FOSTA-SESTA: Have controversial sex trafficking acts done more harm than good?
The idea behind the law was simple: make it more difficult for online sex traffickers to find victims.
22 January, 2021
Credit: troyanphoto on Adobe Stock
- SESTA (Stop Enabling Sex Traffickers Act) and FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act) started as two separate bills that were both created with a singular goal: curb online sex trafficking. They were signed into law by former President Trump in 2018.
- The implementation of this law in America has left an international impact, as websites attempt to protect themselves from liability by closing down the sections of their sites that sex workers use to arrange safe meetings with clientele.
- While supporters of this bill have framed FOSTA-SESTA as a vital tool that could prevent sex trafficking and allow sex trafficking survivors to sue those websites for facilitating their victimization, many other people are strictly against the bill and hope it will be reversed.
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What is FOSTA-SESTA?
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="723125b44601d565a7c671c7523b6452"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/WBaqDjPCH8k?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span><p>SESTA (Stop Enabling Sex Traffickers Act) and FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act) were signed into law by former President Trump in 2018. There was some argument that this law may be unconstitutional as it could potentially violate the <a href="https://constitution.congress.gov/constitution/amendment-1/" target="_blank">first amendment</a>. A criminal defense lawyer explains this law in-depth in <a href="https://www.youtube.com/watch?v=RoWx2hYg5uo&t=38s" target="_blank" rel="nofollow">this video</a>. </p><p><strong>What did FOSTA-SESTA aim to accomplish?</strong></p><p>The idea behind the law was simple: make it more difficult for online sex traffickers to find victims. FOSTA-SESTA started as two separate bills that were both created with a singular goal: curb online sex trafficking. Targeting websites like Backpage and Craigslist, where sex workers would often arrange meetings with their clientele, FOSTA-SESTA aimed to stop the illegal sex-trafficking activity being conducted online. While the aim of FOSTA-SESTA was to keep people safer, these laws have garnered international speculation and have become quite controversial. </p><p><a href="https://www.businesswire.com/news/home/20180321006214/en/National-Anti-Trafficking-Coalition-Celebrates-Survivors-Senate-Passes" target="_blank" rel="noopener noreferrer">According to BusinessWire</a>, many people are in support of this bill, including the National Center for Missing and Exploited Children and World Without Exploitation (WorldWE). </p><p>"With the growth of the Internet, human trafficking that once happened mainly on street corners has largely shifted online. According to the National Center for Missing & Exploited Children, 73 percent of the 10,000 child sex trafficking reports it receives from the public each year involve ads on the website Backpage.com."</p><p>As soon as this bill was <a href="https://www.pivotlegal.org/sesta_fosta_censoring_sex_workers_from_websites_sets_a_dangerous_precedent" target="_blank" rel="noopener noreferrer">signed into law</a>, websites where sex workers often vetted and arranged meetings with their clients could now be held liable for the actions of the millions of people that used their sites. This meant websites could be prosecuted if they engaged in "the promotion or facilitation of prostitution" or "facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims." </p><p><strong>The bill's effects were felt around the world — from Canadians being unhappy with the impact of this American bill to U.K. politicians considering the implementation of similar laws in the future.</strong> </p><p>Heather Jarvis, the program coordinator of the Safe Harbour Outreach Project (SHOP), which supports sex workers in the St. John's area, <a href="https://www.cbc.ca/news/canada/newfoundland-labrador/heather-jarvis-website-shutdown-1.4667018" target="_blank" rel="noopener noreferrer">explained to CBC in an interview</a> that the American bill is impacting everyone, everywhere: "When laws impact the internet — the internet is often borderless — it often expands across different countries. So although these are laws in the United States, what we've seen is they've been shutting down websites in Canada and other countries as well."</p><p>Jarvis suggests in her interview that instead of doing what they aimed to do with the bill and improving the safety of victims of sex trafficking or sexual exploitation, the website shutdowns are actually making sex workers less safe. </p><p>While <a href="https://gizmodo.com/the-uk-wants-its-own-version-of-fosta-sesta-that-could-1827420794" target="_blank" rel="noopener noreferrer">one U.K. publication</a> refers to FOSTA-SESTA as "well-intentioned but ultimately deeply-flawed laws," it also mentions that politicians in the United Kingdom are hoping to pursue similar laws in the near future. </p>Has FOSTA-SESTA done more harm than good?
