Mimesis Law
20 October 2017

Alaska’s SB 91: The Anatomy of Justice Reform Hit Job

January 30, 2017 (Fault Lines) – People think that passing a bill is the hard part of justice reform, but the real challenge is often defending these gains. Many reforms flounder in the face of a particularly horrific crime or a spike in violence, and the building pressure on Alaska’s justice reform bill, SB 91, shows exactly how opponents of justice reform go about dismantling a law.

SB 91 was passed to reduce recidivism and save money through a remarkably ambitious package of reforms. Among the highlights are reducing most cases of drug possession from a felony to a misdemeanor, reducing sentences for a wide array of felonies, and eliminating the use of incarceration for such world-shattering threats to society as shoplifting something less than $250.

It also displays a level of mercy not commonly found in the justice system by removing food stamp restrictions for people convicted of drug offenses, one of the many side effects of conviction that, while legally classified as “totally not a punishment,” really kind of feels like one.

SB 91 had its detractors, but to the credit of bill sponsors, John Coghill and Johnny Ellis, it survived and passed. However, little more than a year later, SB 91 faces increasing pressure, and the strategy for bringing it down follows a familiar blueprint.

Step one, you need a theory. A good counter-reform movement needs a good theory about why this bill is not merely bad, but likely to bring about the end of the world and all of civilization. Thankfully, there’s an old standby that rarely fails to do the job: “the emboldened offender.” Criminals you see, despite having far less proficiency in reading and data analysis than the general population, are constantly monitoring our legislatures for even the slightest signs of weakness. At the first sign of it, they strike!

The beauty of the emboldened offender theory is that it works for anything. Legally protest police abuse? You just emboldened offenders into committing Chicago’s latest homicide spike. Focus on probation and diversion for low level offenses in Wisconsin? Sure, just go on emboldening violent criminals.

Notice how selectively brilliant these emboldened offenders are. In Chicago, they respond to protests, not say, a CPD homicide clearance rate so abysmally low that the answer to “how to get away with murder” is basically “commit it in Chicago.” In Wisconsin, they’re emboldened by proxy: probation and diversion programs are generally for drug offenses not violence, but people are emboldened to commit violence anyway.

So when SB 91’s opponents needed a theory to bring down the bill, they went for the classic:

State law and public safety officials citing “emboldened offenders” want the Criminal Justice Commission to recommend a change to the new law making a defendant’s third low-level theft arrest within five years a more serious crime that warrants stiffer penalties.

What changes emboldened these crooks? Three or more convictions for theft in the third degree (goods between $1,000 and $25,000), a class C felony, now carries a presumptive sentence of two to five years instead of three to five years. If only we had known an extra year at the lower end of the sentencing range was all that stood between us and anarchy.

Additionally, class A misdemeanor theft now has carries penalties of up to 30 days in jail, down from a year, and class B misdemeanor theft carries a penalty of 10 days, down from 90. A couple of months is all it takes to send to criminals rampaging (though they are strangely not affected by the fines for class A misdemeanors more than doubling from $10,000 to $25,000).

Do these changes seem relatively esoteric? Does it seem like you’d need a solid legal database and a couple of hours searching to know what sentences have changed and how? Never mind that. The offenders know – they’re always waiting, watching, using their below-average mathematical proficiency to calculate precise risk-to-reward ratios based on small discretionary changes in sentence length.

Once you’ve got your theory, it’s time for step two: apply it to every bad thing you can find. Between accusations by police and journalists, SB 91 is taking the rap for a truly bewildering array of crimes. Purported rise in shoplifting? SB 91 did it. Car thefts going up? Thanks SB 91. Bizarre murder-kidnapping that even prosecutors admit has literally nothing to do with SB 91? Our top story tonight: parents question the effects of SB 91.

To really drive home the point though, you need a horrific crime story. Alternatively, a very mundane story will do if you frame it right:

Trevor Bernard is the kind of Class C felony defendant who raises red flags under the new law. The 27-year-old from Anchorage led Alaska State Troopers on a high-speed pursuit in a stolen pickup that began near the Knik River on the Old Glenn Highway and ended only after he was forced into a ditch… Bernard eluded [a trooper] for 3 miles, made a U-turn and started driving toward Palmer at over 80 mph…

Or, stripped of its florid prose: “a very short chase at slightly above freeway commuting speeds ends without injury.”

