This week’s readings introduce several issues related to the increased use of information technology in the criminal justice system, and the many challenges that criminal justice agencies face in impl
VOLUME 1 THE NATURE OF CRIME : C ONTINUITY AND CHANGE A B S T R A C T 219 Maureen Brown is Associate Professor at the University of North Carolina at Charlotte. Criminal Justice Discovers Information Technology by Maureen Brown During the last half of the 20th century, information technology became a central force in the field of criminal justice. Information, with its associated technologies, provided a critical support structure for operations. Yet, it also created new dilemmas for criminal investi- gations, prosecutions, and prevention. While information technology assumed a major role in supporting the socioeconomic framework, it also mandated a fundamental rethinking of legislative policies per- taining to security, privacy, and criminal activity. The rise of the information-centric economy brought a host of opportunities and challenges to the field of criminal justice. Issues pertaining to information technology operations, policy, and criminology pose sub- stantial challenges to the field of criminal justice as it enters the next millennium. CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 220 T he shift from an industrial to an information-based economy was one of the most significant changes occurring in many nations in the last 20 years of the 20th century. By the turn of the century, the production, sale, and service of information and its associated technologies provided a critical support struc- ture to the world economy. Given the promise that information technology might afford, global investments in information technology grew to more than $500 billion annually (G2 Research 1997). This chapter considers the growth of information technology (IT), its adoption by various actors in the criminal justice system, and the implications for the goals of and expectations for the criminal justice system. The chapter has two sections. The first section uses a timeline to describe the growth of IT within various sectors of the criminal justice system. The operational aspect elaborates on the extent to which computer technology has permeated police, court, and correc- tions agencies to promote service delivery. Conversely, the criminal perspective examines issues surrounding computer crime and its impacts on policies and pro- grams. Finally, the civil side examines the changes per- taining to civil rights. Exhibit 1 provides a synopsis of many of the milestones that mark the technological changes of the last half of the century. The second section discusses major hurdles and challenges confronting the field of criminal justice. Although computer-based innovations began as tools to advance transaction-based processesÑa goal that was easily achievedÑby the end of the century, crim- inal justice professionals pursued more ambitious goals for IT, hoping that IT would enhance organiza- tional knowledge. Managers expected cases, problems, and events to be identified, tracked, and evaluated more easily, thereby improving productivity and performance. In striving to meet the expectations, however, several hurdles were encountered at every stage of the IT-adoption process. In addition to the technological challenges, organizational hurdles impeded procurement, implementation, operations, and maintenance, regardless of organization size. For example, large organizations experienced problems with system design and personnel training; small jurisdictions suffered from funding and expertise limitations. Specifically, the next section sheds light on In addition to the technological challenges, organi- zational hurdles impeded procure- ment, implementa- tion, operations, and maintenance, regardless of organization size. For example, large organizations experienced prob- lems with system design and per- sonnel training; small jurisdictions suffered from funding and exper- tise limitations. 1946 ÐThe first large-scale electronic general purpose digital computer was created by Dr. John W. Mauchly and J. Presper Eckert: the Electronic Numerical Integrator and Computer (ENIAC). 1951 ÐThe first commercially available electronic digital computer (UNIVAC I) is introduced by Remington Rand. The UNIVAC I correctly predicts that Dwight D. Eisenhower will win the presidential election. 1952 ÐDr. Grace Hopper invents the first high-level programming language. 1955 ÐThe New Orleans police department installs the first electronic data- processing machine, a vacuum tube-operated calculator with a punch card sorter and collator that summarizes arrests and warrants. 1958 ÐSecond-generation computers are built with transistors replacing vacuum tubes. There were roughly 2,500 computers in use in the United States. 1960 ÐThe programming language COBOL is developed by a committee headed by Dr. Hopper. ÐThe St. Louis Police Department installs the first computer-aided dispatch system. 