<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTUxMzY5Ny9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY2ODUyNDc4OX0.dSEEzcflJJUTnUCFmuwmPAIA0f754eW7rN8x6L7fcCc/img.jpg?width=1245&coordinates=-68%2C595%2C-68%2C595&height=700" id="69d99" class="rm-shortcode" data-rm-shortcode-id="734759fa254b5a33777536e0b4d7b511" data-rm-shortcode-name="rebelmouse-image" alt="sex worker looking online for a job" data-width="1245" data-height="700" />Is this really going to help, or is this bill simply pushing sex work and sex-related content further into the dark?
Credit: Евгений Вершинин on Adobe Stock
<p>While <a href="https://www.businesswire.com/news/home/20180321006214/en/National-Anti-Trafficking-Coalition-Celebrates-Survivors-Senate-Passes" target="_blank">supporters of this bill</a> have framed FOSTA-SESTA as a vital tool that could prevent sex trafficking and allow sex trafficking survivors to sue those websites for facilitating their victimization, many other people are strictly against the bill and hope it will be reversed.</p><p><strong>One of the biggest problems many people have with this bill is that it forces sex workers into an even more dangerous situation, which is quite the opposite of what the bill had intended to do.</strong> </p><p>According to <a href="https://www.theglobeandmail.com/canada/article-anti-trafficking-activists-cheer-but-sex-workers-bemoan-shutdown-of/" target="_blank" rel="noopener noreferrer">Globe and Mail</a>, there has been an upswing in pimps sending sex workers messages that promise work - which puts sex workers on the losing end of a skewed power-dynamic, when before they could attempt to safely arrange their own meetings online. </p><p><strong>How dangerous was online sex work before FOSTA-SESTA? </strong></p><p><a href="https://www.beyond-the-gaze.com/wp-content/uploads/2018/01/BtGbriefingsummaryoverview.pdf" target="_blank" rel="noopener noreferrer">The University of Leicester Department of Criminology</a> conducted an online survey that focused on the relative safety of internet-based sex work compared with outdoor sex work. According to the results, 91.6 percent of participants had not experienced a burglary in the past 5 years, 84.4 percent had not experienced physical assault in the same period, and only 5 percent had experienced physical assault in the last 12 months. </p><p><a href="https://www.pivotlegal.org/sesta_fosta_censoring_sex_workers_from_websites_sets_a_dangerous_precedent" target="_blank" rel="noopener noreferrer">PivotLegal</a> expresses concerns about this: "It is resoundingly clear, both from personal testimony and data, that attacking online sex work is an assault on the health and safety of people in the real world. In a darkly ironic twist, SESTA/FOSTA, legislation aimed at protecting victims of and preventing human trafficking for the purposes of sexual exploitation, will do the exact opposite."</p><p><strong>Websites are also being hypervigilant (and censoring more content than needed) because they can't possibly police every single user's activity on their platform.</strong> </p><p>Passing this bill meant any website (not just the ones that are commonly used by sex traffickers) could be held liable for their user's posts. Naturally, this saw a general "tightening of the belt" when it came to what was allowed on various platforms. In late 2018, shortly after the FOSTA-SESTA bill was passed, companies like Facebook slowly began to alter their terms and conditions to protect themselves. </p><p>Facebook notably added sections that express prohibited certain sexual content and messages:</p><p style="margin-left: 20px;"><em>"Content that includes an implicit invitation for sexual intercourse, which can be described as naming a sexual act and other suggestive elements including (but not limited to):</em></p><p style="margin-left: 20px;"><em>– vague suggestive statements such as: 'looking forward to an enjoyable evening'</em></p><p style="margin-left: 20px;"><em>– sexual use of language […]</em></p><p style="margin-left: 20px;"><em>– content (self-made, digital or existing) that possibly portrays explicit sexual acts or a suggestively positioned person/suggestively positioned persons."<br><br> </em></p><p>Additionally, sections like this were also added, prohibiting things that could allude to sexual activity: </p><p style="margin-left: 20px;"><em>"Content in which other acts committed by adults are requested or offered, such as:</em></p><p style="margin-left: 20px;"><em>– commercial pornography</em></p><p style="margin-left: 20px;"><em>– partners that share fetishes or sexual interests"</em></p><p>Facebook wasn't the only website to crack down on their policies — the Craigslist classifieds section being removed and Reddit banned quite a large number of sex-worker related subreddits. </p><p><strong>Is FOSTA-SESTA really helpful?</strong> </p><p>This is the question many people are facing with the FOSTA-SESTA acts being passed just a few years ago. Is this really going to help, or is this bill simply pushing sex work and sex-related content further into the dark? Opinions seem to be split down the middle on this — what do you think?</p>
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Study: Militarization of police does not reduce crime
A new look at existing data by LSU researchers refutes the Trump administration's claims.