Finally, once your audience is scared and angry, you hit them with step three – get rid of those nasty reforms:

Because of cases like Bernard’s, the departments of law and public safety are asking the Criminal Justice Commission to recommend jail for first-time Class C felonies.

Reducing incarceration for low-level, non-violent offenders is the rallying cry of the reform movement, the banner almost everyone can get behind. It survived about a year in Alaska before the wolves closed in for the kill.

This blueprint isn’t unique. In 2013, Arkansas rolled back many reform efforts following a high profile murder and DC politicians are preparing to cut back on reduced sentencing law for youth following a scorching series of Washington Post articles on youths who committed violent acts. Justice reform is always vulnerable to a single bad story.

What makes the attack on SB 91 unique however, is just how thin it is. People attacking justice reform usually have a homicide or two to work with. SB 91’s plucky little opponents are building a remarkably vocal campaign out of car thefts, the odd chase, and “emboldened offender” rhetoric that hasn’t changed since the Nixon years.

This should worry reformers. Alaska represents the best likely case for most reform efforts: no high-profile murders, no wave of violence, just property crimes and a determined opposition. If this can threaten justice reform, anything can and if reformers don’t figure out a way to counter opponents’ time tested counter-reform strategy, all of their victories will be erased a lot more quickly than they were won.

4 Comments on this post.

Leave a Reply

*

*

Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • SPM
    30 January 2017 at 11:24 am - Reply

    While I agree with the general thrust of this article, I am not sure the following sentence is valid:

    “Criminals you see, despite having far less proficiency in reading and data analysis than the general population, are constantly monitoring our legislatures for even the slightest signs of weakness. At the first sign of it, they strike!”

    Although that sentence was sarcasm, I think there is plenty of evidence that it actually might be true. Criminals, in general, are expert at finding and exploiting the tiniest hole in laws and regulations to run scams. It still amazes me that I was unable to get a temporary PO box years ago while I was moving from grad school to my first job, yet someone was able to get a federal tax refund by fraudulently filing my tax return. The long list of prison escapes from Alcatraz to Clinton shows once again that criminals are expert at finding and exploiting weaknesses.

    While one may argue that those are the “elite” of the “dumb criminals” – the smart ones haven’t been caught – the expertise of the lowest incarcerated criminals in smuggling and hiding contraband and creating weapons far exceeds what any group of lawyers would be able to accomplish in similar circumstances.

    So while there are many valid reasons to oppose the Alaska “reform of the reform”, the idea that criminals aren’t smart enough to understand the practical effects of legislation is not one of them.

  • Brian Cowles
    31 January 2017 at 11:49 pm - Reply

    Perhaps, but remember Mr. Bieler is necessarily speaking in generalities and averages. I found a 2003 DOJ report on inmates (available here: https://www.bjs.gov/index.cfm?ty=pbdetail&iid=814) with some relevant facts. While the report is 14 years old, it appears to be the most recent available on the topic and I see no reason to assume things have changed radically since then.

    For starters, about 54% of the prison population then had neither a high school diploma or GED. 68% of them never completed high school. Only 12.7% of them had completed any post-secondary education. Close to 15% never even went to high school at all. Furthermore, aroumd 45% reportedly attempted no self-education at all between bouts of incarceration. Also, apparently, having a prior arrest roughly doubles an inmate’s chances to have never finished high school.

    Your assertion “Criminals, in general, are expert at finding and exploiting the tiniest hole in laws and regulations to run scams” may hold some merit, however. Those incarcerated for property crimes (which I assume includes scammers) have marginally better educations than others, on average (0-0.3% more college graduates, 0-3.8% more with diplomas or GEDs), but keep in mind the margin of error on this study averages about 0.5%.

    As well, if you had taken the time to read this (https://nces.ed.gov/surveys/piaac/results/prison_summary.aspx), as Mr. Bieler had linked to it, it also shows the below-average literacy and numeracy rates of the prison population.

    That said, I would love to see some evidence of your assertion. Contrary opinions are always welcomed around here.

  • What the Polls Don’t Say About Criminal Justice Reform
    20 February 2017 at 8:49 am - Reply

    […] released as part of a reform, but the media can make a serviceably-terrifying crime wave out of shoplifting and car thefts if need […]

  • Playing the Hand You’re Dealt in Prison Reform
    2 March 2017 at 9:18 am - Reply

    […] in junkies shoplifting and stealing cars to get a fix. This much is already intolerable: Alaska’s already rolling back its reforms, and California may soon follow. As for enduring violent crime, that remains completely unthinkable. […]