1964 ÐThe computer chip is introduced, leading to the third generation of computer machines. By 1964, the number of computers in use in the United States has grown to 18,000. ÐThe Crime Commission report produces recommendations on police technology. ÐThe Federal Bureau of Investigation inaugurates the National Crime Infor- mation Center (NCIC), providing a national computerized filing system on wanted persons, stolen vehicles, weapons, and other items of value. The system processes more than 6,580 transactions per day. ÐAllegheny County, Pennsylvania, installs data-processing equipment to improve operations in civil court. 1966 ÐThe National Law Enforcement Telecommunications System, a message- switching facility that links all State police computers with the exception of Hawaii, is established. ÐThe Freedom of Information Act (FOIA) passes. 1967 ÐThe Advance Regional Justice Information system is established by the San Diego police department for clearing investigative cases. Exhibit 1. Major information technology events and implementation milestones in the criminal justice system THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 221 continued 1968 ÐThe first use of an 8-inch floppy magnetic storage disk is demonstrated by Alan Shugart of IBM. ÐThe Omnibus Crime Control Act establishes the Law Enforcement Assistance Administration (LEAA) program, which includes a mandate to increase the use of IT. ÐAT&T announces the creation of 911. ÐThe National Institute of Justice (NIJ) is created to, among other goals, Òadvance technology assimilation.Ó 1969 ÐThe ARPANET network, predecessor to the Internet, is established. ÐThe first microprocessor chip is developed by Dr. Ted Hoff. ÐThe National Consortium for Justice Information and Statistics is established. 1970 ÐThe fourth generation of computers arrives with the invention of the large- scale integration chip, which contains roughly 15,000 circuits. ÐLEAA begins to spur technology innovation efforts over the next 12 years by providing roughly $50 million to State and local law enforcement agencies. ÐThe Fair Credit Reporting Act of 1970 passes. 1971 ÐThe microprogrammable computer chip is developed by Dr. Ted Hoff. ÐIntel introduces the first microprocessor, the 4004, capable of 60,000 operations per second. ÐThe National Center for State Courts (NCSC) is created as an independent nonprofit organization dedicated to improving the administration of justice. 1973 ÐThe first court-operated, computer-aided transcript (CAT) system is installed. 1974 ÐC programming is developed. ÐThe Federal Privacy Act of 1974 passes. 1975 ÐIBM introduces the first laser printer. ÐThe first commercially successful microcomputer, the Altar, becomes available. ÐOne of the first major studies investigates local-level police, corrections, and courts information technology activities. 1976 ÐSteve Wozniak and Steve Jobs build the first Apple computer. 1977 ÐNCSC begins the Court Improvement Through Applied Technology Project. CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 222 Exhibit 1 (continued) 1978 ÐNCSC publishes Computer Use in the Courts: Planning, Procurement, and Implementation. 1979 ÐThe first spreadsheet, VisiCalc, is introduced. ÐCompuServe, the first public online service, is founded. ÐNCSC survey reveals that 500 State-level courts are employing data- processing techniques while 100 courts are actively participating in local criminal justice information systems. Mid- ÐLEAA funds projects such as State Judicial Information System and to lateGavel-A National Model Trial Court Information System. 1970s 1980 ÐThe first hard drive, the Winchester, is introduced, revolutionizing storage for personal computers. ÐBill Gates, working for IBM, develops MS-DOS. ÐEnhanced 911 is developed. ÐThe Privacy Protection Act of 1980 passes. 1981 ÐThe Silicon 32-bit chip is produced. ÐIBM introduces the personal computer; more than 300,000 are sold in the United States. ÐThe Police Foundation Survey reports that almost all law enforcement agencies serving 1 million or more persons have some sort of computerized searching capability. 1982 ÐA total of 3,275,000 personal computers are sold. ÐHayes introduces the 300-bps smart modem. ÐLEAA is abolished. ÐCompaq, Inc., is founded. 1983 ÐSeven percent of U.S. households own computers; in 5 years, the number jumps to 20 percent. 1984 ÐIBM introduces the Intel 80286 microprocessor. ÐApple introduces the Macintosh computer. ÐNCSC releases the State Judicial Information System Project report. THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 223 Exhibit 1 (continued) continued ÐNCSC hosts the first National Court Technology conference. ÐCongress creates the State Justice Institute (SJI) to foster joint innovations in Federal and State courts. ÐThe Justice Assistance Act creates the Office of Justice Programs, which currently consists of the Bureau of Justice Assistance (BJA), the Bureau of Justice Statistics, NIJ, the Office of Juvenile Justice and Delinquency Prevention (OJJDP), and the Office for Victims of Crime (OVC). ÐThe Computer Fraud and Abuse Act of 1984 passes. 