10 December, 2020
Credit: Megan Varner/Getty
- The United States Department of Defense gifts surplus military equipment and clothing to local police departments.
- The militarization of police coincides with a significant loss of trust in law enforcement from the American public.
- Militarized police departments are more likely to interact violently with their communities.
<p>Watching coverage of protests in American streets, many of us have been shocked to witness what modern policing often looks like. Even putting aside the reason for many of these demonstrations in the first place—allegations of police brutality—what we see onscreen marching towards protestors is chilling. We witness police garbed in helmets, flak jackets, tactical dress, and carrying assault rifles, backed by weaponry designed for the battlefield, not the nation's thoroughfares.</p><p>The primary source of this equipment and clothing is the Federal government's <a href="https://www.dla.mil/DispositionServices/Offers/Reutilization/LawEnforcement/ProgramFAQs.aspx" target="_blank">1033 program</a>, which has been described as "Uncle Sam's Goodwill Store." This surplus military equipment (SME)—or "reutilized" gear as the Department of Defense (DOD) calls it—is granted, for free, to local law enforcement agencies, or "LEAs." <a href="https://www.wired.com/story/pentagon-hand-me-downs-militarize-police-1033-program/" target="_blank" rel="noopener noreferrer">WIRED</a> estimates the Pentagon has gifted to local police some $7.3 billion worth of military equipment and clothing.</p><p>Concerned about the manner in which this militarization has affected policing, and following 2014's Ferguson protests, President Obama curtailed the program. The Trump administration removed these limits in 2017, claiming research had proved militarization reduces crime.</p><p>A <a href="https://www.lsu.edu/mediacenter/news/2020/12/07polisci_gunderson_nature.php" target="_blank">new study</a> from Louisiana State University (LSU) revisits that research, finding it incomplete and inconsistent. The researchers, led by LSU political scientist Anna Gunderson, collected their own more comprehensive and accurate data and concluded that militarizing local police does not actually reduce crime. </p>
A wide lack of support
<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNDk0NTA5MS9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY0MTgxMjQ3MX0.MkHMggYd2V-JEEGobDPR51QSNgycPFCUFXGMMPCS2cc/img.jpg?width=980" id="e4754" class="rm-shortcode" data-rm-shortcode-id="523ef043784b62c3fba76f42668de0a4" data-rm-shortcode-name="rebelmouse-image" data-width="1440" data-height="912" />Credit: Andrew Caballero-Reynolds/Getty Images
<p>It's no wonder that more than half of the American public <a href="https://www.nytimes.com/2020/08/12/us/gallup-poll-police.html" target="_blank" rel="noopener noreferrer">no longer trusts the police</a>. It's hard not to get the impression that for many police departments, the mission has changed from one of support for its communities to an attempt to intimidate and dominate its members.</p><p>Studies back this up. Police whose departments use military equipment are <a href="https://journals.sagepub.com/doi/pdf/10.1177/2053168017712885" target="_blank">more often violent</a> with community members and are more likely to kill them. Neither is this a small problem at the margins of policing: <a href="https://mappingpoliceviolence.org/nationaltrends" target="_blank" rel="noopener noreferrer">Over 1,000 people</a> are killed by police annually.</p><p>In spite of the Trump administration's faith in the soundness of the 1033 program, others from across the political spectrum disagree. On the right, the Charles Koch Foundation <a href="https://www.charleskochinstitute.org/issue-areas/criminal-justice-policing-reform/militarization-of-police/" target="_blank">asserts</a>, "This erosion of public confidence in law enforcement and low support for militarization impedes law enforcement's ability to effectively secure public safety." From the left, the American Civil Liberties Union <a href="https://www.aclu.org/issues/criminal-law-reform/reforming-police/police-militarization" target="_blank">says</a>, "We advocate for a return to a less dangerous, more collaborative style of policing. We should not be able to mistake our officers for soldiers."</p>Sketchy records
<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNDk0NTA5NC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYzMTE1Nzk5MX0.KuoUq6a7B-1Pc01yH9bMziQE6rTg-aGvN00SgSCBUVA/img.jpg?width=980" id="7f861" class="rm-shortcode" data-rm-shortcode-id="602430081af21aa3ec2c66b79042a96a" data-rm-shortcode-name="rebelmouse-image" data-width="1440" data-height="1033" />The Pentagon
