Monthly Archives: November 2010

Send Me Your Interesting Stories!

I don’t think I’ve ever commented directly on this before but it dawned on me that I should.  If you have interesting news articles, cases, or other information relevant to the types of matters I cover then you should feel more than free to share them with me if you’d like by sending me an email here!


(Maybe) A Game Changer: Schwarzenegger v. Plata

The season of law school finals has rendered me more or less out of commission to do any commentary on this case…which is is a bit of a shame considering how important it may well be for prisoner rights and the scope of the judiciary’s authority in managing prisons.  Fortunately, Lyle Denniston at SCOTUSblog has an excellent article on it already!  You definitely want to give this one a read!! Find it here!

In the meantime, I’ll pass along info about this case or others that catch my attention.  However, unless something substantive happens with Turner v. Price or the pending Montejo v. Louisiana petition, you probably won’t be seeing any articles from me until finals are completed.

-Zachary Cloud

A Commentary on Three Recent Publications: Part 3 of 3

First of all, Happy Thanksgiving everyone!!  I hoped I’d be able to write this earlier but free time has been in short supply lately.  If you’re like me, just having some downtime is a big thing to be thankful for.  Anyway, with the turkey almost done and most of the other stuff finished, I’m sitting down to finally close out my three-part commentary.  So, to that end, I present a discussion of recent Gallup data on Americans’ perceptions of crime.  As a heads up, I’m writing this between tending to the kitchen so I apologize in advance for typos or other inconsistencies.


This recent Gallup publication caught my attention not only from a legal perspective but also from a psychological one too.  The article is a part of the annual Crime data that Gallup has been collecting since the early ‘70s.  As I first mentioned in an earlier post, they have recently released the 2010 data.  The poll aims to investigate what our perceptions of crime are both locally and nationally.  The web press release focuses on two variables: perceived crime rate and perceived crime severity.  Gallup also collects data on the respondent’s personal experience with being a victim of crime (e.g. “Please tell me which, if any, of these incidents have happened to you or your household within the last twelve months?”), which is an important thing to know in analysis; we might want to know if being a victim of crime makes one more likely to perceive crime as a problem.  Thus, I took it upon myself to dig deeper than what the web article displays and do my own analysis.  I downloaded their methodology report then copied and graphed the data tables provided for various questions asked.  I will first discuss their methodology, then discuss the local versus national distinction.  After that, I will turn to individual victim rates and what their impact may be, finishing with how this ties into my previous two articles on improving criminal justice.

Gallup’s Methods. This year, Gallup polled 1,025 adults (18 years or older) across the nation.  This polling was conducted by phone using random-digit dialing to ensure an un-biased sample.  Further, Gallup implemented a cell phone quota requiring that 150 respondents must be “cell phone only” and not have a landline.  I don’t know how they determined the exact ratio of cell phone to landline as it is not discussed in their methods report.  Nevertheless, the cell phone issue is a nice touch because many polls have been criticized for leaving out those who have gotten rid of their landline.  In fact, one of my family members has done this.  It certainly seems to be a growing trend and it’s becoming increasingly important to account for these people in a system that traditionally had not acknowledged them.

Two sample groups were taken based upon question rotation.  Put in plain English, half of the respondents were asked about local then national issues.  The second half were asked about national then local issues.  This way we can rule out or cancel out order effects.  Group A had a ±4 % margin of error at the 95CI, whereas Group B had a ±5 % margin of error.  Both are considered acceptable.

Gallup weights the results based on the typical demographic variables: gender, age, race, education, region, and type of phone they were polled on.  The only gripe I have is that they do not list n values for the previous years of the survey.  They only give summary statistics (in percentage of respondents), which makes what I can do with the data limited.

My Methods. Because all I have to work with are the frequency tables that Gallup provides, I couldn’t really dig into the regression models I’d hope to explore.  I was especially interested in examining crime perception as controlled by our personal experiences with crime.  In my own work, I have found this to be a somewhat less meaningful predictor variable than you might think.  Sadly, all I can do is take a look that what the descriptive data tell us.

