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From Murder Bumps to Brain Scans: New Ways to Excuse Crime

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All this week, NPR is reporting on new genetic research to determine if some people have genes that make them kill people.

That is, if by “report” you mean shamelessly advocate and if by “genetic research” you mean paying expert witnesses to misrepresent academic findings in the courtroom.

Bradley Waldroup: Destined to Kill?

In the subtly-titled “Can Your Genes Make You Murder?” reporter Barbara Bradley Hagerty answers: Why of course, yes, if it will get that poor man in the trailer park off from shooting his wife’s best friend eight times and then hacking up his wife with a machete, and to heck with him being drunk and just deciding to do it!

When the police arrived at Bradley Waldroup’s trailer home in the mountains of Tennessee, they found a war zone. There was blood on the walls, blood on the carpet, blood on the truck outside, even blood on the Bible that Waldroup had been reading before all hell broke loose.

Note the “all hell broke loose” sentence construction, as if it wasn’t Waldroup doing something, but that something beyond his control was acting on him.  Like genes.  Or hell-ghosts.

Or maybe he became a zombie.

In other words, it took a mere one and a half sentences for Ms. Hagerty to start singing the defense attorney’s refrain of diminished capacity.

Assistant District Attorney Drew Robinson says that on Oct. 16, 2006, Waldroup was waiting for his estranged wife to arrive with their four kids for the weekend. He had been drinking, and when his wife said she was leaving with her friend, Leslie Bradshaw, they began to fight. Soon, Waldroup had shot Bradshaw eight times and sliced her head open with a sharp object. When Waldroup was finished with her, he chased after his wife, Penny, with a machete, chopping off her finger and cutting her over and over.

Ordinarily, this would be a slam-dunk murder conviction.  After all, it takes some time to pump eight bullets into an innocent woman and then tear around chopping up another one.  But then, enter the “experts”:

[Defense attorney Wylie] Richardson says he realized that the testimony at trial would be “very graphic.” The defense team, he says, did not try to dismantle the graphic evidence but rather sought to “give a broader and fuller picture of what that was.”  How to do that? The answer, it turned out, lay in Bradley Waldroup’s genes.

Wouldn’t that be “the defense said the answer lay in Bradley Waldroup’s genes”?  No?

Immediately, Richardson went to forensic psychiatrist William Bernet of Vanderbilt University and asked him to give Waldroup a psychiatric evaluation. Bernet also took a blood sample and brought it to Vanderbilt’s Molecular Genetics Laboratory. Since 2004, Bernet and laboratory director Cindy Vnencak-Jones have been analyzing the DNA of people like Waldroup.  They’ve tested some 30 criminal defendants, most of whom were charged with murder.

They’ve tested a whole 30 defendants since 2004.

They were looking for a particular variant of the MAO-A gene — also known as the warrior gene because it has been associated with violence. Bernet says they found that Waldroup has the high-risk version of the gene.

Oh no.  Not only does the killer have the Warrior Gene, he’s got the High Risk Warrior Gene!  And that’s not all.

“His genetic makeup, combined with his history of child abuse, together created a vulnerability that he would be a violent adult,” Bernet explains.

Remember when this used to be called phrenology?

You know, the discredited science of feeling people’s heads for things like “murder bumps” and promiscuity centers?

Boy, those Victorians sure were crazy.  And prejudiced, because, of course, phrenologists got busy fast dividing mankind into superior and inferior groupings by doing things like measuring people’s foreheads and noses, and you know where that ended up.

Phrenology also made policing easier, because you could simply categorize people by their physical characteristics and not wait for them to actually do anything wrong before sending them to the poorhouse.  Or Australia.

Thank goodness we’re far more advanced than those Victorians. Now we have experts convincing jurors that people can’t be held responsible for murders they actually did commit because their genes made them do it:

[Vanderbilt researcher William] Bernet cited scientific studies over the past decade that found that the combination of the high-risk gene and child abuse increases one’s chances of being convicted of a violent offense by more than 400 percent. He notes that other studies have not found a connection between the MAO-A gene and violence — but he told the jury that he felt the genes and childhood abuse were a dangerous cocktail.  “A person doesn’t choose to have this particular gene or this particular genetic makeup,” Bernet says. “A person doesn’t choose to be abused as a child. So I think that should be taken into consideration when we’re talking about criminal responsibility.”