Credit: JeremyAdobe Stock
<p>Gunderson explains to <a href="https://www.lsu.edu/mediacenter/news/2020/12/07polisci_gunderson_nature.php" target="_blank">LSU Media Center</a> that, "scholars rely on accurate data to track and analyze the true effect of police militarization on crime. Policymakers also need accurate data to base their decisions upon. However, to-date, we do not have reliable data on SME transfers to local police and sheriffs through the federal government."</p><p>The research cited by the Trump administration was a study done by the American Economic Association based on SME data collected through a 2014 Freedom of Information Act request. Having a look at that data themselves, along with other FOIA 2014 data released by National Public Radio and newer data from 2018, the LSU researchers found that things didn't quite line up. Where FOIA suggests certain counties received SME, NPR's data showed no such transfer. Similarly, NPR reported departments receiving items such as weapons, grants that were not reflected in the 2018 data as expected.</p><p>"When we looked at the data and ran the replications, nothing looked like the results being cited by the Trump Administration," Gunderson recalls. "We spent a year trying to diagnose the problem."</p>Instead
<p>The LSU researchers' conclusion was the the previously released SME data from the DOD was too inconsistent to produce reliable insights. They conducted their own analysis, aligning newer data with country-level LEA data, to derive a cohesive, accurate picture that allowed them to more definitively assess who got SME transfers and who didn't, and what effect it had on local crime statistics.</p><p>They found no indication that SME transfers led to a reduction in crime. The study concludes, "we find no evidence that federal distributions of SME to local LEAs across the United States reduce crime rates, neither violent nor nonviolent crime rates, in the jurisdictions that receive it."</p><p>Gunderson adds:</p><p style="margin-left: 20px;">"This is a cautionary tale about the importance of oversight. The most important thing for policymakers and the public to know is that you can't justify giving surplus military equipment to police departments on the grounds it will lead to a reduction in crime. There is no evidence for that. You can't claim this program is important because it reduces crime."</p><p>What's more says, the report, "because of serious data problems and debatable methodological choices in prior studies, the empirical foundations on which social scientists, along with policymakers and the public, stand when making causal claims about the effects of the transfers of SME may be no firmer than quicksand."</p>
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Catching serial killers with an algorithm
This week, Big Think is partnering with Freethink to bring you amazing stories of the people and technologies that are shaping our future.
07 October, 2020
- There are over 250,000 unsolved murder cases in the United States. Thomas Hargrove, cofounder of Murder Accountability Project, wants that number to be as close to zero as possible, and he has just the tool to help.
- Hargrove developed an algorithm that, through cluster analysis, is capable of finding connections in murder data that human investigators tend to miss.
- The technology exists, but a considerable roadblock that the project faces is getting support and cooperation from law enforcement offices.
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</p><p>At Big Think, we share actionable lessons from the world's greatest thinkers and doers. This week, we're partnering with <a href="https://www.youtube.com/channel/UConJDkGk921yT9hISzFqpzw?sub_confirmation=1" rel="noopener noreferrer" target="_blank">Freethink</a> to bring you amazing stories of the people and technologies that are shaping our future, from neuroscience breakthroughs to bionics and justice. Catch Freethink's documentary-style videos here and on our YouTube channel this Monday, Wednesday, and Friday.</p>
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Three philosophies of punishment and whether or not they work
What do we want to do with convicted criminals? Penology has several philosophies waiting to answer that question.
30 September, 2020
Credit: nampix/Shutterstock
- What is the purpose of punishing a convicted criminal supposed to be? It depends on which philosophy you prescribe to.
- None of these ideas are without their detractors, or qualifying evidence.
- As the United States grapples with criminal justice reform, the arguments each philosophy has behind it will have to be considered.
