pre-trial detention order: black accused are more likely to be detained than those from other racial backgrounds. However, the effect of race is indirect: “The more negative the police moral assessment of an accused person, the more likely they are to be held in custody” (p. 196) above and beyond legally relevant variables. This factor – negative moral assessments by the police – explains the race effect since “police provide more negative character assessments of black accused than white accused or accused from other racial groups” (p. 196). This appears to be the mechanism by which black accused are more likely to be detained. 

In general, accused who are remanded in custody are considerably more likely to plead guilty to one or more charges that they are facing. Additionally, accused who have been released into the community are more likely to have all charges against them withdrawn. In contrast, black accused persons who are detained in custody are less likely to plead guilty than white accused persons who are in pre-trial detention. If released, blacks and others are equally likely to plead guilty.  Although black people being detained are less likely to plead guilty than other groups, blacks in custody are more likely than accused from other groups to have all of their charges eventually withdrawn (17% vs. 8%).  Those accused who were held in pre-trial detention but did, in the end, have all charges withdrawn spent an average of 103 days in custody before release.

Conclusion: By defining what kind of person an accused is (independent of legal factors), the police have a direct impact on whether an accused is released on bail. Through this mechanism, black accused are more likely to be detained.  Blacks who are detained are, compared to accused from other racial groups, less likely to plead guilty but are more likely to have all charges eventually withdrawn. The added difficulty is that “the informality of certain bail practices combines with the confidentiality of police documents to render invisible the way in which personal identity [of the accused] influences the outcomes of both bail decisions and plea bargaining” (p. 205). 

Reference: Kellough, Gail and Scot Wortley. (2002). Remand for Bail: Bail Decisions and Plea Bargaining as Commensurate Decisions.  British Journal of Criminology, 42, 186-210.

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Domestic abuse does not occur in a vacuum.  Although victims are not responsible for their victimization, it does appear that “a mutual relationship process” involving both partners may explain some intimate violence. In these cases, treatments focused exclusively on the offender may not be as effective as those which recognize the dyadic process of domestic abuse.

Background. It is well established that although most spousal violence involves women as victims, some also involves male victims. However, the severity of violence directed at men by their female partners is less than that directed by men toward women. Though some of the violence by women against their male partners may involve self-defence, it appears that male and female violence may have similar predictors and correlates.

This study examines 360 young New Zealand couples with the goal of understanding whether “abuse is a dyadic process involving risk characteristics of both couple members” (p. 7). In particular, it evaluates the role of “negative emotionality” (NEM) in spousal abuse. NEM was assessed by self-reports of the reactions of both partners to stress. Questions included partners’ level of agreement to questions such as “I often get irritated at little annoyances” and “When someone hurts me, I try to get even” (p.7). High scorers have low thresholds for feeling tense, hostile, and angry” (p.7). The majority of the couples studied were in dating or cohabiting relationships. Only 7% were married. Most were considered to be of relatively low socio-economic status. Almost ¾ of the relationships had lasted for more than a year. 

The findings. Because the study used data on self-reported abuse and victimization obtained independently from each partner, “validity” could be assessed. Roughly ¾ of the reports were corroborated. The findings can be summarized as follows:
Both men and women who scored high in NEM were likely to abuse their spouses. 
Both men and women who were found to be high in NEM were likely to be victims, even after controlling for the partner’s NEM. 
When both partners were high in NEM, the likelihood of mutual abuse was highest.
Both men and women in “clinically” abusive relationships (i.e. those with abuse resulting in injury or professional interventions) had high levels of NEM. 

Conclusion. In this sample of young couples, negative emotionality predicted risk for abuse (both as a victim and as an offender). One partner in each couple had been assessed for this characteristic at an earlier time, before most couples had formed. Thus, negative emotionality did not appear to be a result of the experience of abuse in the couple. These findings support the growing evidence “that self-defense cannot explain all of the abuse committed by women” (p. 26). Subject to further replication - particularly for different age groups and types of interpersonal relationships – the results of this study may be important in suggesting that interventions addressing the negative emotionality of both offenders and victims may be more effective for some couples than strategies that focus solely on the offender.

Reference: Moffitt, Terrie E., Richard W. Robins, and Avshalom Caspi. (2001). A Couples Analysis of Partner Abuse with Implications for Abuse-Prevention Policy. Criminology and Public Policy, 1, 5-36.

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