The Dangers of Surveillance

March 2013:

Abstract:
From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four, our culture is full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad, and why we should be wary of it. To the extent the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context, and why it matters. Developments in government and corporate practices have made this problem more urgent. Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no tangible harms, as the Supreme Court did recently in the case of Clapper v. Amnesty International. We need a better account of the dangers of surveillance.

This article offers such an account. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of “surveillance studies,” I explain what those harms are and why they matter. At the level of theory, I explain when surveillance is particularly dangerous, and when it is not. Surveillance is harmful because it can chill the exercise of our civil liberties, especially our intellectual privacy. It ialso gives the watcher power over the watched, creating the the risk of a variety of other harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance.

At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. First, we must recognize that surveillance transcends the public-private divide. Even if we are ultimately more concerned with government surveillance, any solution must grapple with the complex relationships between government and corporate watchers. Second, we must recognize that secret surveillance is illegitimate, and prohibit the creation of any domestic surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Fourth, we must recognize that surveillance is harmful. Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine. ..Source.. by Neil M. Richards, Washington University in Saint Louis - School of Law

Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12

May 2013:

NCJ 241399
Presents data from the National Inmate Survey (NIS), 2011-12, conducted in 233 state and federal prisons, 358 local jails, and 15 special correctional facilities (operated by U.S. Armed Forces, Indian tribes, or U.S. Immigration and Customs Enforcement (ICE)) between February 2011 and May 2012, with a sample of 92,449 inmates age 18 or older and 1,738 inmates ages 16 to 17. The report ranks facilities according to the prevalence of sexual victimization, as required under the Prison Rape Elimination Act of 2003 (P.L. 108-79). The prevalence of victimization, as reported by inmates during a personal interview, is based on sexual activity in the 12 months prior to the interview or since admission to the facility, if less than 12 months. This report includes estimates of nonconsensual sexual acts, abusive sexual contacts, inmate-on-inmate and staff-on-inmate victimization, and level of coercion. It provides the first-ever national-level estimates of sexual victimization of juvenile inmates ages 16 to 17 held in adult facilities. The report also presents findings on reported sexual victimization by selected demographic and other inmate characteristics, including measures of serious mental illness for the first time.

Highlights:

---In 2011-12, an estimated 4.0% of state and federal prison inmates and 3.2% of jail inmates reported experiencing one or more incidents of sexual victimization by another inmate or facility staff in the past 12 months or since admission to the facility, if less than 12 months.

---Patterns of inmate-on-inmate sexual victimization in 2011-12 were consistent with patterns in past surveys. Rates reported by prison and jail inmates were higher among females than males, higher among whites than blacks, and higher among inmates with a college degree than those who had not completed high school.

---Eleven male prisons, 1 female prison, and 9 jails were identified as high-rate facilities based on the prevalence of inmate-on-inmate sexual victimization in 2011-12. Eight male prisons, 4 female prisons, and 12 jails were identified as high rate based on the prevalence of staff sexual misconduct. Each of these facilities had a lower bound of the 95%-confidence interval that was at least 55% higher than the average rate among comparable facilities.

---An estimated 1.8% of juveniles ages 16 to 17 held in prisons and jails reported being victimized by another inmate, compared to 2.0% of adults in prisons and 1.6% of adults in jails.

---Among state and federal prison inmates, an estimated 6.3% of those identified with serious psychological distress reported that they were sexually victimized by another inmate. In comparison, among prisoners with no indication of mental illness, 0.7% reported being victimized by another inmate.

..Source.. by Allen Beck, Ph.D., BJS Statistician, Marcus Berzofsky, Dr.P.H., Rachel Caspar, Christopher Krebs, Ph.D., RTI International

The Price of Prisons: What Incarceration Costs Taxpayers

February 2012:

Staff from Vera’s Center on Sentencing and Corrections and Cost-Benefit Analysis Unit developed a methodology to calculate the taxpayer cost of prisons, including costs outside states’ corrections budgets. Among the 40 states that participated in a survey, the cost of prisons was $39 billion in fiscal year 2010, $5.4 billion more than what their corrections budgets reflected. States’ costs outside their corrections departments ranged from less than 1 percent of total prison costs in Arizona to as much as 34 percent in Connecticut. The full report provides the taxpayer cost of incarcerating a sentenced adult offender to state prison in 40 states, presents the methodology, and concludes with recommendations about steps policy makers can take to safely rein in these costs. Fact sheets provide details about each of the states that participated in Vera’s survey. ..Source.. by Vera Institute

Download(s)

The Price of Prisons report

The Price of Prisons: 40 state fact sheets

Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register

May 2013:

Summary:
Federal rulemaking is an important mechanism through which the federal government implements policy. Federal agencies issue regulations pursuant to statutory authority granted by Congress. Therefore, Congress may have an interest in performing oversight of those regulations. Measuring federal regulatory activity can be a useful way for Congress to conduct that oversight. The number of federal rules issued annually and the total number of pages in the Federal Register are often referred to as measures of the total federal regulatory burden.