<p><br></p><p> The question of what should be done with criminals after they are convicted is a big one. In the United States, where decades of "tough on crime" policies have come under increasing scrutiny from all sides, the question is of increasing social, political, and philosophical importance. <a href="https://en.wikipedia.org/wiki/Penology" rel="noopener noreferrer" target="_blank">Penology</a>, the <a href="https://marisluste.files.wordpress.com/2010/11/soda-filozofijas-3.pdf" rel="noopener noreferrer" target="_blank">philosophy</a> and practice of dealing with convicted criminals, houses various theories on what the point of punishing someone is, which may prove useful in this debate. <br> <br> </p><p>Here are three major theories on justice and punishment, the main arguments that support or oppose them, and some empirical data on how they work in real life. </p>
Retributive justice
<p> Perhaps the most straightforward idea about <a href="https://plato.stanford.edu/entries/punishment/" target="_blank" rel="noopener noreferrer">punishment</a> there is; if someone does something very wrong, they cause themselves to be worthy of <a href="https://plato.stanford.edu/entries/justice-retributive/" target="_blank" rel="noopener noreferrer">punish</a><a href="https://plato.stanford.edu/entries/justice-retributive/" target="_blank" rel="noopener noreferrer">ment</a>. This punishment is good by itself, even if there are no side effects. Most theorists in favor of this system also posit that the punishment should be proportional to the crime and that it should only affect those duly convicted. </p><p>Most people have a strong intuition about this. A famous thought experiment with many variations asks people to imagine that murderers enjoy long tropical island getaways where they can't hurt anyone after conviction but appear to be suffering in jail for TV cameras every now and again, to deter other potential murderers. Even if the deterrent works, you might feel that something is off here. Something that can only be corrected by inflicting some kind of punishment on the murderer. </p><p>University of Chicago Professor Albert W. Alschuler argues that retributive justice can have positive consequences in addition to any inherent justice it <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1893&context=journal_articles" target="_blank" rel="noopener noreferrer">offers</a>. </p><p>He puts forward the idea of a neighborhood where no one parks correctly, with drivers frequently boxing in others and parking too close to stop signs and fire hydrants. The laws against this are unenforced in that neighborhood. Because there is no consequence for inconsiderate parking, there is no reason to be considerate yourself; your neighbors will continue to act like this in any case. It ends up being the case that everyone acts this way to avoid being a sucker. He points out that this situation could be resolved by punishing the lawbreakers, as it would drive people back to a state of fair play. He summarizes the concept by saying, "Withholding punishment is inappropriate when doing so would encourage people to conclude, 'Everyone else is looking out for themselves, and I'll be a fool unless I become a little bit like them.'"<br> <br> </p><p>Arguments against retributive justice often focus on the difficulties of justifying harsh treatments (rather than just punitive damages or restitution) against the convicted in a way that aligns with broader principals of justice. Many theories that attempt to do so have been deemed unsatisfactory by other <a href="https://plato.stanford.edu/entries/justice-retributive/#QuesJust" target="_blank" rel="noopener noreferrer">philosophers</a>. Others point out that retributive systems only look backward on what has been committed and not forwards, to what situation we'd like to be in after matters are settled. </p>Deterrence
<iframe width="730" height="430" src="https://www.youtube.com/embed/G21L5bvxARM" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen></iframe><p> Deterrence theory is the idea that punishments for crime should exist primarily to discourage others from committing a similar crime or to assure the punished individual won't do it again. For example, making the potential costs of committing a crime too high to justify doing it in the first place. </p><p><a href="https://plato.stanford.edu/entries/bentham/" target="_blank" rel="noopener noreferrer">Jeremy Bentham,</a> the <a href="https://bigthink.com/mind-brain/most-eccentric-philosophers-history" target="_self">eccentric</a> founder of Utilitarianism, took a consequentialist approach to punishment. Seeing punishments as "always evil," he nevertheless hoped that the use of them could deter crime by others, increasing the total happiness of society overall and reducing the number of criminals in the future. He combined this support for deterrence with elements from other <a href="https://plato.stanford.edu/entries/bentham/#PenLawPun" target="_blank" rel="noopener noreferrer">theories</a>. </p><p><a href="https://en.wikipedia.org/wiki/Cesare_Beccaria" target="_blank" rel="noopener noreferrer">C</a><a href="https://en.wikipedia.org/wiki/Cesare_Beccaria" target="_blank" rel="noopener noreferrer">easre Baccaria</a>, a jurist in Milan during the Enlightenment, argued that crimes strained the social contract and that punishments should be used to assure that people continued to stick to it. Rather than a retributive scheme, this called for a deterrence system to ensure that neither those punished nor those aware of the punishments would desire to commit such crimes in the future. </p><p>Of course, there are objections to this idea as well. The most common revolves around the theory's assumption that most people who break the law weigh costs and benefits before doing so. A point many would contest. The previously mentioned thought experiment (with the murderer on the island) also points to another objection to pure deterrence theories. Deterrence can be produced without actually punishing the convicted, a situation that strikes many as unsatisfactory. </p>Rehabilitation