So, essentially, Bernet “feels” a non-proven connection between violence and a gene that non-murderers also possess ought to mitigate culpability for violent acts.  Enough jurors bought this story:

[Juror] Debbie Beaty, says the science helped persuade her that Waldroup was not entirely in control of his actions.  “Evidently it’s just something that doesn’t tick right,” Beaty says. “Some people without this would react totally different than he would.”  And even though prosecutors tried to play down the genetic evidence, Beaty felt it was a major factor.  “A diagnosis is a diagnosis, it’s there,” she says. “A bad gene is a bad gene.”

Well, thank you, Dr. Beaty.

After 11 hours of deliberation, the jury convicted Waldroup of voluntary manslaughter — not murder — and attempted second-degree murder.  Prosecutor Drew Robinson was stunned.  “I was just flabbergasted. I did not know how to react to it,” Robinson says.  Nor did fellow prosecutor Cynthia Lecroy-Schemel. She worries that this sort of defense is the wave of the future.  “Anything that defense attorneys can have to latch onto to save their client’s life or to lessen their client’s culpability, they will do it,” Lecroy-Schemel says.  Waldroup’s attorney, Wylie Richardson, says she’s right.  “I would use it again” under the right circumstances, he says. “It seemed to work in this case.”

It seemed to work in this case. There’s a scientific standard we can all be proud of.

NPR’s Three-Part Series, Inside the Criminal Brain

Real Recidivism *Update*

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I received this interesting note from Dr. Greg Little (see yesterday’s post) explaining his research methods in more detail and discussing his findings:

Overall you present a good summary. But I can answer your questions. The study’s subjects all applied for entry into a drug treatment program (MRT) operated by the Shelby County Correction Center in Memphis, TN from 1986-1991. All were felons serving from 1 to 6 years. The control group was formed from a smaller number of individuals who were randomly excluded because of limited treatment slots. The treated subjects were randomly selected to enter…after all the subjects were placed into a pool of eligibles.

So both the study group and the control group were people who had applied to take part in a drug treatment program.  That solves the problem of self-selection, in a way, making the data on the effect of the treatment more reliable, for the main difference between the two groups would be the treatment program, and only the treatment program.

It makes me wonder about the recidivism rates for offenders who didn’t try to apply for the drug treatment program, though (not that you can get a recidivism rate much higher than 94%).  Were they simply not substance abusers?  Were they excluded because of behavioral issues such as violence?  Additionally, felons serving more than six years were excluded from the study, so we don’t know the recidivism rates for them.  Undoubtedly, members of that group include the sorts of violent criminals whose propensity for recidivism is most worrying.  And offenders serving less than a year weren’t counted either.

None of this is to say that the study isn’t valuable, nor that the researchers here are misrepresenting their findings.  But it’s important to be aware of the difference between what a study proves and what it cannot prove.  Too often, the media ignores this difference.  And when the research is conducted by activist organizations with anti-incarceration agendas (not the case here), like the Pew Foundation, or the Sentencing Project, the claims they make are often extremely unreliable.  At best.

Dr. Little continues:

There were no differences between the treated and control groups. There have been about a dozen prior published studies in peer-reviewed journals on these groups covering their time periods from 1 to 10 years after release. We were interested in what honestly happens to these people after 20 years of release. The local government, which we are not affiliated with, supplied the data.

You are correct that the authors (I am the senior author) are engaged in starting programs that reduce recidivism. We all make our living in criminal justice, we are all long-term professionals, and I have been in the field since 1975. All rearrests, only with minor traffic charges excluded, were collected as were all reincarcerations. The criminal justice system has always supplied misleading statistics, and that’s something we have battled for decades and have included such ethically-challenged issues in our textbooks and articles. There is a difference between what could be called “accurate” and what is “true” or “honest,” and we wanted to present a true and completely honest picture of what happens after 20 years. The data were, quite frankly, highly disappointing, but also somewhat encouraging. The real point is that there is a proportion of offenders that will return after their release no matter what we do. Right now, reducing those rearrested from 94% to 81% after 20 years is the best anyone has found. Reducing the reincarceration rate (which is rearrest, conviction, plus new sentence) is from 82% to 61%, also the best ever found. It means even using the best treatment known currently, 81% will be rearrested and 61% will still be reincarcerated. Without using that method, 94% are rearrested and 81% are reincarcerated.