Therefore, I copied the data tables provided by Gallup and graphed them using templates I used to employ when I was still doing psychological work.  A careful reader may note a couple things.  First, there is a lack of consistency in the‘90s with respect to data collection, which is why some of the years in that decade are not seen on this graph.  I do not specifically know if Gallup did not collect data in those years or if it simply chose not to provide the frequency responses.  Either way, the discontinuity in the earlier portion of the time series is attributable to Gallup, not me.  Second, I noted in tabulating the data Gallup provides that some of the years will have over or under 100% (always within ±1%) response when adding all of the categories together.  I double-checked my data entry and tried several times to figure out why this is but I cannot say for sure.  My best guess is simply sloppy rounding up or down.  Lastly a side note.  Some of the more artistic among us may not like the lack of color on these graphs.  That is intentional.  I was trained to avoid bias in every way possible and that includes color.  Using colors like red and green can convey subtle meanings, which I want to avoid doing.  I want the data and just the data.

Local v. National Crime Perception. Below I have displayed Figures 1 and 2.  Figure 1 shows how Americans perceive crime increase locally.  Specifically, this data shows a response to the question, “Is there more crime in your area than there was a year ago, or less?”  Four categories are measured for answers.  Respondents either answered more, less, same, or indicated that they did not have an opinion.  Figure 2 displays the same information but is responsive to the question, “Is there more crime in the U.S. than there was a year ago, or less?’  Figure 2 also indicates that Gallup collected this data in 1993 while the local crime rate perception was either not collected or not reported in their methodology.

Respondents' perceptions of local crime levels

Figure 1. Local Crime Perception

Respondents' perception of national crime rates

Figure 2. National Crime Perception

What we see first and foremost is the same general trend in both local and national assessments: from the early ‘90s to 2001, fewer and fewer people perceived crime as on the rise.  In 2001, the trend changed and more people started indicating crime is on the increase.  All of this is fairly intuitive.  The early ‘90s saw some of the highest crime rates our country has experienced so it only makes sense that people would pick up on that.  It’s also not so surprising to me that people would start perceiving crime as on the rise in 2001.  The September 11 attacks no doubt made all of us feel a bit less invulnerable and probably primed fear responses not previously active.

My issue with this data lies in the way Gallup has reported it.  Gallup was right to point out that actual crime rate levels are down all across the country … at least according to the Federal Bureau of Investigation statistics (data than can be particularly problematic when applied and interpreted the wrong way).  However, Gallup suggests that respondents’ answers of perceiving more crime flies in the face of the reality (decreasing crime rates for the past several years).

I disagree.  First of all, both on a local and national level, fewer people perceived crime on the rise than last year (on the local level, that falls within the margin of error however).  It’s indicative that, on the aggregate level, people are starting to respond to reduced crime.  Nevertheless, it’s interesting that nearly 70% of people said crime is up nationally when compared with only 50% who felt it was up in their area.  My hypothesis is that this is the same effect we see when applied to politicians, “I hate Congress; I love my Congressman.”

Also noteworthy is the comparison of people who felt that crime was the same on the local and national levels.  On the local level, this response has stayed at just under 20% since 2004 whereas it has stayed under 10% on the national level excepting 2003 and 2004.  This shows some support for my earlier hypothesis.  People have more information about their area and can judge it a bit more accurately.  On a national level, most people have only the media to inform their beliefs.  With crime a consistent go-to topic for news outlets, it should come as no real surprise that people feel it is on the rise across the country.   Let’s look at a little bit more detail and see if we can’t pinpoint what is going on.

Respondents' perceptions of how serious local crime is.

Figure 3. Perceived Seriousness of Local Crime

Respondents' perceptions of how serious national crime is.

Figure 4. Perceived Seriousness of National Crime

Above, are Figures 3 and 4.  I have decided to provide these in color because things start to get too confusing without it.  These two graphs are illustrative of how serious respondents perceive crime to be on a local and national level.  This data was only available for the last decade (and in fact, 2001 and 2002 were not provided either) so unfortunately I cannot look back into the ‘90s.  Here, respondents were asked, “Overall, how would you describe the problem of crime in [the United States / the area where you live] – is it extremely serious, very serious, moderately serious, not too serious, or not serious at all?”  Figure 3 shows the results for local seriousness. Figure 4 shows results for national seriousness.  Also important to note, as the question wording above implies, these were counterbalanced so that half of people were asked about national seriousness first and the other half last.  That helps ensure that answers to one aren’t driven or influenced by the other.