<iframe width="730" height="430" src="https://www.youtube.com/embed/q_hAE95LriQ" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen></iframe><p> Rehabilitative theories of punishment are diverse in their foundations. In general, they look at what causes a person to turn to crime and try to remedy the situation.<strong></strong></p><p><strong> </strong>Many proponents of rehabilitative theories argue that the decision to engage in criminal behavior is not as clear cut as other theories suggest. Factors of economic opportunity, addiction, mental illness, social issues, and circumstance can make it more or less likely that a person will be driven to crime. With that in mind, they suggest that the penal system should focus on resolving or mitigating those issues. </p><p>Others are more utilitarian in perspective. They argue that a person who went into jail with a criminal tendency is likely to come out the same way unless some action is taken. What that looks like, be it job training, education, counseling, or something else, depends on the situation. Making it less likely someone will return to crime by providing these services, they argue, benefits society as a whole. </p><p>This comparatively holistic and often humane approach doesn't mean there isn't a potential dark side to rehabilitation. The theory is very dependent on our understandings of psychology, sociology, and criminology being accurate. Mistakes can have horrible results. The modern practice of solitary confinement, a practice now deemed <a href="https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25633&LangID=E" target="_blank" rel="noopener noreferrer">torture</a> by the United Nations when used for more than two weeks, goes back to recommendations by the Quakers that leaving criminals alone and slightly sensory deprived would allow for <a href="http://learning.law.harvard.edu/frontiertorts/topics/solitary-confinement/" target="_blank" rel="noopener noreferrer">repentance</a> and reformation. They were extremely <a href="https://www.apa.org/monitor/2012/10/solitary" target="_blank" rel="noopener noreferrer">wrong</a>. </p><p>Even when it works, there are concerns about its implications. In his pro-retribution <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1893&context=journal_articles" target="_blank" rel="noopener noreferrer">essay</a> on criminal justice, Professor Alschuler cites Francis A. Allen's argument that a dedication to rehabilitation can make it challenging to limit the scope of state involvement, as "one immediate consequence of a rehabilitative regime is a drastic enlargement of state concerns. The state's interests now embrace not only the offender's conduct, but ... his motives, his history, his social environment." </p><p>The concerns of libertarians and others interested in a limited state are easy to comprehend. </p>Enough of this abstract philosophy, what does the data say?
<iframe width="730" height="430" src="https://www.youtube.com/embed/buCU6eP9iVA" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen></iframe><p> Empirical data does exist in a wide variety of areas related to the criminal justice system. Here, we can use it to see if the above conceptions of justice can do what they set out to do. </p><p>Retributive justice benefits from only seeking to deal punishment out to those convicted of crimes, which it often manages to do. It isn't easy to empirically measure such a thing, but its various side effects can be measured.</p><p>Studies show that those close to a convicted individual can share the effects of punishment despite them not having committed a crime <a href="https://www.sentencingproject.org/publications/6148/" target="_blank" rel="noopener noreferrer">themselves</a>. Similarly, a criminal record's impact can follow people long after they have "paid their debt to society," suggesting that it is more difficult to assure "proportionality" in sentencing than might be <a href="https://newrepublic.com/article/134712/wounds-incarceration-never-heal" target="_blank" rel="noopener noreferrer">supposed</a>. In the United States, unequal sentencing is a known and well-documented <a href="https://www.sentencingproject.org/publications/un-report-on-racial-disparities/" target="_blank" rel="noopener noreferrer">problem</a>, suggesting more difficulties in reaching the ideals of retributive justice in reality. </p><p>Deterrence theory has a fair amount of empirical evidence against it. Studies suggest that many crimes are committed under the rationality reducing influence of <a href="https://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf" target="_blank" rel="noopener noreferrer">alcohol</a>, that few people can tell you what the punishments for a given crime <a href="https://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf" target="_blank" rel="noopener noreferrer">are</a>, and that many people don't consider the possibility of being caught when planning a crime. </p><p>Longer sentences are associated with slightly higher recidivism <a href="https://www.prisonpolicy.org/scans/gendreau.pdf" target="_blank" rel="noopener noreferrer">rates</a>, the opposite of what a proponent of deterrence theory would expect from people with first-hand knowledge of the prison system. Likewise, programs like "scared straight" don't seem to do much. </p><p>However, Professor Daniel Nagin has argued for the existence of a general deterrent <a href="https://web.archive.org/web/20161005063450/http://faculty.washington.edu/matsueda/courses/587/readings/Nagin%201998.pdf" target="_blank" rel="noopener noreferrer">effect</a> while also suggesting it is difficult to use this to