It’s all well and good to talk abstractly about morality and justice, but at some point you have to sit down and figure out what to do about people who break the rules. In our modern legal system, mostly that involves incarceration, especially for so-called “street crimes.” Here in the US, we’ve taken that strategy to extremes, leading the world in the number of incarcerated people per capita. How do we decide who goes to prison, and how should we decide? I talk with criminologist Charis Kubrin on how the justice system distinguishes guilt from innocence. We discuss one interesting issue at length: the use of rap lyrics written by defendants as evidence of guilt. What role should artistic creations play in deciding someone’s culpability of a crime?
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Charis Kubrin received her Ph.D. from the University of Washington. She is currently a professor of Criminology and Law and Society at the University of California, Irvine. She is co-author of the textbook Introduction to Criminal Justice: a Sociological Perspective. Among her awards are the Ruth Shonie Cavan Award and the Coramae Richey Mann Award from the American Society of Criminology, and the W.E.B. DuBois Award and the Paul Tappan Award from the Western Society of Criminology.
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0:00:01.0 Sean Carroll: Hello, everyone, welcome to The Mindscape Podcast. I’m your host, Sean Carroll. On the podcast, we’ve occasionally talked about moral philosophy, what is right, what is wrong, how do we decide these things. In fact, I’m kind of more interested and knowledgeable about meta-ethics than I am about ethics, so meta-ethics being how do we decide what is right and wrong versus ethics, which is what is right and what is wrong. But no matter what your choices are, about how to decide what is right and what is wrong, as a society, there will be people who don’t listen to you, who violate the rules, who break the laws, who act in ways that you decided were wrong. What do you do about those people? And generally speaking, whether it’s a dictatorship or a democracy or whatever, generally speaking, the end result is we throw them in jail, sometimes there’s a death penalty or financial things, but throwing people in either jail or prison, incarcerating them, in other words, is the most common way to punish people for serious crimes in the modern world.
0:01:00.8 SC: So that raises questions, who should be incarcerated? What should be the process by which we decide who is incarcerated? And it’s very interesting that here in the United States, where I live, we are completely an outlier worldwide. The United States has the largest prison population in the world and the highest per capita incarceration rate. In some sense, this is a recent phenomenon. We’ve increased the number of people who are incarcerated by four times since 1980, so something has happened, we’re putting a lot more people in prison.
0:01:34.4 SC: Why is that and is it the right thing to do? So today, I’m talking to Charis Kubrin, who is a criminologist, who studies this whole phenomenon of incarceration, both who gets incarcerated and should they get incarcerated. One specific thing we talk about, not just the general theory of incarceration, though there is that. But one of her expertises is… Let’s put it this way, would you be happy if you were on trial and the prosecutor brought up your youthful poetry as evidence that you were in a bad state of mind. Maybe you had written some poetry that was violent or misogynistic or something like that, okay. Well, how about if instead of poetry, it was rap lyrics? Turns out that if you’re a young person and you’ve written violent rap lyrics, those lyrics that you wrote as a youth are more likely to be held against you in a criminal trial than other things that maybe would be more relevant.
0:02:29.4 SC: So Charis has actually done a lot of work, both academically and also in briefs before appellate courts and so forth on why that is not a good idea, you should not take people’s rap lyrics as confessions to crimes, it’s an art form, it’s poetry. There could be people who are very violent offenders and also rap artists, but that’s not a necessary relationship. I don’t know. Is this true? Is this is a good idea? So that’s what we’re going to talk about. We’re going to talk about this whole set of ideas involving who should be put into prison and in jail and how we actually do it, and why the United States is so different than other places, whether it even works, right? Is it true that throwing people in jail or in prison decreases crime? It’s not obvious, but social science, very, very complicated. Wherever people are involved, the questions become much harder, so let’s go.
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0:03:37.5 SC: Charis Kubrin, Welcome to The Mindscape Podcast.
0:03:39.5 Charis Kubrin: Thank you.
0:03:40.7 SC: So you’re dealing with one of these topics I occasionally have on the podcast, where many people who are listening, including, well, myself, who am talking, will not be an expert in the area and yet have strong opinions when we’re talking about incarceration, crime, race, things like that. So why don’t we just start with some background knowledge, because people do have these opinions, but you’re data-based, you actually have the numbers and you can help us get straight. I mean, is the general feeling that here in the United States, we have an international audience, but we here in the United States have a feeling amongst ourselves that we incarcerate a lot of people. How accurate is that feeling?
0:04:19.5 CK: Yeah, it’s accurate. It was particularly accurate in the early 2000s up to about 2011, and this is when our field of criminology saw the introduction of new terms, this is how you know something is a big deal when new terms like mass incarceration come onto the scene. And so the United States is definitely the place where we incarcerate at the highest rate compared to anywhere. Students are still surprised to hear that. We got better around 2011 with rates going down a little bit, but we still far outstrip pretty much anywhere else in the world in terms of our incarceration rates, unfortunately.
0:05:00.5 SC: So not only do we outstrip France and Canada and Japan, but some of the biggest repressive dictatorships in the world, we’re much better at putting people in jail.
0:05:06.0 CK: Absolutely. Yes. Places we don’t typically compare ourselves to. Yes.
0:05:12.1 SC: And again, just to set the landscape, so we know what’s going on, is that mostly a federal issue? Is it a state issue? Why is it that we’re so good at putting people in prison?
0:05:22.7 CK: It’s mostly a state issue, so we still have an issue at the federal level, but the bulk of people incarcerated in the United States are in state level institutions. I could give a whole lecture on the build-up of mass incarceration, its disproportionate effect on certain populations… And I could go on and on, but in short term, we’ve just punished too many people for far too long. And so we’ve grown pretty severe in what we choose to punish in terms of casting the net out quite widely, and then we’ve enacted policies like mandatory sentencing, truth in sentencing, that really punish individuals for quite a long time relative to the crimes that they’ve committed.
0:06:10.0 SC: Right, so that makes perfect sense, both of those factors make perfect sense. Let me just dig in a little bit more to both of them. When you say that we incarcerate a lot of people, is that the kinds of crimes or just even very minor crimes we throw people in prison for?
0:06:25.1 CK: Yeah, I think it’s a little bit of both. So I think we’ve identified crimes for which in other places, perhaps the result is not to incarcerate an individual, rehabilitation or other form of supervision. I’ll take California, my state, for example. We just started criminalizing very low-level drug offenses in particular that helped build up the population in our prisons, and in the last several years have had to enact several reforms which have moved many of these crimes to lower offenses for which prison was not now, not the outcome, if you will.
0:07:04.4 SC: And I guess, one could still make the argument, maybe people do, that we’re doing it right and everyone else is doing it wrong. Is there a feeling out there in the community about that?
0:07:14.1 CK: No.
0:07:15.2 SC: That is not the feeling?
0:07:16.1 CK: Yeah, I mean, I’ve been on radio shows and others where I’ve been arguing opposite of someone else who thinks the system is working great, we’re doing a great job. And I guess I would say it’s good to be number one in a lot of things in the United States, but having the most individuals incarcerated per capita is not something to be proud of. To me, it suggests a system that is over-incarcerating, and I think there’s finally realization of that on both the left and the right, and this is why we’ve had reforms all over the United States, in particular, California, my state, has really done a lot to turn the ship around. And that was prompted in 2011 by the Supreme Court stepping in and saying, the conditions in California state prisons are so horrible, the overcrowding is so problematic that you need to find a way to very quickly reduce your prison population.
0:08:13.4 SC: And this is not a notoriously left-leaning Supreme Court saying this.
0:08:16.0 CK: Yeah, exactly. I mean, it’s bad, it’s bad enough to begin with, it’s really bad when the Supreme Court steps in and says, Let… This has to be fixed, and California did.