The link to the original full article can be found here:
http://www.i-newswire.com/what-happens-over-twenty-years/21666

As I wrote yesterday, I don’t oppose realistic rehabilitation efforts (who would, really?).  What I object to is using substance abuse as an excuse for crime, which results in untold numbers of offenders escaping punishment simply because they say they’re helpless addicts.  And that doesn’t do anyone, including them, any good at all.  Nor does it help to romanticize criminals, or encourage them to believe that they are victims of society, as so many rehabilitation programs do.  Changing Lives Through Literature, for example, seems less about “rehabilitating” offenders than convincing them that their own convictions were unjust (see here and here).

Unfortunately, such anti-incarceration activists (who are currently in force in the Justice Department, in academic departments, and, of course, in the rehabilitation industry) never change their tune, no matter the evidence presented about the inevitability of re-offending.  Their first line of defense is claiming that recidivism rates are not nearly as high as many believe.  But hand them a 94% re-arrest rate, and they will say it’s proof that prison doesn’t work.  If we never incarcerate anyone, the line goes, then there will be less crime (thank goodness they’re not in charge of the laws of gravity).

A few years ago, I ran into a former co-worker who attributed his ability to kick a cocaine habit to a long sentence behind bars.  He never would have stuck with drug treatment, he told me, if he had not been incarcerated.  Then he listed other co-workers we knew who died young.  He considered himself lucky.  The so-called drug war, and stiff sentencing, doesn’t get enough credit for saving lives.

What do we do with a 94% re-arrest rate?  There’s no one good answer.  But one thing we definitely should not do is keep pretending that all that crime doesn’t really exist.

Real Recidivism: The Numbers Aren’t Good

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Whenever some academician tells the media that this program or that program has “reduced recidivism,” or that “this group of offenders aren’t likely to commit more crimes” there are three questions you should always ask:

  • how long were the offenders tracked after they got out of prison?
  • how were offenders selected for (or excluded from) study?
  • who paid the academician?

I have an especially hard time trusting studies that are designed to test one specific program or sentencing initiative.  Such studies are usually designed by people who have a vested interest in proving the program a success — either the program directors themselves or some professor or consulting firm hired to evaluate their outcomes.

It’s sort of like telling a bunch of ambitious eleventh graders to grade their own performance on the SAT’s . . . based on effort.

Unfortunately, there is no graveyard where skewed studies go to die: they live on in debates about recidivism, sentencing, and crime.  This is how myths like “sex offenders almost never re-offend” seep out into the conventional wisdom.

How do you cook the books on recidivism? You follow tiny pools of offenders.  You pick offenders who have already shown initiative by enrolling in a program or being admitted into one — self-selecting, ideal participants.  You use partial information: convictions instead of arrests; post-plea sentencing instead of pre-pleaded charges.  Mostly, you follow offenders for very short periods of time after they are released, like, down the street to the first stoplight.

When you don’t do these things, this is what the headline looks like:

Recidivism rate worse than statistics indicate, Memphis-area study finds

20 years of research discovers 81 percent of former inmates end up back behind bars

Yikes.

Jeff Smith had been free of drugs for four years. Two of those years were during a stay at the Shelby County Correction Center and two were while working at the Salvation Army after his release from jail.

It was at the Salvation Army that Smith, 54, says he felt “a sense of purpose for the first time in years.” He was doing what he says he loves best — working as a carpenter and furniture refinisher. And he counseled other former inmates to try to keep them from repeating their mistakes.

Smith wishes he had followed his own advice. “I was tempted by the devil, and I failed,” he says. Carpentry, counseling and church services at the Salvation Army weren’t enough to break the “revolving-door” cycle that means, like Smith, up to 94 percent of former inmates will be rearrested and up to 81 percent will wind up behind bars again.

94% re-arrest rate.  This is from a 20-year study that recorded every re-arrest and re-conviction, avoiding the “partial information” scheme.  The study itself was conducted by people who have a program of their own to promote: they claim that their moral reconation therapy (MRT) resulted in a 25% decrease in recidivism:

About 94 percent of inmates receiving only standard counseling had been rearrested and 82 percent of them wound up back behind bars.  Of those receiving MRT therapy, 81 percent had been rearrested and 61 percent again wound up behind bars. It was reduction of about 25 percent from the group that did not receive MRT therapy.