1986 ÐSJI opens. ÐThe International City Management Association releases a second major study examining law enforcement, corrections, and courts systems in local government. ÐNIJ funds first assessment of the impact of a map-based crime analysis system in Chicago. ÐThe Computer Fraud and Abuse Act of 1986 and the Electronic Communications Privacy Act of 1986 pass. 1987 ÐThe 80386 microprocessor is introduced. ÐSJI begins awarding grants for technology innovations. 1988 ÐThe Computer Matching and Privacy Protection Act of 1988 passes. 1989 ÐThe Intel 486 becomes the worldÕs first 1 million transistor microprocessor. At a size of .4Óx .6Ó, it can execute more than 15 million instructions per second. ÐTim Berners-Lee invents the first Internet-based hypermedia that becomes known as the World Wide Web (WWW). ÐNCSC and SJI release the first issue of Court Technology Bulletin,a bimonthly publication on technology in the courts. ÐNCSCÕs Technology Information Exchanges Services begins. ÐThe Forum on the Advancement of Court Technology (FACT) is formed to facilitate dialogue between vendors and court managers regarding the application of technology in court operations. CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 224 Exhibit 1 (continued) 1990 ÐMicrosoft Corporation releases Windows 3.0, selling hundreds of thousands of copies. More than 54 million computers are in use in the United States. ÐThe Technology Information Services (TIES) program fields more than 1,000 requests for information on IT. ÐTIES opens the Court Technology Laboratory. 1991 ÐThe World Wide Consortium releases standards that describe the framework for linking documents on different computers. ÐSenator Al Gore proposes the High Performance Computing and Communications (HPCC) initiative for building a high-speed Òdigital highwayÓ for Federal agencies. ÐThe U.S. Department of Justice establishes the Computer Crime Unit within the Criminal Division. 1992 ÐMicrosoft releases Windows 3.1. 1993 ÐThe successor to the Intel 486, the Pentium microprocessor, is introduced. It contains 3.1 million transistors and is capable of performing 112 million instructions per second. ÐThe HPCC initiative is significantly expanded to the National Information Infrastructure, a broadband digital network allowing universal access. ÐThe White House launches its first Web page. ÐTwo-thirds of all police departments are using computers in criminal investigations, crime analysis, budgeting, and staff allocation. ÐMore than 90 percent of police departments serving populations of more than 50,000 are using computers for criminal investigation, budgeting, dispatch, and staff allocation. ÐThe College of William and Mary unveils Courtroom 21. 1994 ÐNetscape Navigator 1.0 is launched. ÐThe Violent Crime Control and Law Enforcement Act of 1994 is passed. ÐMemorandum between the U.S. Department of Justice and the U.S. Department of Defense to conduct joint research on information systems development efforts is written. ÐNIJ opens the National Law Enforcement and Corrections Technology Center (NLECTC) to promote the use of technology in criminal justice. THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 225 Exhibit 1 (continued) continued ÐTechnology Beat, a serial published by NLECTC focusing on technology in criminal justice, is first published. ÐThe Computer Abuse Amendments Act of 1994 passes. 1995 ÐMicrosoft releases Windows 95. ÐTIES TIS fields more than 2,000 requests for information on IT. ÐJustice Information Network (JUSTNET) is established to promote infor- mation collection and dissemination. ÐNIJ establishes the Office of Science and Technology. ÐThe National Criminal Justice Reference Service (NCJRS) goes online. ÐBJA funds the National Criminal History Program, awarding a total of $112 million to every State to improve criminal history information systems. ÐRoughly 83 percent of all State prosecutors use computers. 1996 ÐMicrosoft releases Windows NT 4.0. ÐTelecommunications Act of 1996 passes. ÐMore than 76 percent of full-time large prosecutorsÕ offices and 70 percent of medium offices have adopted some sort of integrated computer system. Systems typically include courts, law enforcement, and district attorneyÕs offices. ÐThe Computer Abuse Amendments Act of 1996 passes. 1997 ÐInternet Explorer 4.0 is released. Approximately 50 million users are connected to the WWW. 1998 ÐWindows 98 is shipped. ÐE-commerce (electronic commerce) allows buyers to obtain merchandise over the Internet. ÐMore than 10 million people are telecommuting. ÐThe Crime Identification Technology Act of 1998 (Public Law 105Ð251) passes, making more than $1.25 billion available for integrated justice systems. 