0:08:26.9 SC: Well, you mentioned drug offenses in particular, and I think that’s the thing that you hear more often than anywhere else, that the United States is just crazy about throwing people in jail or in prison for drug offenses, including relatively minor ones. Is that a big cause of our leading the world?
0:08:43.2 CK: It’s part of it. But there’s so many other, I mean, just low level kinds of crimes, thefts and other things, numbers of priors being a major determinant of incarcerating people for long periods of time, excessive sentences once individuals are convicted. We have problems with basically probation and parole, well, parole in particular, when an individual is incarcerated and then let out early on parole, and then does something that constitutes a violation of that parole, they go right back to prison in California, at least they did prior to these reforms. And so we kept filling the prisons back up with people that were violating parole on their very first time, for example. So not a lot of chances given, harsh penalties for relatively minor crimes. So this, at the end of the day, creates the build-up.
0:09:41.9 SC: We just had… As we’re recording this, didn’t we just have like a week or two ago a Supreme Court decision saying it was okay to throw juvenile offenders in prison without possibility of parole forever?
0:09:54.3 CK: I’m not… I’ve been really slammed last week…
0:09:57.2 SC: Okay.
0:10:00.0 CK: Yeah, they’re probably… I haven’t been keeping up with that. So I’m not… What happened?
0:10:05.6 SC: Yeah, there was, I remember Sonia Sotomayor, I think, wrote a blistering dissent, as one does, but there was a 6-3 decision, and I’m not going to get the details right, but basically it made it much easier to throw juveniles in for life without any possibility of parole, which a lot of people were saying, how do you ever judge, especially when certain members of the Supreme Court are known for their own youthful indiscretions.
0:10:29.6 CK: Well, absolutely, that’s why we have an entire juvenile justice system, ’cause we recognize that youth are quite different in their development than adults, and so they shouldn’t be held accountable in the same ways as adults, there should be more rehabilitation.
0:10:43.5 SC: And is there… This is probably going to take us afield, we’ll get back to focus a little bit, but I can see whereas in the United States, if you’re a politician campaigning, you want to get elected, then saying, let’s let more people out of prison is not the winning campaign slogan, but that sounds very simplistic. And why is that not the case in other countries? What is it about us that makes us so different?
0:11:09.3 CK: Oh, I mean, there’s just so much. Our history, the role of politics in our criminal justice system has become, in my opinion, out of control. You’re absolutely right, the left and the right can never say we need to rethink our policies and practices, it’s always about getting tough on crime. Why we’re different is a really difficult question that I’m not quite sure I have the answer to, or I know enough about what’s happening in other countries to make those comparisons, but I do think at least for 40, 50, 60, decades, crime and getting tough on crime, the politicization of crime has been very salient in our country. And I remember in 1994 when the Crime Bill was passed, I remember when Bill Clinton was running, it was like a race between the left and the right as to who was going to be tougher on crime. And so yeah, you’re not going to get elected, you don’t get votes, that’s pretty much the norm, from local politics to all the way up to the president.
0:12:22.4 SC: Well, and another way that the United States stands out, of course, is in its gun laws and its gun ownership patterns.
0:12:28.0 CK: Absolutely.
0:12:29.0 SC: Is that a close tie into the sentencing and the criminal population or is it just two things that are going in parallel?
0:12:36.8 CK: Yeah, I think that helps explain the United States’ rates of violence relative to other countries, so, yes, absolutely, guns, gun ownership is a huge part of that story. In terms of, in terms of the… How it played into the question that you asked prior, I’m not exactly sure, but certainly when criminologists talk about, why is violence so high, why are homicide rates so high in the US, guns are a key part of that conversation. 100%.
0:13:06.1 SC: Okay, so we have a lot of violent crime here in the United States, but it’s not nearly enough to account for all the incarceration, right. So much of it is non-violent crime, so we’re just incarcerating people right and left, we like throwing people in prison.
0:13:18.5 CK: Yeah, we tend to assume that the link between crime and incarceration is perfect, that it’s correlated, and there is obviously some correlation, but it’s not nearly a perfect correlation as one might think. There are so many other factors that go into the incarceration rates. And some of that I talked about before, but crime is only one part of it, and you know, the other assumption that happens is we assume that incarcerating people at a high rate will reduce crime on the other end, sort of reverse causality, and that’s also been shown not to necessarily be the case to the extent that we would think it would be.
0:13:55.0 CK: There’s some debate, but economists say maybe 20% of the crime decline, for example, we had… So crime really rose in the ’80s, leveled off in sort of the early ’90s and started going down, and this has been the great American crime decline, the crime drop till about the mid-2000s, and criminologists have rushed to figure out what it is that caused crime to go down. And those that support this harsh punishment will argue, well, we’ve just incarcerated more people and that’s brought the crime down, but only about 20% of that decline has been attributed to punishment, basically.
0:14:37.3 SC: Yeah, there’s certainly a lot to talk about in terms of why people are committing crimes, how much they’re committing. The last question I have on sort of the background incarceration question is, what about the role of private prisons versus state-run ones? This is something I know nothing about, but it’s definitely one of the phrases I hear being bandied about.
0:14:56.1 CK: This is the most under-discussed topic that is on the horizon, that is a huge obstacle for this country. When Obama was President, he was beginning to phase out private prisons. In fact at the federal level, he was closing them all down. Trump came in, and I don’t know if you noticed, but when Trump was elected President, stocks in private prisons skyrocketed and…
0:15:22.0 SC: Did not notice.
0:15:23.0 CK: Yeah, and what’s interesting is there’s no appetite for private prisons with respect to our general prison population because of interest to minimize mass incarceration, so it’s shifting and it’s shifting to immigrant populations. So for example, what we’re seeing with Trump’s immigration policies was a build-up of privatization around immigrant detention, right, if you’re going to identify, round up and deport large swaths of people, as President Trump wanted to do, you need places to hold individuals, these sorts of things. So a lot of immigration detention is privatized. So that’s been resurrected, unfortunately, I have huge… You would… It’d be rare to find a criminologist that thinks this is a good move, and I could spend days talking about the problems associated with private prisons. At its fundamental core, having institutions profit off of having… It’s a business, and that’s a fundamental concern among many critics of private prisons.
0:16:35.7 SC: Well, it’s very analogous, I guess, to the healthcare situation, where having lots of money you can make by not giving people healthcare is a problematic incentive structure, even if you believe in capitalism.
0:16:48.1 CK: Exactly, exactly. So yeah, this is growing, in all my courses, I have a segment on private prisons, and when I show the growth of private prisons and the number of companies involved, and employees, it’s a whole… It’s a whole beast.
0:17:03.6 SC: So how big is it? Like what… If I get arrested at the state level for selling drugs, what is the chances I’m going to end up in a private prison?
0:17:11.9 CK: Depends on the state, depends on who they’re contracting with, depends on how full their beds are. There are many states that because they’ve incarcerated so many folks in their public institutions now, have had to reach out to private institutions and are paying to house individuals in their facilities.
0:17:32.1 SC: Is it more costly to the state to hire a private prison or…
0:17:37.8 CK: This is so… This is really… These questions are good. They’re very difficult to answer because each state is quite different…
0:17:42.8 SC: Right, okay.
0:17:43.5 CK: So just to give you a concrete example, it’s about $65,000 a year per individual to house in a public facility in California.
0:17:52.6 SC: Okay, that’s a number that more politicians should be mentioning when they’re talking about how many people should be in prison.
0:18:00.2 CK: Especially when you look at budgets around education in California versus… And I mean, one of the big stories of California is how many prisons were built in the last several decades relative to new campuses, say, for example, in the UC system, how much money is funneled to prison development versus education, and then even with that, they’re still using private facilities in California. Now, that’s come down a bit over the years, but that was a very scary trajectory that was happening and from our immigrant detention, privatization is still the primary way that that happens.