Well, OK.  It’s not that I think that there’s no such thing as rehabilitation.  Consequences and 12-steps and therapy do work.  But I’d need to know a lot more about their selection process to buy the 25% claim.

Besides, when anti-incarceration activists claim that we save X amount of money by not incarcerating someone, that’s just untrue.  Most offenders receive significant social service dollars — housing, medical, food stamps — when they are out of prison as well, not to mention the price of policing them and the costs that arise every time they commit an additional crime, which 94% of them apparently will do.  Offenders who return to abusing substances when they get out of prison are particularly costly as their health deteriorates and their habits drag down the families and neighborhoods around them.  Innocent bystanders and misinformed taxpayers pay the tab either way.

Without acknowledging these costs, statements like this are, frankly, meaningless:

[T]he cost of housing an inmate like Smith is more than $24,000 a year, so cutting total costs by 25 percent would mean a huge savings.

Yet public policy debates rise and fall on questionable claims like these. The media needs to do a much better job of skeptically approaching all research claims.  After all, if there is reliable research showing that everything policymakers have been believing is not only wrong, but staggeringly wrong, the debate needs to be re-calibrated:

Tennessee Department of Correction studies show recidivism rates of about 51 percent over a three-year period, and national studies show recidivism averages of roughly 65 percent over three years. But [Dr. Greg] Little and [Dr. Kenneth] Robinson say the numbers keep going up over time, and the numbers are higher because most studies don’t count re-incarcerations that took place in other states or in courts other than the original case. For instance, an inmate released on state probation or parole is seldom counted as a recidivist if later jailed for a federal crime.

There is a very large difference between 51% recidivism and 94% recidivism.  You don’t need to throw out the rehabilitation baby with the research bathwater just because the research bathwater is hopelessly dirty, but you should wash the baby in clean water.


An Interesting Story From the Memphis Commercial Appeal: Not Minimizing Crime

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If only journalists and politicians in Atlanta simply acknowledged the real price of crime, instead of arguing over numbers and criticizing the public for caring.  Here is how the Memphis Commercial Appeal handles a “drop-in-crime-but-still-too-much-crime” story:

[P]olice crime stats show substantial drops in 2009, more than 16 percent below the same period in 2006.

But even below-average crime in Memphis, even on a “slow” week, still means hundreds of burglaries, hundreds of assaults, arrests for drugs and prostitution, broken car windows, stolen vehicles, sexual assaults and, on this night, an extraordinarily violent end for one man, the victim of a robbery in his apartment.

This is not sensationalizing crime: it is merely reporting it:

Murder and other violent crimes receive most of the attention in Memphis, the city’s image plagued by an average of more than 160 murders per year since 2001. But the city’s “true” crime problem — according to The Commercial Appeal’s examination of a decade of MPD data and an intense week on the streets with officers — follows a less-sensational story line.

It is the slow drip of economic crime and household conflict that runs a steady flow of poison into neighborhoods from Whitehaven to Cordova, from Frayser to Hickory Hill.

It is civic death by a thousand paper cuts.

No foot-dragging, no snide references to “perceptions” of crime.  Just reporting:

It is James Etta Moore, whose South Orleans home was burglarized five times in six months.

It’s Moore discovering a prostitute having sex in her backyard.

It’s 12-year-old Cornecia Crowley standing nearby as her dog, Cinnamon, is gunned down for barking at a passerby.

It is a fearful Robert Nelson as police arrive to investigate a break-in at a neighbor’s home near Nutbush. Months earlier, the same neighbor was dragged from his porch, beaten and robbed.

“I sleep with one eye open, and that’s not good,” says Nelson, who has lived in the neighborhood most of his life. “On Friday nights, I barely sleep at all.”

The reporters don’t neglect the courts’ role in keeping offenders out of jail and on the streets:

At the Mt. Moriah precinct, officers spend Monday morning celebrating the capture of an 18-year-old named Jermaine Cobb — known as “Moose” and with a penchant for taking computers and televisions.