What we notice here is that a decent portion of people thought crime wasn’t too serious or only moderately serious in their own area.  Indeed, more people thought crime was not serious locally than thought it was very or extremely serious.  On the national level, we see a distinctly different picture.  Here, people felt that the crime went from being moderately serious to very serious since 2009.  Both of those categories have remained well above the other ones (10 % or higher) since data collection began in 2000.  Also significant is that more people think that crime across the nation is “extremely serious” (just over 20%) than that it is not too serious or not serious at all.  Indeed, this trend has also been consistent since polling began.  Moreover, more people report having no opinion than believing crime is not serious nationally.

Again, I think this data may suggest that people are more in touch with their local area. Here’s what I mean.  Where are you most affected by crime?  Where you live or on some vague, national level?  No doubt, crime affects you where you live.  If we would expect one to be seen as more of a problem to you, would it not be the one that hits closest to home (quite literally)?  Of course.  Why then do people perceive crime as a more serious problem where it has a much less significant (if any) impact on their own day-to-day lives?  My proposed answer is that this data actually is showing a level of knowledge on the part of the respondent.  In your own area, you learn of crime not only through news outlets but from your own experiences, your conversations with co-workers, family, friends, and the like.  You have a range of instruments with which to estimate the crime situation.  On a national level, your information is more-or-less limited to what you can glean from the news.  And now we run into problems with how frequently you watch the news, what medium you consume (print, tv, online, radio, etc..),  so on and so forth.

Victim Rates. I think it’s also important to consider the data Gallup provides on victimization rates.  In particular, I have pulled out two variables that caught my attention.  The first measures personal or household experience with crime in the last year.  The second expands on that by examining the number of times the respondent or his/her household was a victim of crime.  The data are presented in Figures 5 and 6 below.

Respondents' personal experience with crime

Figure 5. Member of Household Victimized by Crime

Respondents' number of encounters with crime

Figure 6. Number of Times A Member of Household Has Been Victim of Crime

Figure 5 is an aggregation of positive responses to a variety of different crimes (e.g., being burglarized, being assaulted, etc…)  It demonstrates that the clear majority (around 75%) did not have any personal experience (measured as either to themselves or a household member) with crime in the last year.  It also shows that these trends have remained quite constant – far more so than people’s perceptions of crime.

Figure 6 expands on this by showing the number of times the respondent had personal experience with crime in the last year.  As we saw in Figure 5, the majority have none.  Of those that have any, around 15% had only one encounter and 10% had two ore more encounters with crime.  That these latter two numbers are so close (nearly within the margin of error) is suggestive to me that those are the respondents actually living in problematic areas.

I find this data interesting and I really wish I could cross-tabulate it against perception reports.  Yet, since I don’t have access to the raw data, I cannot do more analysis beyond what I have.  My suspicion is that those who have personal experience with crime tend to perceive crime as on the rise and as being more serious (a pretty uncontroversial hypothesis) but it calls into question those who have had no experience with crime.  These graphs show some of the most stable trends of all the data I’ve reviewed.  Logically speaking, it allows us to infer that actual victimization rates are much more stable than people believe them to be.  Admittedly, drug sales complicate this picture.  They are victimless yet very real crime that people may be aware of and report.  In general though, public perception of crime is not matching up with reality as both these two graphs and FBI statistics indicate.

Public Perception and Criminal Justice. Ultimately, I’m left wondering not only why this disparity exists but what its impact is on our criminal justice system.  I think information availability and diversity play a significant role in the perception process.  Few people are likely going to their police station to get crime data, fewer still are probably going to the FBIs website to see national trends.  Most of us are just busy people that briefly consume information when it happens to come our way.  Fair enough…but how will that affect our ability to improve criminal justice?

Perhaps not as badly as you might think.  Community involvement is repeatedly cited as a necessary element in crime prevention and deterrence.  The “it takes a village” approach has been tested with great success in a number of cities and it seems a promising way to help treat the root causes of crime.  Of course, this approach requires people to become engaged, which rarely happens when people don’t see something as a problem.  In a way, peoples’ misunderstanding of crime trends may be a blessing in disguise because it may motivate them to become proactive in helping reduce the issue.