0:18:39.0 SC: You did put the finger on the Trump administration for the immigrant issue in particular, but it’s important to emphasize that otherwise, it’s been a bipartisan push, right?
0:18:48.1 CK: 100%. Yeah, one of the things that we taught when President Obama was… When he was President, they were referring to him as the deporter-in-chief. It was a detention nation. There’s a lot that both sides have done to kind of create restrictive, harsh exclusionary policy aimed at immigrants.
0:19:16.7 SC: Right. And I did want to… You wrote another couple of papers that I thought were just worth getting on the table here, even though they’re not in the direct line of what we’re talking about, but you mentioned the drug offenses and how that’s a lot of the prison population. And then we can discuss, well, what should people be thrown in prison for. And so you did some studies on the relationship between legalizing marijuana and suicide, and so letting pot be legal decreases the suicide rate in some sense. Is that right?
0:19:46.8 CK: Yeah. I mean, we used a really fancy methodological approach to determine sort of what would have happened to suicide in California had… Basically had things continued as such. Did legalizing marijuana have an impact? And yeah, basically what we found was that it lowered suicide rates. And the main question is why? What are the mechanisms behind that? What accounts for that? And that is unexplored using the methodology that we did, but we raised a series of possibilities looking at whether people are substituting marijuana instead of alcohol. Alcohol causing a lot of mental health and other kinds of problems. So yeah, generally, I like to look at the impacts of various policies on a number of outcomes. I keep my personal opinions about the policies out…
0:20:43.8 SC: Sure.
0:20:44.3 CK: In terms of legalization or these reforms, but just there’s so many claims around the impacts of these policies and the harms that they’re going to cause and create, yet very little research done on their impact. So my focus has always been, well, what is the impact of legalization on such and such outcome.
0:21:02.4 SC: And what I really liked about this study is actually there’s an interesting philosophy question here, because it’s easy to sort of just track the number of suicides or number of incarcerations or whatever, and draw a line at where something is legalized, but you went beyond that. You constructed an alternative world in which it had not been legalized, right? Like you tried to model what it would have been like, ’cause there’s other things going on in the world, so there’s some counterfactual exploration here, which is actually philosophically very interesting.
0:21:31.6 CK: Yeah, my number one pet peeve with the news reporting on these sorts of policies is what they will typically do is a policy gets enacted, whatever that policy is, people will follow what goes on with crime, it’ll go up, it’ll go down, [chuckle] it’ll stay the same, and then they immediately attribute any change in crime to the policy, forgetting that crime or any outcome, suicide, for that matter, is affected by so many different factors. If you take crime, for example, we can look at the role of guns, drugs, gangs, economic conditions, joblessness, poverty, demographic shifts in the population, other policies, policing. So crime is going to do what it’s going to do because of a myriad of factors. If you want to isolate out the impact of one particular policy, you have to do something a little more sophisticated than look at what crime trends do following that policy. And that’s why we do the synthetic control design method.
0:22:33.0 SC: Do you, since I don’t know how different fields tie together, there’s been a burgeoning discourse in the idea of causality in the social sciences, Judea Pearl and things like that. Does that stuff impact what you do?
0:22:46.0 CK: Yes, love it. And my former grad student, who’s now a professor at the University of Arizona, Brad Bartos, he did his entire dissertation on causality and looking at way in which this approach, the synthetic control design method, addresses some of the biggest challenges to determining causality when you have a situation where you can’t conduct a pure experiment. My field is very difficult, I’d love to experimentally assign a policy to some states and not others, that’s never going to happen, and so we do these quasi experiments, sort of the next best thing, which has all the benefits of an experimental approach, minus the random assignment, if you will, to treatment or control. Yeah, so that is front and center. There’s philosophical components of it that I love and get into, and then there’s also just like, this makes for a good way to test policy.
0:23:43.6 SC: Right. Alright, well, thank you for indulging my philosophical question there.
0:23:47.4 CK: I could talk about that all day.
0:23:50.1 SC: But there’s another philosophical question I have actually, so moving into the more nitty-gritty of how people get incarcerated, convicted, etcetera, but let me still lay some groundwork here. This is too much to ask, but do you have a feeling for what the right answer is or should be to the question of why should you incarcerate people at all, right. There’s punishment, deterrence, rehabilitation, there’s all the different motivations and we’re not very clear necessarily about why we do it.
0:24:19.6 CK: What is the right answer, I do not know, and I don’t think it’s one answer, I think it’s historically contingent, it’s contextualized. There’s a lot of variation, whether we’re talking at the local level, the state, federal, it’s complex, and we’re really good, criminologists are really good at telling you, telling everyone what they’re doing wrong. It’s a lot more difficult to come up with solutions to those problems. I can tell you right now, we’re still incarcerating too many people, and I can identify places where we’re too harsh or the policies are not working. So I fully supported all of the reforms that California has enacted and the research shows they’re not causing crime to go up.
0:25:03.3 CK: We need to start… Look, that was some of the lower hanging fruit, it’s easy for me to say, well, petty theft, you should not go to state prison at the cost of $65,000 a year and serve out a long sentence for petty theft, there are other ways to address that. The question really comes, well, what about violent individuals who have engaged in violent crime, and I’m very sympathetic to victims and others. I myself have been a victim of various crimes, including violent crime, and so I’m not one to just say abolish the prisons, that we don’t need, we don’t need to incarcerate anybody, because I do think there are individuals out there that are dangerous and that need to be behind bars because they’re producing lots of harm to society.
0:25:48.4 CK: So I’m not that extreme on that end. I certainly think there’s still room for reform. So that’s kind of where I situate myself, identifying very carefully where it is that we can make changes, recognizing that there’s still room for improvement, but also not ready to kind of throw the system out.
0:26:08.2 SC: Yeah, no, that’s very good, and I love the fact that you’re willing to say when you don’t know what the answer is to a question, so not all podcast guests are quite so honest with themselves, so thank you for that. So I guess one of the answers is that different people involved in the criminal justice system might have different individual feelings, philosophies about why we’re doing this, but often they line up and at least we would like to prevent crime, and so we can say, well, if a certain incarceration policy doesn’t prevent crimes, then why are we doing it.
0:26:39.5 CK: That’s part of it, for sure. Its impact on crime is key, but there’s other considerations, like maintaining the values that underlie our system of democracy. A just system, a fair system, that even if a policy might lower crime, if it’s not fair or just, we can question whether that’s a useful policy. Questions around retribution or rehabilitation, what are the values that underlie our system, and I think they’re so varied, and if a policy doesn’t limit crime, but doesn’t increase it either and is more humane, what do we feel about that policy?
0:27:25.5 SC: Sure.
0:27:26.9 CK: Yeah. It’s a heavy topic.
0:27:30.8 SC: Yeah, it is, but you’re in it, you’re the one who has to think about it. I don’t, I think about the universe, it’s very non-valued, it’s just the laws of physics. But you know, I did… When I was in high school, I was on the debate team and we had… The debate topic that year was a criminal justice topic, so that was my last exposure, I won’t say how many years ago, but I remember…
0:27:53.1 CK: What was the topic?
0:27:54.6 SC: It was about the exclusionary rule in the Fourth Amendment, right? No, actually, sorry, it wasn’t. Our case was about the exclusionary rule in the Fourth Amendment, the topic was just about criminal justice reform more broadly, and I forget… It was like the United States should enact large-scale criminal justice reform. But I remember the motto that it would be better that a thousand guilty people go free than that one innocent person be convicted. We are clearly nowhere near that, right, just in capital cases, once DNA came in, we realized, holy crap, we’ve been finding a lot of people guilty who were not. What is your feeling about the reliability of the criminal justice system in actually incarcerating people who were guilty at least nominally of the crime they’re being accused of?