1999 ÐIntel releases the Pentium III microprocessor, which provides enhanced multimedia capabilities. ÐMicrosoft introduces Office 2000. CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 226 Exhibit 1 (continued) THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 227 the operational, criminal, and civil challenges as the criminal justice system struggles to take full advan- tage of the information age. Some of the difficulties agencies experience in taking advantage of IT stem from the rapidity and scope of its developments. In a span of 25 years, the computer industry grew to comprise 10 percent of the gross domestic product in the United States. In two short decades, the field of IT became larger than the auto, steel, mining, petrochemical, and natural gas industries combined. For example, between 1988 and 1995, IT sales grew 14 percent in constant dollars (U.S. Department of Commerce 1997), with the Government sector accounting for roughly $80 billion every year in IT expenditures (G2 Research 1997). By 2000, IT represents a major global economic support structure (Tapscott and Caston 1993). The discussion that fol- lows highlights the changes that occurred within the fields of IT and the resulting impacts on police, courts, and corrections. IT adoption and implementation creates both benefits and costs. IT can assist with efficiency and productivi- ty gains by allowing tasks to be conducted in parallel, by eliminating steps in a process, and by reducing the amount of time it takes to conduct a task. IT can also aid decisionmaking through its ability to store, condense, and display large quantities of information for developing and evaluating operational initiatives. However, the benefits of IT do not come without significant resource invest- ments. The hurdles and challenges of adoption and implementation can negate the recognition of benefits. On the downside, IT requires substantial investments in training, maintenance, and coordination. In addition to these operational costs, IT can introduce security breaches. Data that were once on paper in filing cabinets behind locked doors are now stored on hardware that may be vulnera- ble to theft and destruction. Yet another downside of IT relates to its role in crime. As discussed later, the adoption of IT has created additional incentives and mechanisms for the perpetration of crimes such as embezzlement, pornog- raphy, and sabotage. Although this chapter concentrates on the operational bene- fits of IT and the civil and criminal impacts, it is recognized that the costs of IT for society as well as criminal justice agencies and other organizations are substantial. On the downside, IT requires substantial investments in train- ing, maintenance, and coordination. In addition to these operational costs, IT can introduce security breaches. Data that were once on paper in filing cabinets behind locked doors are now stored on hard- ware that may be vulnerable to theft and destruction. CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 The 1960s and 1970sÑThe Age of Discovery The operational stream Prior to the 1970s, computer technology made tremendous theoretical gains, laying the foundation for its future application to various industries and occu- pations. These theoretical gains between the 1940s and 1970s led to significant technological advances from the 1960s through the 1990s. Pivotal moments included the release of the first commercially available computer in 1951; the New Orleans Police DepartmentÕs adoption of the first arrest and warrant com- puter system in 1955; and the St. Louis Police DepartmentÕs installation of the first computer-aided dispatch system in 1960. In 1964, advances appeared in both computer design and application of com- puters to criminal justice: The third generation of computer machines appeared as the computer chip was introduced; the number of computers in the United States grew to 18,000; Allegheny County, Pennsylvania, installed the first court-based data processing system; and the Federal Bureau of Investigation (FBI) launched the National Crime Information Center (NCIC). NCIC provided the first nationwide computer filing system containing wanted persons, stolen vehicles, and weapons. At its inception, the system provided more than 6,580 transactions per day to 15 different agencies. By 1966, the National Law Enforcement Telecommunications System was adopted, linking all State police departments in the continental United States. In 1967, San Diego police began using computer technology to clear investiga- tive cases. At the same time, President Lyndon JohnsonÕs Crime Commission Report contained more than 200 recommendations, 11 of which dealt specifi- cally with police technology. The Omnibus Crime Control Act of 1968 established the Law Enforcement Assistance Administration Program (LEAA). Over the next 13 years, LEAA disbursed more than $50 million in grant funding for police technology (Northrop, Kraemer, and King 1995). Spurred in part by the findings of the Crime Commission, a long-term subsidy program administered by the LEAA provided seed money for technology adoption (SEASKATE 1998). Also in 1968, the National Institute of Justice (NIJ) was created. One of its many missions was to advance technology assimilation within criminal justice agencies. AT&T also unveiled the 911 system. Heralded as a pivotal event in police operations, the 911 function encouraged broader use of computer tech- nology in law enforcement. 