This does not come without a drawback however.  Facilitating community involvement has to work in concert with traditional methods of criminal justice (e.g. policing, prosecuting, rehabilitating, etc…)  If local government is ready to embrace holistic approaches to crime deterrence then this misperception of the public could be helpful.  If the local government is only wanting more of the same (e.g. elect me; I’ll be tough on crime) then this public misperception is certainly to the detriment of everyone.  Voting for the “tough on crime’ candidate is the easy way out.  Beyond that, it rarely accomplishes the intended goal.  Too often, prosecutors and judges aim for appearing tough on crime rather than actually effecting justice, at great cost to everyone who is fed through the system.

I certainly have some uneasiness as an academic about the public lacking accurate data or, at the least, choosing not to seek it out.  I also have uneasiness that this lack of accurate info could be harnessed to merely promulgate the current trends rather than actively improve them.  However, I must admit there is a certain silver lining in all of this.  It might, just might get people proactively involved.  And if that occurs, we’re certainly on the road to a better place.

-Zachary Cloud

A Commentary on Three Recent Publications: Part 2 of 3

In my last post, I gave a general summary and reaction of a forthcoming law review article suggesting policy changes to the criminal justice system.  Today, I follow up on that post by discussing a briefing by the Sentencing Project.


First of all, some background.  I learned of this through the Sentencing Law and Policy blog, which I follow regularly.  You can download the report I’m discussing here.  It’s much shorter than the law review article I discussed previously, I promise!

The main thrust of the report is that certainty, not severity, of imprisonment is what works to effectively deter crime.  As with the law review article I summarized, this article places public safety as the bedrock goal, which we should be attempting to achieve.  The report contains collected research from criminologists which all advance this sentiment: “severity of punishment will have little impact on people who do not believe they will be apprehended for their actions” (found on page 2 of the report).

This is, doubtless, true.  There is an issue nevertheless with focusing on certainty, which the author does briefly acknowledge.  The author suggests that increasing certainty of incarceration across the board may not be very effective; if your likelihood of getting caught for even minor crimes increases then the result may only be reduced stigmatization of criminal behavior.

My own argument differs.  I suggest you cannot have effective deterrence without both severity and certainty.  Does it matter much that I will be caught of stealing a candy bar should I think that the punishment will only be a slap on the wrist?  Of course it does not.  Take any minor offense where jail time is an unlikely outcome and you will again find that likelihood of being caught does not matter much.  A crime has to, after all, appear unattractive to the committing party.  A potential offender needs to believe not only that he will be caught but that being caught is a meaningfully bad thing he wants to avoid.

There is another problem with the report.  It rightly points out that the rationality assumption required by formal economic models of deterrence makes little sense when nearly half of all criminals are under the influence of mind-altering substances when committing crimes.  Yet, if we accept this, why would we expect a potential criminal to form an accurate probability assessment?  Both risk calculations (certainty and severity) require rationality as their cornerstone.  Economic models can tolerate isolated irrationality but they cannot tolerate 50% irrationality.  I fail to see how the author has distinguished certainty evaluation from the problem she accuses severity of having.

My biggest complaint about this report is different still.  This report presents a decent review of past criminological work showing that increased certainty also increases deterrence.  It presents data that severity alone has not been working as is evidenced by recidivism rates.  It presents a strong argument that our tax dollars are being spent on policies that don’t work very well to deter.  Yet it provides basically no solution to how we can change the current setup.  I ask, what would lead to increased certainty of being caught?  Is it smarter policing?  More community involvement?  Education reform?  All of those possibilities are suggested by the law review article I previously reviewed.  I think those methods have merit but are not without costs of their own.  It would be nice to see this report address that.  Regrettably, it did not.

I don’t want to diminish the value of this report.  It might get some people to listen and consider reform.  It might put statistics and data in the hands of people who are otherwise uninformed.  Nevertheless, it unnecessarily reduces the interdependence of severity and certainty.  It fails to acknowledge their symbiotic relationship and their mutual reliance on rationality.  I find that hard to overlook.  I do recommend reading it and using it for any data you might want … just don’t expect an airtight analysis.

I think the real value of this piece is the conversation it can be placed into.  It pairs well with the law review article in considering what might work to reform or “reimagine” criminal justice.  It gets us thinking, which is always a great place to start.  To that end, the article is actually quite helpful.  Yet there is another piece to the puzzle of reform: the public.

Getting a community (or the public in general) on board will present new difficulties.  In my next post, I will discuss that in some detail by using a recent Gallup poll to illuminate the issue.  Stay tuned!