Certain methods of quantifying regulatory activity, however, may provide an imperfect portrayal of the total federal rulemaking burden. For example, the number of final rules published each year is generally in the range of 2,500-4,500, according to the Government Accountability Office (GAO). Some of those rules have a large effect on the economy, and others have a significant legal and/or policy effect, even if the costs and benefits are minimal. On the other hand, many federal rules are routine in nature and impose minimal regulatory burden, if any. In addition, rules that are deregulatory in nature and those that repeal existing rules are still defined as “rules” under the Administrative Procedure Act (APA, 5 U.S.C. §§ 551 et seq.) and are therefore included in that total.

The Federal Register provides documentation of the government’s regulatory and other actions, and some scholars, commentators, and public officials have used the total number of Federal Register pages each year as a measure for the total amount of regulatory activity. Because the Federal Register has been in print since the 1930s, the number of pages can be useful for crosstime comparisons. However, the total number of Federal Register pages may not be an accurate way to measure regulatory activity for several reasons. In addition to publishing proposed and final rules in the Federal Register, agencies publish other items that may be related to regulations, such as notices of public meetings and extensions of comment periods. The Federal Register also contains many other items related to non-regulatory activities, including presidential documents, notices, and corrections. In 2011, approximately 32% of the total pages in the Federal Register were in the “Rules and Regulations” section, the section in which final rules are published.

This report serves to inform the congressional debate over rulemaking by analyzing different ways to measure federal rulemaking activity. The report provides data on and analysis of the total number of rules issued each year, as well as information on other types of rules, such as “major” rules, “significant” rules, and “economically significant” rules. These categories have been created by various statutes and executive orders containing requirements that may be triggered if a regulation falls into one of the categories. When available, data are provided on each type of rule. Finally, the report provides data on the number of pages and documents in the Federal Register each year and analyzes the content of the Federal Register. ..Source.. by Maeve P. Carey, Analyst in Government Organization and Management (Cogressional Research Service)

Overcharging

March 2013:

Abstract:
The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various meanings given to “overcharging,” when the term is defined at all, have made it difficult to ascertain what this practice entails, why it is improper, and who the worst offenders are. This essay aims to improve the ongoing conversation about overcharging in two ways: first, by disentangling and fleshing out the core meanings of this term; and second, by proposing and then applying some metrics to identify prosecuting authorities that chronically overcharge. ..Source.. by Kyle Graham, Santa Clara University School of Law

Catch Me If You Can: : An Analysis of Fugitive Sex Offenders

2013:

Abstract:
The presumed dangers presented by sex offenders who have absconded from authorities have played a prominent role in public discourse surrounding state and federal sex offender management policy. The current study is the first to empirically investigate the characteristics of absconded sex offenders and explore how this group compares to other groups of sex offenders.

Utilizing data from the Florida sex offender registry (N = 23,557), this exploratory study compares the characteristics and risk factors of absconders with those of compliant and noncompliant (nonabsconding) registrants as well as with those with convictions for failure to register (FTR). Absconders, as a group, were less likely than compliant registrants to be listed as predators, and less likely than both compliants and noncompliants to have a minor victim or to be a repeat sex offender.

Absconders were also least likely to have a prior FTR conviction, but those with a previous FTR conviction were more likely to abscond from registration than probation. The findings fail to support the hypothesis that fugitive sex offenders are more sexually dangerous (especially to children), and suggest a multitude of explanations for absconding. ..Source.. by Jill Levenson, Alissa Ackerman, and Andrew Harris

The Expansion of Criminal Registries and the Illusion of Control

2013:

Abstract:
The American public consistently ranks crime prevention as the single most important objective for the criminal justice system, putting this goal ahead of punishment, enforcement, and rehabilitation. One popular but controversial method recently employed to prevent recidivism is the use of offender registries. The most common type of registry currently in use is the sex offender registry.

Responding to the public’s perception that sex offenders pose a particular risk to society, federal legislators—as well as legislators in all 50 states and the District of Columbia— have enacted legislation creating mandatory sex-offender registries. The primary rationale for tracking and notification requirements was that giving the public access to information would allow citizens to protect themselves and other vulnerable members of society.

A wealth of evidence suggests that sex offender registries have not accomplished the goal of making citizens safer. Nevertheless, lawmakers in a number of states have proposed new crime registries for offenses ranging from crimes against children, to the manufacture of methamphetamine, to murder. Moreover, poll data has revealed that the American public supports expanding registries to include crimes other than sex offenses.

The rising popularity of public crime registries in spite of evidence of their inefficacy is perplexing, until one considers the social science research revealing individuals’ need to perceive control over anxiety-provoking threats. The illusion of control and attribution literature provides a rich body of work suggesting that the implementation of such registries, rather than providing any real instrumental advantage, serves to bolster feelings of selfefficacy and minimize public anxiety. ..Source.. by Molly J. Walker Wilson* Associate Professor of Law and Co-Director of the Center for the Interdisciplinary Study of Law, Associate Professor of Psychology, Saint Louis University School of Law.