make any new policy. Dr. Valerie Wright suggests that a deterrent effect does <a href="https://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf" target="_blank" rel="noopener noreferrer">exist</a>, but adds that it is tied to how certain a person is that they will be caught and given a specific punishment rather than how terrible their punishment might be. </p><p>Rehabilitation has shown promise in achieving its goals. Efforts at providing <a href="https://static.prisonpolicy.org/scans/ny_ged.shtml" target="_blank" rel="noopener noreferrer">education</a> and <a href="https://www.apa.org/research/action/aftercare" target="_blank" rel="noopener noreferrer">addiction treatment</a> in the American prison system lead to reductions in recidivism. The Norwegian prison system, based on rehabilitation and renowned for its <a href="https://www.theguardian.com/society/2013/feb/25/norwegian-prison-inmates-treated-like-people" target="_blank" rel="noopener noreferrer">humanity</a>, boasts one of the lowest recidivism rates in the <a href="https://www.salve.edu/sites/default/files/filesfield/documents/Incarceration_and_Recidivism.pdf" target="_blank" rel="noopener noreferrer">world</a>.<br> </p><p>Despite this, American efforts have yet to match the Norwegian system's effectiveness levels, and some studies also suggest that modern treatment programs have little effect on individuals with <a href="https://www.gwern.net/docs/algernon/2006-harris.pdf" target="_blank" rel="noopener noreferrer">psychopathy</a>, who are disproportionately incarcerated and have a high rate of <a href="https://www.nytimes.com/2012/05/13/magazine/can-you-call-a-9-year-old-a-psychopath.html" target="_blank" rel="noopener noreferrer">recidivism</a> to begin with. <br></p><p>What this data means is going to be influenced by which of the above arguments appeal to you. Do the side effects of retributive policies or the problems we have in assuring equal punishments for similar crimes outweigh the moral intuition towards punishing criminals? Do failures in rehabilitative practices make the concept worthless? Can deterrence be of use even if we know a disproportionate number of criminals aren't acting along the lines of its assumptions? </p><p>The raw numbers can't answer these questions by themselves. Philosophy has to step in and provide the tools for value judgments, answer questions of justice, and help determine where the line between theory and practice has to be drawn. </p><p>We'll probably never be rid of the need to do something with people who harm or violate the rights of others. What we do with them is another question. No definitive answer exists for what models of justice and punishment are best. Still, by considering the philosophy and raw data around each model, we might find something that works for our society. While many people would support a system that uses elements of all three of these considered philosophies, alongside others, how much of each to use remains the subject of continual debate. </p>
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Study: Private prisons result in more inmates, longer sentences
The Labour Economics study suggests two potential reasons for the increase: corruption and increased capacity.
18 September, 2020
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<p>The '80s and '90s witnessed a rash of strict sentencing laws. Voters who lived through the <a href="https://www.brennancenter.org/our-work/analysis-opinion/americas-faulty-perception-crime-rates" target="_blank">rise of violent crime in the '60s and '70s</a> offered full-throated support for such laws. Anxious to woo such voters, legislators hawked <a href="https://www.theatlantic.com/politics/archive/2014/04/a-timeline-of-the-rise-and-fall-of-tough-on-crime-drug-sentencing/360983/" target="_blank">tough-on-crime</a> rhetoric and passed ever-punitive legislation, such as Reagan's creation of mandatory minimum sentences through <a href="https://www.theatlantic.com/politics/archive/2014/04/a-timeline-of-the-rise-and-fall-of-tough-on-crime-drug-sentencing/360983/" target="_blank">the Anti-Drug Abuse Act of 1986</a>.</p><p>In hindsight, the consequences are as obvious as they are unsettling. Stricter laws gave judges less latitude in sentencing, and prison populations skyrocketed across the country. By 1990, state prison populations reached <a href="https://www.bjs.gov/content/pub/pdf/p00.pdf" target="_blank">115 percent of their highest capacity</a>. Unable to house their new charges, nor garner equally enthusiastic support for the taxes necessary to fund building new facilities, some states turned to for-profit prison companies to manage the influx. As of 2019, <a href="https://www.vox.com/policy-and-politics/2019/12/1/20989336/private-prisons-states-bans-califonia-nevada-colorado" target="_blank" rel="noopener noreferrer">28 states</a> incarcerate people in for-profit prisons.</p><p>Given this history, it's not without irony that <a href="https://www.sciencedirect.com/science/article/abs/pii/S0927537120301123" target="_blank" rel="noopener noreferrer">a new study published in Labour Economics</a> found privately-run prisons don't help states manage incarceration. The presence of such prisons may actually increase the number of incarcerated individuals as well as their sentence lengths.</p>
Cool hand rebuke
<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNDQyMTIyNy9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY0NjY1NTYyOH0.0MCPKN3If94mYCNf3mMNrnTvJXjXN_bKLhgk9203EXk/img.jpg?width=917&coordinates=0%2C0%2C0%2C0&height=453" id="1627b" class="rm-shortcode" data-rm-shortcode-id="6d76421ba1ea0de4b09956b97e80c384" data-rm-shortcode-name="rebelmouse-image" data-width="917" data-height="453" />A chart showing prison population rates (per 100,000 people) in 2018. The United States has the highest rate of incarceration in the world.