“He turned 18 on the 15th of June, and he’s been locked up three times already for burglary,” Maj. Stan Eason said. “He’s our biggest headache in the Oakhaven area, really for this precinct. We’ve been dealing with him since he was 15.”

“Moose” was arrested July 13 for aggravated burglary and theft of property. He was released on July 15 on a $20,000 bond. He got locked up again July 27 for assault. He was released on July 28. He was arrested again July 30 for aggravated burglary, and they released him on Aug. 16 on a $30,000 bond. Then he was arrested, again, Aug. 20 for aggravated burglary.

“What’s difficult for us is when we’re talking to the victims we say, ‘We can arrest them, but we can’t keep them in,’” said Michael Rallings, the Mt. Moriah commander recently promoted to deputy chief. “It has to be extremely frustrating for them, but it’s also very aggravating for us because we want them to stay in there also.”

Everybody knows the courts are the problem.  The cops catch ‘em, at significant expense and significant risk, and the judges and prosecutors let ‘em go.  So when is somebody going to do something about it?  Anything?

The affidavit shows that 32-year-old Jimmy Norman was caught in the 1800 block of Walker Avenue in a woman’s 2009 Honda Accord. The driver’s-side window had been broken out, there were pry marks on the window frame and the car had been ransacked.

It was the second time Norman had been arrested this year. Garrett explained that residents in the Annesdale-Snowden area had been having enormous problems in the spring with car break-ins, “so we spent a lot of money and we caught him but then he got a $1,000 bond.”

That elicited groans and laughs throughout the room; it only takes $100 to spring someone on $1,000 bond.

To Garrett, Norman is the poster child for why the MPD can expect hundreds of reports per week and many thousands per year for the kind of crimes that may lack TV-news drama but degrade the quality of a city’s life for everyone.

“We think he broke into several cars before we got him this time,” Garrett said. “He resists arrest and then he ends up telling the officers, ‘You do what you do, and I’ll do what I do.’ And he gets a $4,000 bond.

“That is killing us. It’s pure killing us.”

The article goes on to cover everything from the increase in home burglaries, to domestic violence, to gun crime, to the phenomenon of disorganized-yet-well-armed youth gangs.

It is part of a series that includes a discussion of city crime rankings and statistics, but nowhere is there the sort of dismissiveness of public concern that seems to color so much of the reporting (not to mention the politicking) on crime in Atlanta.

Read the rest here.

A Recommendation on Acknowledging Recidivism From Tennessee

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More interesting crime coverage from The Tennessean, this time an editorial detailing the legislative proposals of the Tennessee Public Safety Commission, a coalition of police chiefs, sheriffs and district attorneys.  Every state should take note of one of the get-tough-on-recidivists recommendations they’re making:

[Another] proposal of the group is for requiring each home burglary committed in a 24-hour period to count as separate cases. They would be considered separate previous convictions. Prosecutors say many burglars are aware that hitting several homes in one 24-hour period is considered only one case. That should change.

It’s not just burglaries committed within twenty-four hours of each other that get telescoped down to one charge.  Look at recidivists’ rap sheets.  One of the great injustices perpetrated by our justice system is the near-automatic dismissal of multiple crimes whenever a defendant gets charged with one offense.  Break into five homes, get caught, get charged and sentenced on one burglary count.  The other four burglaries are quietly shelved.  And if the defendant is a first offender, he may get away with all five charges.

The same is even true of violent crime.  By choosing expediency over actually responding to crimes, the criminal justice system is essentially saying to victims: your victimization doesn’t count.  The person next to you; his victimization counts.  The person on the other side: he is being ignored by the justice system, just like you.  

There is no equal protection for crime victims.  

This is the way it has been for so long that people who work within the criminal justice system would probably find the mere notion of demanding prosecution for every felony utterly risible.  Not to mention impossible, since the courts have been calibrated (read: defunded, or starved) to have resources only to respond to a fraction of the crimes that are committed.  

But why, precisely, should it be this way?  Why, philosophically, shouldn’t non-criminals — law abiding citizens — have the same rights and access to equal protection as people who commit crimes?  Why shouldn’t your burglary count in the same way as your neighbor’s burglary?  

The short answer, cavalierly thrown out by pro-criminal advocates, is that the justice system would “grind to a halt” if all felonies were prosecuted.  Note that these are the same people who simultaneously say that our justice system is “far to harsh on defendants,” and that “it is a great injustice that America has so many people behind bars,” as if this is just something that happens spontaneously, with no relation to the fact that America has so many people who commit serious crimes.