0:28:41.6 CK: Right, this is the tension in our system, and it goes back, I mean, criminologists and theorists have been writing about this for decades. On the one hand, we can value crime control and the processing of cases through the system as quickly and expediently as possible. Dealing with the large case loads that we have, I mean, this is part of our problem is that the vast majority of people never go to trial, they plead guilty. Why? Because our system is overloaded, so they’re not even exercising those rights that we fundamentally hold and value.
0:29:15.2 CK: On the other end, if you think of that as one model, efficiency, crime control, handling the large case load; on the other end is sort of the due process model, which says… And the first one I liken more like an assembly line. It’s assembly line justice, we’re getting most people through; on the other hand, errors are happening, but we’re willing to tolerate those errors in the larger goal of processing and efficiency. And there’s the other end, the due process end, which I liken more to an obstacle course. The goal really is to root out people of the system early on so that we’re not producing error.
0:30:00.5 CK: The problem is, is that in that ideal role, everyone’s going to trial, every stage of the system is slowing down to make sure errors are not happening, it’s not functional in our society.
0:30:11.2 SC: There’s a resource limitation, right?
0:30:13.7 CK: Exactly. And so those are the ideals in some way, the theoretical ideals, and our system is somewhere in the middle, and we can debate all of that, so how many errors are we willing to withstand to make sure, for example, that people are processed through the system and justice is done. If you’re a victim and the individual, the offender that victimized you, their case is thrown out because they weren’t arrested or they weren’t charged within 48 hours of being arrested, which is the rule, and that case is thrown out, is justice being done. So there has to be some processing that happens. The question is, how much error are we tolerating?
0:30:56.2 CK: Now, when it comes to the death penalty, the answer should be zero. And this is the big… This debate we’ve seen the most play out with respect to the death penalty because of errors and the consequences of those errors.
0:31:10.4 SC: It’s interesting because it actually reminds me of Richard Feynman being on the Challenger disaster committee. He went and interviewed a bunch of engineers at NASA and higher-ups at NASA, and when he talked to the higher-ups at NASA, he said, what in your mind was the acceptable failure rate for the launches of the space shuttle? And they said 0%. And he said, but that is literally physically impossible, you could never have zero. They were clearly just saying that because they couldn’t possibly quote a number politically.
0:31:42.4 CK: Exactly.
0:31:43.4 SC: And presumably the same thing is true in criminal justice. The only way to get 0% failure rate even in capital cases is to just not have the death penalty, right?
0:31:54.0 CK: Right, absolutely. Yeah, and these are… It’s funny, because when you ask the question, what is that percentage, nobody’s going to say a percentage like that, and that’s why these are nice theoretical models that we can debate about, but at the end of the day, yeah, these numbers are not something that anyone has an appetite to discuss.
0:32:17.5 SC: Yeah, so no one is going to say, we’ll accept 0.1% of our verdicts being false, but what they will say is, we can’t afford to spend all this money doing every trial in all of its glory, right?
0:32:31.1 CK: Yeah.
0:32:32.4 SC: And so we have a problem then with things like… Again, I’m not an expert here, help me with things like the public defender system, a lot of these… I want to say clients, suspects… What are they called? Accused?
0:32:46.6 CK: Clients is actually the right term.
0:32:48.5 SC: Yeah, okay. They are given a public defender, who’s overworked, makes a lot of mistakes. How much is that one of the problems in getting that failure rate down as low as we can?
0:33:00.7 CK: I think, yeah, it’s hard to pinpoint what accounts for these errors, ’cause there’s so many different factors involved, but certainly an overburdened system, and that is part of the overburdened system. Now, I mean, the thing about public defenders is even though they have large case loads, they also have very good working relationships with other members of the court, including the judge and the prosecutor, so they’re often able to make very good plea deals, and they’re part of the courtroom work group, so there’s advantages and disadvantages. But certainly one of the other old sayings is if you look to see who’s on death row, you’re never going to find someone with a lot of money on death row, right, so having money, being able to afford a whole pile of attorneys that are going to push to advocate on your behalf is a huge, huge plus.
0:33:55.8 CK: And there’s other ways, like with respect to bail, right now there’s a lot of debate about whether cash bail should be part of the system or not. It disadvantages those that don’t have access to cash, and we know that there’s a large correlation between being put behind bars, pre-trial detention and your outcome. So money and resources are definitely a key part of this.
0:34:23.4 SC: Is there a simple explanation beyond just, well, good lawyers are good as to why, we have this impression that you can, if you’re sufficiently wealthy, buy your way out of almost any conviction.
0:34:36.0 CK: Oh, it goes to so many different things. So you can do studies early on to identify who the ideal juror is for a case. So if you have resources, you can do interviews, focus groups, the attorneys can identify who ideal jurors are, they are able to… At every stage of the way, they’re able to use those resources to help the client in their case, get certain kinds of experts present in the courtroom, high cost expert witnesses that will come in and help the case, just at different stages like that.
0:35:13.9 SC: But it’s interesting. So it’s not just straight out corruption, it’s just that there’s so many moving parts that if you have enormous resources, you can game all of them to maximize your chances of getting…
0:35:22.3 CK: Exactly.
0:35:24.6 SC: Okay, and on the other side of things, I can’t let us go by without talking about people who probably do not have a lot of high-powered lawyers, which are rappers…
0:35:36.8 CK: Aspiring… Put the word in there, aspiring rappers.
0:35:38.6 SC: Aspiring rappers, that’s true. The ones who’ve made it already, they can probably afford the best lawyers.
0:35:42.5 CK: Snoop and others might disagree with that.
0:35:45.5 SC: Right, Jay-Z can afford whatever lawyers he needs, but… So you’ve done this fascinating work where prosecutors would, on whatever evidence they might have, bring up to trial a defendant who they find has written their own rap lyrics. So we’re not talking about rap lyrics that are sort of in the air and on the radio, but these are lyrics written by the defendant, and, well, you tell us, what happens here?
0:36:11.5 CK: Yeah, basically rappers, aspiring rappers, are having their lyrics used against them in criminal cases, and prosecutors are making the claim either that the lyrics are so threatening that the individual is communicating a terrorist threat, so the lyrics themselves are the crime, or they’re arguing that the lyrics represent identity or motive with respect to some other alleged crime, because the assumption is that rap music is nothing more than autobiographical Confessions, it’s not art, it’s rappers confessing to crimes in the rhymes.
0:36:46.8 SC: Bragging.
0:36:49.7 CK: Bragging, exactly.
0:36:50.1 SC: And so they will… How do they actually bring that in to the court?
0:36:54.4 CK: So they basically, along in their case, they will treat that as evidence, and often it’s the only evidence they have about the individual that’s being charged with X, Y, Z crime, and so the lyrics come in, the videos come in as evidence, the judge allows that evidence in, and the next thing you know, this extremely stereotypical biased evidence, for reasons I can get into, is part of a trial where the jurors are told that these are confessions to crimes.
0:37:27.0 SC: Right. So why is it biased? Go into that.
0:37:30.0 CK: Well, so… Just to back up and give some context to this, when I was a brand-new assistant professor, I’ve always listened to hip-hop, I had this idea of treating rap lyrics as data, sort of thinking about different ways that we could… Well, yeah, basically thinking outside of the box in terms of data, and I thought, well, rappers have a lot to say, and they have a lot to say of interest around crime and violence and problematic policing and all sorts of things. And I did content analyses of rap music lyrics in various systematic ways, which I’m happy to talk about, analyzing over 400 songs in a 10-year period, and published a series of papers where I use the rap lyrics as data, exploring a variety of themes around violence and crime and so on and so forth.