<p>Researchers at Washington State University sought to determine how the availability of private prisons affected rates of incarceration in the United States. To answer that question, they performed a regression analysis on state and individual data from 1989 to 2008. Their analysis revealed a positive correlation.</p><p>As the number of private-prison beds increased per capita, so too did sentence lengths and the number of incarcerated people per capita. All told, the increase was 178 prisoners per million population per year. That comes to a taxpayer-funded bill between approximately $2-10 million annually—assuming those additional prisoners are housed in privately-run facilities. When it comes to increased sentence lengths, Gregmar Galinato, a professor in WSU's School of Economic Sciences who co-authored the study, notes that not all crimes are judged equally.</p><p>"For crimes like property damage, fraud, or non-violent drug crimes—crimes where judges have more leeway in sentencing—states saw higher sentencing rates and significant increases in sentence lengths when private prisons were established," he <a href="https://news.wsu.edu/2020/09/15/privatized-prisons-lead-inmates-longer-sentences-study-finds/" target="_blank">said in a release</a>.</p><p>The researchers advanced two potential explanations for this interstate discrepancy. The first is good old-fashioned <a href="https://www.nytimes.com/2016/09/16/us/mississippi-closes-private-prison-walnut-grove.html" target="_blank" rel="noopener noreferrer">corruption</a>. In states where they operate, for-profit companies can incentivize legislators to push for stricter sentencing laws and bribe judges to inflate sentence lengths.</p><p>A haunting modern example is the "<a href="https://www.nbcnews.com/news/us-news/pennsylvania-seeks-close-books-kids-cash-scandal-n408666" target="_blank" rel="noopener noreferrer">Kids for Cash</a>" scandal. In 2007, the Juvenile Law Center began receiving reports that hundreds of Pennsylvania juveniles were being tried and sentenced without defense lawyers present as representation. An investigation revealed that Robert Powell, a co-owner of two private juvenile prisons, was paying off two judges to return guilty verdicts and severe sentences to bolster incarceration at his facilities.</p><p>The second explanation is simply the availability of prison beds. As Galinato explains, judges become more hesitant to send non-violent offenders to prison in states where capacity is a concern. However, privately-run prisons reduce such concerns, making it easier for judges to mete out harsher punishments.</p>Who profits with for-profit prisons?
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="97ac37e6c7f6f22ec130ea2d56871701"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/dB78NV2WpWc?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span><p>The Labour Economics study suggests that privately-run prisons do convicts a few favors at the moment of sentencing. However, proponents of private prisons often point to other benefits when making their case. Specifically, they argue that private prisons reduce operating costs, stimulate innovation in the correctional system, and reduce recidivism—the rate at which released prisoners are rearrested and return to prison.</p><p>In regard to recidivism, the research is mixed. <a href="https://journals.sagepub.com/doi/abs/10.1177/0011128799045001002" target="_blank">One study</a> compared roughly 400 former prisoners from Florida, 200 released from private prisons and 200 from state-run facilities. It found the private-prison cohort maintained lower rates of recidivism. However, <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9133.2005.00006.x" target="_blank" rel="noopener noreferrer">another Florida study</a> found no significant rate differences. And two other studies—one from <a href="https://journals.sagepub.com/doi/abs/10.1177/0011128799045001002" target="_blank" rel="noopener noreferrer">Oklahoma</a> and another out of <a href="https://journals.sagepub.com/doi/abs/10.1177/0734016813478823" target="_blank" rel="noopener noreferrer">Minnesota</a>, both comparing much larger cohorts than the first Florida study— found that prisoners leaving private prisons had a greater risk of recidivism.</p><p>The research is also inconclusive regarding cost savings. <a href="https://www.hamiltonproject.org/assets/files/economics_of_private_prisons.pdf" target="_blank" rel="noopener noreferrer">A Hamilton Project analysis</a> noted that such comparisons are difficult because private prisons, like all private companies, are not required to release operational details. In comparing what studies were available, the authors estimate the costs to be comparable and that "in practice the primary mechanism for cost saving in private prisons is lower salaries for correctional officers"—about $7,000 less than their public peers. They add that competition-driven innovation is lacking as the three largest firms control nearly the entire market.</p><p>"We aren't saying private prisons are bad," Galinato said. "But states need to be careful with them. If your state has previous and regular issues with corruption, I wouldn't be surprised to see laws being more skewed to give longer sentences, for example. If the goal is to reduce the number of incarcerated individuals, increasing the number of private prisons may not be the way to go."</p>
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