228 THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 The first microcomputer chip was developed in 1969. The National Consortium for Justice Information and Statistics (NCJIS; a private, nonprofit membership organization dedicated to improving the criminal justice system through the effective application of information and identification technology) also appeared in 1969 (http://www.corp.search.org/About_SEARCH.htm). In the 1970s, IT continued to advance, and the crimi- nal justice system began using computers to stream- line operations and enhance customer service. The decade began with the arrival of the fourth generation of computers, which used integration chips with 10,000 more circuits than the chips of 5 years earlier. In 1971, Intel released the first microprocessor capa- ble of 60,000 operations per second, and the National Center for State Courts (NCSC) was established to promote technology innovation in the courts. In 1975, one of the first major studies investigating computer technology in criminal justice, based on the computerization efforts of 310 counties and 403 cities, was released by the University of CaliforniaÕs Public Policy Research Organization (PPRO) (Matthews, Dutton, and Kraemer 1976). The study found that despite advances in the IT field, local criminal justice bureaucracies did not rely heavily on computer systems to support many critical functions. In the 1970s, computer-based automation had been adopted more widely by law enforcement agencies than corrections and courts. As shown in exhibit 2, uniform crime reporting, parking tickets, and traffic accidents were the most common applications used by county law enforcement agencies. For cities, the most commonly computerized functions in law enforcement were uniform crime reporting, traffic violations, and criminal offense files. In total, across the 713 jurisdictions, uniform crime reporting (27 percent), parking tickets (27 percent), and traffic violations (24 percent) were the most frequently automated functions. Although large urban departments appeared to be recognizing the benefits of IT, these same departments felt that many applications yielded dis- appointing results (Colton 1975). Implementation was slower than was expect- ed, and disagreement was widespread about ITÕs usefulness for operations. Despite LEAAÕs $50 million during the 1970s for technology assimilation, operational benefitsÑoutside of dispatch and record reporting arenasÑwent largely unrealized. In law enforcement, by the close of the 1970s, IT was used primarily for recordkeeping, record searching, and record reporting. 229 In the 1970s, criminal justice managers were discovering what computers were and how they might assist operations. Although some adoption had occurred, for the most part it was a time of discovery and learning. CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 230 Exhibit 2. 1975 survey results of local government automation of law enforcement, corrections, and courts activities Sources: Matthews, Dutton, and Kraemer 1976; Matthews et al. 1976. Cities Counties Total # % #% #% Law enforcement activities Alias name files 65 16 4 1 69 10 Criminal offense files 112 28 48 15 160 22 Dispatching 65 16 19 6 84 12 Field interrogations 44 11 12 4 56 8 Fingerprint population 28 7 13 4 41 6 Intelligence compilation 21 5 6 2 27 4 Juvenile offense files 64 16 28 9 92 13 Modus operandi 47 12 10 3 57 8 Parking tickets 149 37 41 13 190 27 Stolen property 82 20 30 10 112 16 Stolen vehicles 88 22 33 11 121 17 Traffic accidents 131 33 32 10 163 23 Traffic violations 124 31 47 15 171 24 Uniform crime reporting 143 35 48 15 191 27 Correction activities Arrest records 120 30 47 15 167 23 Jail population 36 9 38 12 74 10 Court activities Child support records 9 2 71 23 80 11 Court calendars and scheduling 33 8 44 14 77 11 Court case disposition 28 7 30 10 58 8 Court disposition records 31 8 52 17 83 11 Court docketing 43 11 44 14 87 12 Detention records 14 3 23 7 37 5 Fines, collateral, and 32 8 44 14 76 11 bail collections Jury selection 28 7 105 34 133 19 Juvenile probation 12 3 25 8 37 5 Plaintiff/defendant records 20 5 45 15 65 9 Probation records 15 4 43 14 58 8 Wants and warrants 102 25 1 .3 103 14 THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 In the mid-1970s, correctional operations, which lacked financial capital for computerization, remained largely manual in nature. As shown in exhibit 2, the PPRO study revealed that no more than 15 percent of county correction- al systems had automated arrest records and only 12 percent had automated jail population records. Although counties appeared slow to innovate, cities were making a bit more progress. Thirty percent of the cities had automated arrest records and 9 percent had automated jail population records. Overall, by 1975 only approximately 23 percent of local government agencies had computerized arrest records and only 10 percent had automated jail popula- tion records. Although court systems demonstrated a higher level of computerization than did correctional departments, progress remained slow and uneven. According to Polansky (1996), by the early 1970s, many major urban courts had begun building court information systems. But there was little systems analysis and planning, and systemsÑdesigned and programmed by people who knew little about courtsÑnever showed the results to justify high costs. Despite these difficulties, the