0:38:23.6 CK: Then in 2011, got contacted by an attorney who came across these content analysis papers of mine, because he had a client, an aspiring rapper, whose lyrics were being used against him, arguing that they were communicating a terrorist threat, and this attorney wanted me to do with content analysis of these lyrics to talk about whether these in fact were actual threats or just the stuff of rap. So I did, I testified in that case, fast forward several years, I’ve testified in many cases, I’ve consulted on dozens of cases. A conclusion from those experiences was, wow, these lyrics are literally… I could see it on the faces of the jurors.
0:39:12.1 CK: I liken it to, if you’ve never seen a horror movie, and then you get dragged to see Texas Chain Saw Massacre, and you’re just taken aback. So most of the jurors in these cases don’t know anything about rap music, they certainly don’t know much about gangster rap, which is the sub-genre here, there’s lots of violence, there’s lots of threatening language. Now as a listener of rap, this is pretty much par for the course. So I noticed immediately that the effect of these lyrics was sort of biasing. In other words, the jurors were unable to evaluate the content of the lyrics, apart from stereotypes and assumptions that they had about not only the lyrics themselves, but rappers who make them.
0:39:57.3 CK: So I conducted a… Sorry, I know this is long, but I conducted a series of experiments to try and determine if this… My hunch was, in fact, the case. And the experiments that I ran, and these were true experiments where we were able to randomly assign people to conditions of being exposed to rap lyrics versus violent lyrics that were other music genres, if that impacted people’s evaluation, and we found out that it did.
0:40:25.5 SC: Interesting, and just to be super duper clear, what we’re saying here is that someone can get arrested, a crime has been committed, more or less all we know about this person is maybe they owned a gun or maybe they had the opportunity, and they wrote these lyrics and no other evidence, and they get convicted on the basis of that.
0:40:44.1 CK: Right. And so my attitude is, I don’t know whether the person is guilty or not. I have no idea, but using rap lyrics as a shortcut to bypass a proper trial, if you will, is problematic. If there is physical evidence, the gun, if there’s eyewitness testimony, if there’s other kinds of evidence, that should be the evidence that leads to the conviction, not someone’s lyrics that they penned on a paper five years ago that maybe talk about killings and shootings, but have nothing to do with the case in hand. So often what you get are the facts of the case, and then the prosecutor trying to line up the lyrics with the facts of the case, the lyrics are quite generic, they’re very common, you can find them in most rap songs, they have no bearing on the actual fact of the case.
0:41:37.9 SC: And if I recall from what the papers you’ve written, it is something special about the fact that these are hip-hop lyrics rather than country music or heavy metal.
0:41:46.5 CK: That’s exactly the point. So what we did in our experiment was we found some violent lyrics, they’re actually lyrics from a folk song, Bad Man’s Blunder by Kingston Trio, and just a couple of stanzas from them, and what we did was we randomly assigned people to be told that these were rap lyrics or country music lyrics, or heavy metal lyrics in another set of experiments that we did. And then we asked people to read the lyrics, and we asked them to evaluate the lyrics on a number of dimensions, how threatening are they, how dangerous are they, should they be censored, not played on the radio, do you think the artist actually did what they’re saying in the lyrics. And depending on which set of lyrics you were assigned, the rap, heavy metal, the evaluations changed significantly.
0:42:38.2 CK: So those that were told they were rap lyrics evaluated them much, much more negatively and, most importantly, saw them as more literal and autobiographical compared to those respondents in our study who thought that they were heavy metal or country music lyrics.
0:42:54.6 SC: The Kingston Trio, those notorious gangster rappers.
0:42:58.5 CK: There you go.
0:43:01.0 SC: And if I remember correctly, it was actually not correlated with what the people being studied thought the race of the artist was, it was the music genre was more important than race.
0:43:12.8 CK: Yeah, and I don’t know. So the thing… So let me just back up and say, so once we did the study and we found that there was this impact, and by the way, we also found that it wasn’t just the lyrics that were negatively evaluated, it was the artist himself, so when we assigned artist status to each set of lyrics, this is a rapper, right, then we asked people to evaluate the character of the artist. Do you think this artist is smart, intelligent, a nice person, engaged in criminal activity, a gang member. Those who thought the lyrics were written by a rapper, much more negative character. Then we wanted to understand what’s going on here, is this rap, is this race, is it some combination of the two?
0:43:57.7 CK: And we tried to isolate out race by having conditions where the rapper was white versus the rapper was non-white, right, this sort of thing, black. And it turned out that it was a very muddy kind of set of findings. We didn’t find that you could isolate out race in a way that was significant per your comment; however, when we didn’t… This is very difficult to explain, but let me just put it this way, when we didn’t identify the race but asked the individual in the rap condition to suggest the race, they most frequently suggested that this person was a person of color, African-American, so we think race is definitely a part of this equation, it’s just very difficult to separate out all of these things.
0:44:43.7 SC: Yeah, no, I think that would be the lesson that I would draw, it’s not that there is no racism there or racism doesn’t matter, but that there’s a whole bunch of factors that are in a stew that are mixed up, and that’s why your job is much harder than mine as a physicist, that’s why I cannot imagine studying human beings.
0:45:01.2 CK: It’s the perfect definition of intersectionality, ’cause it’s not just that these folks are black, they are young men, mainly from inner city communities that are aspiring rappers, so it’s all of it together.
0:45:17.7 SC: So they’re practically guilty before they even step in.
0:45:21.1 CK: When you… Yeah.
0:45:22.8 SC: Tell us about the content analyses you mentioned.
0:45:28.8 CK: When I was a graduate student, we were reading works by famous sociologists, William Julius Wilson and others on the large scale macro changes happening in society and its impact on basically African-American communities in terms of crime and violence, and everything from deindustrialization to the war on crime, the war, all of it, war on drugs, and I was also listening to hip-hop at the time, this was in the ’90s, the mid-90s, and I remember thinking, wow, these rappers are rapping about exactly what I’m reading about in William Julius Wilson’s The Truly Disadvantaged.
0:46:05.6 CK: Of course, they’re not calling it deindustrialization, but they’re describing these changes, and that’s when I got this idea of using rappers’ lyrics as data to illuminate some of these theoretical concepts that I was seeing. My dissertation advisor told me, “Don’t do that, you’ll never get a job, that cannot be your dissertation, it’s too fringe, nobody knows about hip hop.” This was the mid-90s, and so I put it on the back burner. Well, when I got to be an assistant professor at George Washington University, I said, “Enough, I’m doing this.” And so I decided to do a content analysis, identifying the various themes in these key sociological works, but doing it in a much more systematic way than I thought had been happening in the field, there was a lot of sort of ideological work around hip-hop.
0:46:54.5 CK: So I basically got every single album, rap album, that went platinum over an eight-year period, all of the songs off of those albums, and then I got all of the lyrics from all of those songs, thousands of them, then I randomly selected a third of them, which was about 600 songs, and then I started content analyzing them one by one. Because they were randomly selected, I felt that I had the universe there, and after about song 430, I reached what is called saturation in terms of the themes, line by line by line, content analyzing, then I had an independent coder, a graduate student, code a subset of those, so we could check for inter-coder reliability on all these different themes, and then I started writing papers. This was like a five-year project that produced many, many papers, but it was very very long and arduous, but fun.
0:47:54.1 SC: And what are you looking for in the lyrics, is it a commentary on criminal justice or talking about doing crimes?
0:48:01.3 CK: Right, so I was looking at a variety of themes, and I started… I had both a deductive and inductive approach. The deductive approach took a couple of theoretical frameworks, like I mentioned in William Julius Wilson’s work, Elijah Anderson’s Code of the Streets and others, looking for themes around violence, misogyny, problematic policing, but however, as I was content analyzing the lyrics, themes kind of bubbled up that I hadn’t anticipated using these theoretical frameworks. And so I also incorporated those. And one, just to give you a concrete example, and I don’t know how familiar are you are with hip-hop of the ’90s, rap music in the 90s, but… A lot… I’m waiting for a reaction.