Appeals courts are clogged with complaints by convicts that they have been treated unfairly, compared to other convicts.  And every single one of those cases, however frivolous, must be addressed, a process that costs taxpayers vast amounts of money.   Imagine if non-convicts had the right to do the same.  

Perhaps somebody in the Georgia General Assembly should look into emulating the Tennessee Public Safety Commission’s proposed recidivism legislation.  If it had been on the books in Georgia (and properly enforced), it would have saved lives.

The Pew Center Study, Repeat Offenders, and the Real Price of Crime

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From The Tennessean

Cons commit crimes after early release

Sentencing guidelines enable repeat offenders

A college student is kidnapped, brutalized and murdered. A mother looks up from changing her baby’s diaper to find a gun pointing in her face. A 62-year-old man is bludgeoned with a baseball bat in a mall parking lot.

The crimes share one trait, aside from their brutality. In each case, the person charged with the offense was an ex-convict, out on probation or parole — a situation Tennessee prosecutors and law enforcement leaders say is all too common because of how the state sentences its convicted criminals. . . .

Amanda Sue Kelley, 19, was arrested seven times last year on charges that ranged from drug possession to domestic assault and theft. In January, police say, she wrenched open the door of a parked car, pointed a gun at a woman changing her 13-month-old daughter’s diaper in the back seat, and demanded cash. . . .

It costs about $63.90 a day to keep someone behind bars in Tennessee. A day monitoring someone’s probation or parole costs $2.95.

“We really need to do a better job of sorting our offenders by risk,” said Adam Gelb, director of the Pew Center on the States’ Public Safety Performance Project. “This is less and less an issue of being tough on crime or soft on crime and more an issue of giving the taxpayers a better return on their dollars.” 

The Pew Center study, “One in One Hundred,” has attracted a lot of attention — but less obvious is the Center’s ideological anti-incarceration bias.  The Center did not include what is known as the “Aggregate Burden of Crime” in its analysis of the price of incarceration versus the price of community sentencing.  The aggregate burden of crime, which measures the total economic effect of crime on victims, communities and the offender, offers a picture of the real cost of incarcerating convicts versus letting them go free — not a one-line argument comparing the day-to-day cost of probation to the day-to-day cost of incarceration.

There is no excuse for excluding the other costs that inevitably arise when people who should be in prison commit additional crimes — unless the study is simply designed to sway public opinion towards letting convicts back on the streets.  

In 1996, the Department of Justice issued a far more comprehensive, less ideological study called “Victim Costs and Consequences: A New Look”  which placed the cost of crime for victims at $450 billion dollars per year.  And in 1999, Professor David A. Anderson published another study, titled “The Aggregate Burden of Crime,” which placed the annual cost of crime at 1.7 trillion dollars a year.  Here is a description of his study:

Anderson takes into account all costs which would not exist in an ideal society totally free of crime. That includes the cost of private preventative measures such as locks, safety lighting, alarm systems, fencing and private security guards. In addition it calculates the cost of crime-related injuries and deaths, including medical care, lost workdays, pain, and fear, and the opportunity costs of time spent preventing, carrying out and serving prison terms for criminal activity. Finally, it mentions a $28 billion decrease in property values of real estate and buildings that are cheaper than similar facilities because they are located in high-crime areas. The costs associated with living in the suburbs to avoid crime in the city center are also discussed, since there are significant costs for activities such as commuting and parking. 

If the Pew Center had really intended to quantify the difference in cost between incarcerating offenders and releasing them to the community, they would have had to first figure out the number of crimes committed each year by offenders who could have been sentenced to prison, or kept there without parole, but who were instead released to commit more crime.  Then they would have had to plug in the price of this additional victimization.  Absent that, they are operating on the assumption that no parolees or probationers ever commit crimes.  

Victim and community expenses appear nowhere in the Pew Center report.  When you focus narrowly on the price differential between daily incarceration expenses and parole/community control expenses, you are intentionally excluding the bulk of expenses born by innocent people — victims, bystanders, and neighborhoods — who have been impacted by illegal activities.  That’s not just bad public policy: it’s dishonest public policy.