first court-operated, computer- aided transcript system was installed in Allegheny County, Pennsylvania, in 1973. In the 1975 PPRO study, roughly 35 percent of courts automated jury selection, while court disposition records; court calendars and scheduling; court docketing; and fine, collateral, and bail collection remained primarily manual. As shown in exhibit 2, the most common IT applications among the courts were jury selection (19 percent), warrants (14 percent), and court docketing (12 percent). By the end of the decade, a nationwide survey con- ducted by NCSC indicated that approximately 500 courts were using data processing to some extent (Polansky 1996). In summary, in the 1970s, criminal justice managers were discovering what computers were and how they might assist operations. Although some adop- tion had occurred, for the most part it was a time of discovery and learning. By the close of the decade, several major publications had been developed by major professional organizations to assist managers in computerizing operations. For example, NCSC published a series of reports, one titled Guides for Court Managers,and LEAA funded a report calledComputer Use in the Courts: Planning, Procurement, and Implementation Con- siderations.In 1978, American University published Criminal Courts Technical Assistance Project.According to Colton (1979), in the 1970s, criminal justice managers were intimidated by and cautious of IT yet very interested in the potential benefits it might offer. 231 CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 The criminal stream During the 1960s and 1970s, networking and computer hardware and soft- ware had not advanced to the point where legislation concerning the perpe- tration of computer crimes was necessary. Most of the systems at that time were mainframes that were relatively closed to the public. Although comput- er crime more than likely took place, no Federal or State legislation existed in that area. IT crimes were prosecuted under penal codes that related to the particular offense, such as theft, embezzlement, or fraud. It was not until the technological changes of the 1980s that computer crime began to emerge as an important problem. Few anticipated the technological changes the next decade would bring and did not place much emphasis on the need to deter computer crime. The civil stream The growth of IT during the 1960s and 1970s sparked intense debate over the right to privacy versus the right to access information. By the late 1990s, the criminal justice arena would find itself in the difficult position of enforcing ambiguous privacy legislation and lobbying for international treaties on data security issues. The right to individual privacy has been a longstanding constitutional issueÑthe Fourth Amendment to the Constitution guarantees Òthe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.Ó The evolution of large databases and the associated tech- nologies that promote collection, collation, and dis- semination call into question the appropriate balance between individual privacy and rights of access. The Freedom of Information Act (FOIA) became law in 1966. The Act established, for the first time, a pre- sumption that records in the possession of executive- branch agencies and departments are accessible (Mason, Mason, and Culnan 1995). FOIA guarantees the right of people to know about the business of gov- ernment. The Act requires government agencies to reveal on demand many of their records and documents. Since 1966, FOIA has been amended a number of times, each time strengthening citizensÕ access rights to government information. The 1970s also brought a number of Federal enactments substantively affecting interpretations of data rights of individuals. The Fair Credit Reporting Act, 232 Advances in IT would give rise to debates over encryption, promotion of com- merce, protection of privacy, protection of public safety, and national securityÑ issues affecting the daily operations of criminal justice agencies. THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 enacted in 1970, regulated how consumer credit reporting services could dis- close personal information. The Act defined various legal terms about credit reporting, described permissible uses for credit reports, detailed consumersÕ rights in disputing credit reports, and established the enforcement responsibili- ties of the Federal Trade Commission (FTC) (Mason, Mason, and Culnan 1995, 246). On the heels of the Fair Credit Act, the Federal Privacy Act of 1974 prohibited government agencies from using data for purposes other than those for which they were collected. In essence, it protects individual rights to privacy from govern- ment misuse of Federal records containing personal information. The Act requires agencies to collect and maintain only data relevant to their mission and forces agencies to account for every use of their information. A final piece of legislation of the 1970s, the Right to Financial Privacy Act of 1978, stipulated that personal financial records held by banks may not be released without a search warrant. Interest group coalitions began to form