0:48:46.5 SC: A little bit, a little bit. I’m not going to claim… Like I’m older than that. I’m more Eric B. & Rakim kind of era.
0:48:55.1 CK: Yeah, yeah, yeah. My husb… Kev likes to think that he knows rap of the ’90s, but it’s quite limited, but… So I’m listening to these songs in my sample, I would… A song would come up in my random selection, I’d listen to it a bunch of times, get a feel for it, then I would listen to it with the lyrics on the screen, coding line by line, do that a couple of times to make sure. One thing I noticed was, wow, rappers in the ’90s obsessed about death and dying and the after-life.
0:49:27.0 SC: Interesting.
0:49:29.7 CK: Rappers like Snoop and DMX and Dre and all others, they were… Tupac, Biggie, they were all talking about, I might die, death is just… One of the papers that I wrote on nihilism is called I See Death Around The Corner, which is a Tupac title. They were just obsessed with death and dying, and I got interested in that, and that wasn’t really a part of any of the paradigms that I… The theoretical works I was dealing with. And so I kind of, that bubbled up from the data and I ended up coding around that and wrote an entire paper on nihilism in rap music.
0:50:07.9 SC: And is the point that there was something that was being perceived by these artists that was not being perceived by the academics?
0:50:14.3 CK: Exactly, and one of it was a lot of people say, well, rappers and folks in these communities, they act irrationally, and how do we understand violence? What is the purpose? Why are you carrying around guns? Why is there so much violence? And a lot of what I was hearing from the rappers was this notion that like tomorrow is not promised, and death could be right around the corner, and at any moment, your life can be taken away from you, and that was the case for Tupac and Biggie, two of the people that spoke about it, they were right to have these fears.
0:50:51.7 CK: And the source of those fears goes from everything from their histories to the conditions in their neighborhood, to the role of guns in the community, to these macro structural changes, to problematic policing. And in that context, acting crazy and not caring about the future, not planning for the future, kind of whiling out, made sense. So I talk of, it’s quite rational behavior. If tomorrow is a promise, it doesn’t make sense to buckle down and look to the future for your gratification, so it was like those kinds of themes that were fascinating to me.
0:51:31.8 SC: And it’s also… This is just a complete cliche, but worth getting on the table that hip-hop has always been criticized by older school popular musicians, by the fact that they’re not playing their instruments, there’s no melodies, things like that, but on the verbal side of things, it’s just so extremely more sophisticated and accomplished than any typical pop lyricism that we’ve had, ever, right?
0:51:58.4 CK: And that is exactly why I loved hip-hop and continue to love hip-hop, and that’s why it’s flourished and has been as successful as it has been. And this is my problem with what I call rap on trial, the phenomenon we were talking about before, which is that rap is denied the status of art, it’s denied the status of poetry, and it is relegated to basically autobiographical confessions, and that is extremely problematic to me. And racist, quite frankly.
0:52:29.1 SC: Pretty darn racist. I want to talk… I think that there’s very interesting things to be said about how art can be thought of as evidence in a criminal trial, so let me just ask the most procedural question, what are the evidentiary rules for a judge to just let someone’s high school poetry into a trial?
0:52:52.3 CK: Right, so obviously the evidence has to be proposed by the prosecutor. In these cases, defense attorneys are arguing vociferously to exclude it, but they need help in terms of making that case. Now, in theory, you are not allowed to use what is called character evidence in these cases, in other words, evidence that speaks to someone’s character, and that’s how prosecutors are attempting to use this. And so what happens is that prosecutors… What they want the jurors to hear is if someone could write these lyrics, they could do the crime, that’s what I think is they’re hoping is happening, that’s not allowed. So basically, but they’re finding ways around that by arguing that the lyrics speak to the motive, identity or intent of the individual with respect to the alleged crime.
0:53:48.0 SC: I see, so part of the maneuver is to deny that this could be art, to say that it must be a straightforward autobiographical confession, which if you sang it with country music behind it, you would not think.
0:54:00.7 CK: Well, and that’s exactly the point. Name me one other form of artistic expression where this is happening in the courts. You can’t. There is no other form of artistic expression, in other words, defendant-authored lyrics that are being introduced into the court, except when it comes to rap music. Now, heavy metal cases have been in the courts, that’s for a separate issue, the issue of incitement. But we’re talking about defendant-authored lyrics making an appearance in court, that is only for rap music.
0:54:29.9 SC: And you’ve said… I think you’ve already said this, but I just want to hear it again. It works, this bringing in these violent lyrics really does sway the juries.
0:54:38.3 CK: Absolutely. Convictions are happening. Now, some cases are getting overturned at the appellate level, but most are not, and I think the goal is to not get the lyrics in to begin with. And defense attorneys come to me all the time asking, “I’m filing a pretrial motion to exclude this evidence on these grounds. I know it’s biased and stereotypical, how do I show that?” And I’m like, “Well, here’s some experimental research I’ve done that actually documents that.” And I’m currently working with a law professor at UC Irvine, Jack Lerner and his students, at a clinic that he runs… We are producing a manual for defense attorneys that will help them navigate these cases, because many of them don’t know much about rap music to begin with.
0:55:26.1 CK: So they get the videos, they have some of the same stereotypes and assumptions even as they want to help their clients, and then, given my experience testifying in these cases, I’m able to provide some context and useful information about how these cases basically go down, if you will.
0:55:44.9 SC: What if we’re… I’m just trying my best here now to do the devil’s advocate thing, so if I’m on the jury for one of these trials, and maybe it’s specifically about rap or whatever, but my big picture question is, how much context should I let inform my priors about who this person is, who the defendant is, where they come from. In an ideal world, you want to say, well, there’s the evidence of this case, but as a good Bayesian, I want to take my prior and multiply it by the evidence, the likelihood of the evidence. So is there a theory of that or do the jurors get instructions about how to be good Bayesians?
0:56:25.0 CK: Right. So this is a really important part of these cases. So if the lyrics do get allowed in, the pre-trial motion fails, as it often does, okay. What is absolutely essential, given my research, I think, is that the jurors be educated on the broader context of hip-hop and rap. These are the genre conventions. If you’re an aspiring gangster rapper, these are the kinds of themes that are going to permeate your music. Why do these themes permeate the music? Because that’s what makes commercial success. That’s what gives you respect as a rapper. So having that context, having that background and understanding allows jurors to properly evaluate the evidence in the context of the other evidence in the trial.
0:57:12.1 CK: Not having that background information is extremely problematic in my case. And that’s where experts come in to provide that context. So…
0:57:20.0 SC: Right, that makes sense.
0:57:21.8 CK: Yeah, and to have an alternative explanation other than this is simply a confession.
0:57:26.3 SC: A violent person. They’re going to do it.
0:57:26.4 CK: Right.
0:57:30.0 SC: And since… I’m very much out of the loop on these things, how prevalent is gangster rap as a sub-genre of hip-hop now as compared to what it used to be? I had the feeling that in the early ’90s or whatever, it was very high up there, and maybe it’s less prevalent now.
0:57:47.2 CK: Yeah, and I’m not even sure if you would even call it gangster rap. There are so many sub-genres of rap music, right. And I guess what we could talk about is what percentage of aspiring rappers have themes of violence and threat and misogyny in their lyrics. And I still think it’s pretty high. Now, it may not be the stuff you hear on the radio or you’re familiar with among common rappers, but it is definitely, definitely out there at the amateur level, at the aspiring level.
0:58:17.3 SC: Good. That makes sense.
0:58:17.4 CK: And I just… It’s huge. And it’s not just among blacks, it’s among white rappers and Asian rappers and Latino rappers. It is definitely still the currency by which you both make money as a rapper and gain respect as a rapper. So I think if you were… People are not rapping about… There’s just not a lot of Will Smith kind of rappers out there.