-Zachary Cloud

A Commentary on Three Recent Publications: Part 1 of 3

Well the season of law school finals is almost here…and that means I can’t devote as much attention as I’d like to all of the exciting things happening in criminal law as of late.  However, I did want to take a portion of time to discuss three noteworthy publications.  I think the best method will be to discuss them in three separate posts.

I will dedicate this article to laying the framework of criminal justice reform, then I will discuss a pseudo-study released by the Sentencing Project that acts as a nice companion/response piece to this article.  Finally, I’ll approach recent Gallup data regarding how we as Americans are perceiving crime rates.


The first matter I wanted to comment on briefly is a rather overarching paper by Klingele and colleagues from the University of Wisconsin Law School.  The paper is entitled Reimagining Criminal Justice and is forthcoming in the University of Wisconsin Law Review.  You can find the draft here (you can also find it on SSRN).  Like most law review articles, it’s not very short.  However, I’ll do my best to quickly summarize the arguments.

The article examines the aims of criminal justice from three points of view: efficiency, efficacy, and equity.  All of these possible goals are advanced in the name of public safety, which the authors suggest would be much more frequently achieved if we were to focus on prevention instead of reaction.  Perhaps the points most important to take away are cited theories from earlier work…work which propose that any crime has the following three impetuses: a motivated offender, a suitable target or victim, and an environment lacking capable guardianship.  Thus, the theory is that if you take away any of those three components it becomes impossible for crime to occur.  The authors suggest that there are three ways of taking away the aforementioned elements: (1) make crimes harder to commit, (2) increase the chance of detection, and (3) reduce the benefits derived from criminal activity.

As a whole, the article pushes for a much more participatory as opposed to authoritarian approach to criminal justice.  I like that but I suspect, based on my past psychological research, that there would be a significant divide between liberals and conservatives about the correct approach.  After all, these are essentially societal vs. personal accountability arguments at their heart.

Now, to my chagrin, the article spends no real time talking about the role of criminal defense attorneys in the process, instead considering the police, prosecutors, judges, and corrections officers.  I think it is a rather fatal flaw to not, at the least, acknowledge the profound role that public defenders and private defense attorneys play in shaping criminal justice.  But, c’est la vie.

The authors readily admit their arguments are heavily policy laden, and further admit that their point is more to encourage implementation of methods and tactics that research shows are working to great effect.  I do not disagree with their main goals but I do think their article may be a bit misleading.  Their aim is not actually to reimagine criminal justice but rather to redesign how we perceive and work to ensure public safety.  Given the significance of inchoate and victimless crimes in our current system, there is a lot more to criminal law than just public safety.  Whether or not criminal law should be about more than public safety is an entirely different consideration that I will not presently undertake.

Overall this law review article is definitely worth a read.  It offers some valuable points and, at the very least, a nice compilation of various data sources you might want to check out if you’re looking for information about the state of the criminal justice system (broadly defined).

In my next post, I’ll consider a recent paper that seeks to answer which is more effective: increasing the harshness of sentencing or the likelihood of being incarcerated?  Stay tuned; it’s coming in the next day or two!

-Zachary Cloud

Gallup Survey Suggests We Think Crime is on the Rise

Gallup released poll results today, which are a part of their annual Crime survey. The results can be found here.  To summarize, Americans (on average, of course) report that crime is increasing both nationally and in their local area.  Specifically, 60% of respondents said there was more crime nationally whereas 17% said there was less crime.  I have not studied their methodology in detail yet so I do not know where the other 23% is.  49% of respondents said crime was up in their area, as opposed to 30% who said crime was down.  Again, I don’t yet know what happened to the 21% missing.

As some of my readers may know, before coming to law school I did psychological research on jury decision-making.  A necessary companion to that research was a fairly advanced knowledge of statistics, survey methods, report measures, and the like.  Given that experience in statistical analysis, I feel comfortable embarking on a detailed analysis of the Gallup findings.  I hope to write up an article about them within the next couple of days.

Stay tuned!

-Zachary Cloud

“Reimagining Criminal Justice”

The title above is that of a new article coming from the Wisconsin Law Review.  I just learned of this from Doug Berman’s Sentencing Law & Policy blog so I haven’t had a chance to read the article yet.  But it certainly has caught my eye and I may author a reaction to it soon.

-Zachary Cloud