0:58:42.1 SC: But also when you’re an aspiring anything, you’re in your teenagy ansgsty period, right? The world terrible and you’re going to explain it to people.
0:58:50.0 CK: Exactly. Or you’re also going to report what’s going on in your community. A lot of cases involve rappers that are frustrated with the conditions in their communities, with the problematic police relations, and they’re calling the police out in it, in threatening ways. When does that become a problem? When is it an actual threat?
0:59:11.4 SC: Yeah… No, that’s a legitimate question, I think… That it’s hard. Like we’ve been saying, your job is very hard. And let me make it even harder by extending from hip-hop lyrics to just art more generally. What is the general theory of if I have someone who has created something, lyrics, poetry, novels, videos, right, ’cause everyone has an iPhone now, they can make their own videos. How much should that inform a juror’s deliberation about the likelihood that they could have committed the crime in front of them.
0:59:41.6 CK: Right, and this is the stuff that’s decided in the courts in these appellate cases, figuring out if something constitutes an actual threat or if it is just… There’s that question, and then there’s also, why has Quentin Tarantino never been charged for the violence in his movies. Why did… The common example that we use all the time is Johnny Cash, I Shot a Man in Reno Just to Watch him Die. Like, nobody would… Or the Dixie Chicks, Kill Earl, that… The former Dixie Chicks. Nobody would assume that what’s going on in that song, they’re actually doing.
1:00:20.4 CK: And so what is it about rap? Now, there are some nuances there that should be addressed, like rap claims authenticity. So there’s a component of rap that like, “I’m not just rapping about it, I’m doing it.”
1:00:34.3 SC: Yeah.
1:00:34.9 CK: And yeah… And so that brings a wrinkle in, but the point is, is there’s complexity there, it doesn’t necessarily mean that the rappers are doing that. Because if every rapper did what they said they were doing in their raps, it’d be World War III up in this country.
1:00:50.5 SC: Well, look, every…
1:00:51.8 CK: And that’s sort of the point.
1:00:51.8 SC: Every politician claims that they were born in a blue collar family and drank beer and everything. The fact that you think that authenticity is very important does not imply you’re authentic.
1:01:04.5 CK: Exactly. And also, there’s a difference between who you are as a person and the character you play. This is why rappers have stage names. It’s like Hulk Hogan… There’s Terry Bollea and then there’s Hulk Hogan. And when he’s in Hulk Hogan mode he’s going to say all kinds of crazy things, I’m going to rip your head off and I’m going to do this, that, and the other. And it’s part of the character.
1:01:25.1 SC: Are there lessons here for things that are not quite art or even aspire to be, but nevertheless might be brought in as evidence of what this person is like? Like personal diaries, social media posts, things like that. What are the rules as as an outsider, once again, for bringing that stuff in to impugn the character of the defendant?
1:01:46.0 CK: Yeah. The rules are very difficult and it’s very… As just a criminologist, I am not up on the legal doctrine around what is acceptable, what is a true threat. I know artistic expression has certain protections and for good reason. If I want to critique the police in a song… Because we worry about a chilling effect that that might have on speech, particularly artistic speech or artistic expression. But what all the intricacies of whether in a particular instance, lyrics from a song or just someone’s thoughts represent a threat is like… I mean, I’d have to go back to all those Supreme Court cases where they’re ruling on this and understand the complexities there.
1:02:37.1 SC: It’s difficult. It’s a lot going on. Let’s start circling back a little bit. Despite all this, crime is going down. We’ve talked a little bit about incarceration and how high it is. Some of the inequities in the system, but yet crime… Maybe since 1990 or something like that has been going down. What is our understanding of why that has been happening?
1:03:02.9 CK: Well… So first of all, there’s… As a criminologist, we talk about crime trends at different levels. There’s the societal level, and we can look at the societal factors like economic conditions and that sort of thing. We can look more at variation across cities. So I would argue that crime is not going down in some cities, but it is in others.
1:03:25.2 SC: Sure.
1:03:25.8 CK: And then even within cities where crime is going down, you have sort of the unequal distribution of that benefit. Like in some neighborhoods, crime is going up. So it’s a very complex question. Crime is going down, I’d say… I’d say on the broad scale, mainly because socioeconomic… I mean, let’s take the crime drop, ’cause that’s a very defined period. Criminologists…
1:03:49.5 SC: When was that period?
1:03:51.2 CK: So the crime drop… So remember I mentioned the crime drop early on in the interview, which is that crime rates were sort of consistently going down, starting about the early ’90s through the mid-2000s.
1:04:03.2 SC: Okay.
1:04:03.7 CK: Okay. Because when you say crime is going down, I want to get fixated, well, what years are you talking about and yeah… Because it’s actually gone up, and… Yeah. So let’s pick a defined period that everyone would agree that crime went down universally, which is the crime drop. And we have looked at a number of factors responsible for the crime drop, including the sort of drying up of the crack cocaine markets of the ’80s, the economic boom of the ’90s. My own work has looked a lot at the role of demographic shifts in our society, including a rise in immigration to cities in the United States. So contrary to a lot of popular belief, immigration to an area causes crime to go down rather than up.
1:04:49.5 CK: You wouldn’t know that after our last administration, but that’s in fact the case. So these large-scale macro forces are what we tend to look at to understand crime booms and busts. Now…
1:05:01.5 SC: And there’s the Freakonomics explanation of Roe v. Wade.
1:05:05.3 CK: No. No.
1:05:05.3 SC: No, it doesn’t work, yeah. I thought that was kind of discounted, but I wasn’t sure.
1:05:10.1 CK: Sorry. Yeah, no… That is… We’ve moved on from that, that’s pretty much been debunked.
1:05:14.9 SC: So it certainly makes perfect sense to me that the economy doing better in the ’90s would help crime go down. And in some sense, it makes perfect sense to me that the dissolution of the crack cocaine epidemic would help. But is it mostly because people who were addicted to crack committed crimes or people got arrested because they were on crack?
1:05:34.1 CK: No, so basically the recession of the crack markets involved people… It really… The role of firearms is central here.
1:05:42.6 SC: Okay.
1:05:43.4 CK: So when crack was very popular in the ’80s and out and about, and individuals were getting involved in selling crack, people were arming themselves with guns, because you can’t turn to the police when you have a problem, when you’ve gotten your drugs robbed off of you. So basically, people started arming themselves. This also meant that folks in these communities who had nothing to do with the crack cocaine market, but who navigated in these communities, also felt the need to arm themselves in protection. And we saw an upsurge in young people carrying firearms.
1:06:15.3 SC: Okay.
1:06:16.7 CK: Well, recall your statement earlier about young people development and firearms. And so we saw a surge in violence in the ’80s due to this. Which when the markets closed up and dried up a lot of that gun violence ended up going down.
1:06:36.8 SC: So there’s no rule that says that when an effect happens, there’s only one cause of it, there can be multiple causes.
1:06:41.0 CK: Exactly. That… 100%. That is exactly why it is so difficult to… Looking at something like controlling crime or predicting crime, it’s very challenging, and that’s why statistics are our friend, because we can talk about probabilities without being… Needing to be like certain. We can say within a certain range of probability, more of this equals less of that. But my students… Well, they go, “Well, what about… ” And I go, “Well, that still fits with statistics.”
1:07:17.8 SC: Yeah, that’s part of it.
1:07:19.2 CK: And have won the case is still… Works within our statistical framework.
1:07:25.7 SC: Well, and you did mention immigration as something in particular. I think that’s worth being clear about, because it is a messy situation and politically highly charged. But there’s data out there, and the short version is that I think it’s true to say that immigration does not increase crime, but what’s the longer version?
1:07:41.5 CK: So if there is one area that I have done research in where the findings are consistent and clear, it is this area. And that is both that immigrants have lower offending rates than their native-born peers, and that immigration to an area causes… It either has no impact on crime or causes it to go down. That’s it. And this has been reported in studies from the early 1900s through my meta-analysis and beyond. I did a meta-analysis with Graham Ousey at William & Mary. We basically got every single study published between 1994 and 2014, of which there were over 50 studies.
1:08:21.0 CK: And we did a meta-analysis, sort of a formal evaluation of that literature, looking at what the average effect of the immigration on crime… The average effect of immigration on crime across this body of research was. And it was null. It was basically a null relationship. When there was a significant relationship, it was more likely to be negative than positive, meaning immigration going up, crime going down. And what we also found was predicting the variability in that the coefficients, if you will, we found that studies that were more robust, that had more control variables, that had longitudinal designs, that means dealt with causality better, showed a more… A stronger negative effect than positive effect. So every… The needle points in the direction every single time.
1:09:17.1 SC: Of course, both immigrants and people who are already here are heterogeneous groups. There’s all sorts of different people coming in there. But is it nevertheless possible to go one step beyond what you just said and explain why? If there’s a slight decrease in crime, is it because immigrants are just a little bit more careful about not offending the powers that be ’cause they don’t want to be kicked out? Or is it just because they’re selected to be hard-working and trying to form a better life or what can we say?
1:09:48.7 CK: You hit two of the big ones. So the first is the…
1:09:52.4 SC: Oh, good.
1:09:52.5 CK: Selection… The selection issue. Obviously, folks coming over to the United States, not a random cross-section of the population, highly selected, hard-working, willing to delay gratification, none of the characteristics associated with criminality. There’s also the fear of maybe deportation or coming into contact with authorities. So a deterrence perspective there. There’s other factors, though, that I think are interesting. We found in some research that immigrants on average tend to have lower rates of single parent households, divorce and other kinds of family disruption. And family disruption at the macro level, is correlated with crime.
1:10:33.5 CK: So again, that’s not to say that immigrants aren’t… There aren’t households where divorce is happening and that sort of thing. But on average, they have lower rates.
1:10:45.1 SC: Statistics.
1:10:45.7 CK: They also have lower rates of unemployment compared to native-born blacks and whites, particularly… Even if that’s low wage employment, it still helps offset poverty and poverty being a correlate of some crimes. So there’s a number of competing explanations, some at the individual level, some at the more macro level. And right now I’ve got a grant from the National Institute of Justice that’s beginning to try to parse out why, which mechanisms may be responsible for this.
1:11:16.1 SC: I guess maybe one thing worth saying, although correct me if it’s emphasizing the wrong thing, but a lot of the crimes we’ve been talking about, these violent crimes or drug crimes, were excluding or not paying attention to white collar crimes very much…
1:11:29.1 CK: Exactly.
1:11:30.3 SC: Right, and that would be a very different discourse. It’s not what we think of when we think of these kinds of crimes.
1:11:36.1 CK: 100%. The whole field, unfortunately, criminology is obsessed with what we call street crimes rather than suite crimes. S-U-I-T-E. And that’s hugely, hugely problematic.
1:11:48.4 SC: Yeah. That would be a whole another podcast maybe, but okay. People who are in the suites are still committing some crimes, that’s probably true. In fact, I don’t know. Is it more likely if you have an income of over $300,000 a year, that you’re committing a crime every year than if you have one of under $50,000 a year?
1:12:06.4 CK: Let’s put it this way, that the damage done is much greater.
1:12:09.5 SC: Yeah, okay.
1:12:11.8 CK: Yeah.
1:12:12.3 SC: I thought the probability is higher, ’cause you’re at least not paying all your taxes or something like that, right?
1:12:15.5 CK: Exactly, right.
1:12:16.8 SC: The number of people who…
1:12:16.9 CK: Yeah. The question is… For a long time that… Many of these behaviors weren’t even considered criminal, they were considered creative accounting or something like that. But 100%, yes, there is plenty of white collar crime going around.
1:12:29.5 SC: Alright. So I like to end the podcast on an optimistic note if possible, but I will let you decide whether we should be optimistic or not. Crime did go down a little bit during the crime drop. Are you optimistic about how we’re doing? Do you think the criminal justice system is becoming a little bit more good or efficient or sensible or just in dealing with these? And if not, what’s the one thing we can do to make things better?
1:12:54.1 CK: Oh, that’s a good question. So what’s interesting is COVID. We didn’t talk at all about COVID and crime. The pandemic, I should say, and crime. Because one of the really interesting silver linings, if you can say something like that, to the pandemic, was when everything shut down crime plummeted. Really, it was unbelievable to see the drops in crime. Part of that is nobody’s going anywhere. So the stores are shut down… So crime absolutely plummeted. The scary thing about that, though, was that we saw it move online and shift online in a way that it is like a harbinger of the future for me.
1:13:39.0 CK: Which is sort of how are we going to deal with the complexities of combating crime in the virtual space? Which has really, really taken off. And so I think as we move forward and think about crime going down, is it really going down? Is it being displaced elsewhere? And now, by the way, it’s… In some places, it’s back up. Violent crime in some cities is quite problematic. Obviously, mass shootings are a huge, huge… So I think when we talk about run-of-the-mill crime, things seem good. But there’s a lot of things… So that’s optimistic…
1:14:19.6 SC: It is. It is.
1:14:19.7 CK: But I am going to end pessimistically, because I worry about the mass shootings that are just every day. Police violence. A lot of the what’s happening to young men of color and young women of color whose lives are being taken by misconduct by the police and other police use of force. There’s the online crime that has shifted as we get more advanced and people are using technology more in their daily lives. So those are my… And then the privatization thing, to circle back to that. Those are four areas that I think we need to be keeping our eye out on.
1:15:01.9 SC: When you mentioned online crime, what should we have in mind as the kind of crime that is prevalent online that you’re worried about?
1:15:07.8 CK: Oh, everything from… Recall when people were scurrying around to find masks, the sort of the… All of that, where they have these fake products, these problematic products. Or people were getting their checks and then they were getting false emails to log in to get your check from the government. To bigger picture kinds of tax evasion stuff… Well, yeah. So, I’m blanking on who it was that was… Remember they sold the stocks at the last minute.
1:15:45.4 SC: Oh, which one? The Senators?
1:15:47.7 CK: Yeah.
1:15:47.8 SC: I mean, Kelly Loeffler was one of them, right?
1:15:50.3 CK: Who was that? Yeah, I forget. But remember, they unloaded all of that, and that… Just that kind of thing. It ranges from the individual who’s selling illegal goods online, or who’s stealing people’s checks or are doing hate crime online. All of that, from the individual to these bigger kinds of fraud, if you will.
1:16:12.3 SC: Yeah, fraud. So this is your optimistic message that we’re entering an era of widespread fraud on the internet.
1:16:17.0 CK: That’s on the horizon and we need to figure out… Us criminologists, we’re so busy with our street crime.
1:16:22.1 SC: Well, maybe the optimistic message is that when… You mentioned the mass shootings and police brutality and things like that. Maybe we’re more cognizant of that now. Maybe there will be a momentum to try to clean that up a little bit. I don’t know.
1:16:35.9 CK: Oh, yes, I agree. I think that’s… There’s recognition of these issues as problems and there’s an awareness, and so we just need to figure out how we’re going to stay one step ahead on all of this. And reform where reform needs to happen.
1:16:52.2 SC: Those are all very wise words, I think that’s a very good ending place. Charis Kubrin, thanks so much for being on The Mindscape Podcast.
1:16:57.1 CK: Thank you, I enjoyed it.
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An important conversation for America. I really appreciated it. It does some ironic that a country obsessed with individual freedom can’t seem to fathom that the corollary of individual responsibility will drive a culture of incarceration. Something something free will.
Um episodio interessante, um tema de muita complexidade.
Gostaria que tivessem abordado a questão sobre transtornos mentais e criminalidade.
Obrigada!