during the 1970s, sparking debate over what information should be collected and disseminated and for what purposes. In the following years, this debate would influence where the criminal justice system balanced privacy rights against public access. Advances in IT would give rise to debates over encryption, promotion of commerce, protection of pri- vacy, protection of public safety, and national securityÑissues affecting the daily operations of criminal justice agencies. A Flurry of ActivitiesÑThe 1980s The operational stream In the 1980s, the criminal justice system attempted to capitalize on the promises of IT. In 1980, Bill Gates developed the Microsoft Disk Operating System (MS DOS). MS DOS, coupled with the development of the 32-bit silicon chip, allowed IBM to introduce the first personal computer in 1981. During this same time, a Police Foundation survey reported that almost all law enforcement agen- cies serving areas with more than 1 million people had some sort of computer- ized searching capabilities (SEASKATE 1998). The study also suggested that procurement was a poor surrogate measure for use and institutionalization. Many departments had invested heavily in computers, but the investment had failed to produce comprehensive benefits in productivity and efficiency. In September 1982,Police Magazineasked, ÒWhy is law enforcement not making more effective use of data processing?Ó This question has persisted, and in the ensuing 20 years, research has begun to reveal that factors such as organizational support, training, and culture affect benefit attainment. 233 CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 By 1982, LEAA was abolished due to unrealistic expectations, wasteful use of funds, mounting red tape, and uncertain direction (SEASKATE 1998). Nonetheless, LEAA did contribute to bringing IT into the criminal justice sys- tem through programs like State Judicial Information Systems and Gavel-A National Model Trial Court Information System Project. In 1984, IBM released the first 80286 processor, allowing more than 6 million operations per second, and NCSC hosted its first National Court Technology Conference in Chicago. By 1986, the U.S. Congress had created the State Justice Institute (SJI) to foster technology innovations in State and local courts. During this same period, the International City Management Association released a followup survey of local governments similar to the one conducted by PPRO in 1975. The study examined all cities and counties with populations of 25,000 or more, and sampled 1 in 3 with populations between 10,000 and 25,000. Exhibit 3 shows the results from 1,032 jurisdictions. Results demon- strated substantial strides by local law agencies in their technology adoption rates. Roughly 40 percent had automated incident and accident reporting sys- tems, 35 percent used computers for administrative tasks, and 17 percent had computer-aided dispatching. Nineteen percent used IT for scheduling purposes. In addition, 27 percent planned to adopt computerized dispatching systems, 24 percent had planned to automate incident and accident reports, and 23 percent had planned to incorporate computer technology into administrative tasks. By 1985, 90 percent of the 403 U.S. cities with populations of more than 50,000 were using IT in their criminal justice systems. In 1976, roughly 20 percent of police officers surveyed suggested that inves- tigative cases would be unworkable without IT. Just 12 years later, 80 percent of police officers claimed that without computerized information, cases would be unworkable (Northrop, Kraemer, and King 1995). Four out of five police officers indicated that computers made it easier to get information, that the information was often accurate, and that time-saving benefits were frequent. Clearly, according to this study, law enforcement agencies were benefiting greatly from IT. But, benefits notwithstanding, difficulties persisted. The systems most detectives and officers employed were cumbersome, particularly for collating leads and information from a variety of sources. Especially prob- lematic were collaborations with other agencies. Systems incapable of permit- ting searches by external entities inhibited interagency efforts to capture offenders operating in a wide territory. Correctional agencies continued to lag in their technology adoption efforts. Al- though nearly one-third of the agencies reported automated wants and warrants, only a small percentage (12 percent) reported automated jail management records. 234 THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 About as many departments were planning for automation; 16 percent planned to automate wants and warrants, and 15 percent planned to adopt technology to assist with jail management. For courts, the study revealed that roughly 20 percent applied computer tech- nology to jury selection and to fines and fees collections. Approximately 15 percent applied computer technology to court scheduling and 10 percent to office administration. More local governments planned to incorporate technology in the courts: 14 percent had planned to automate court scheduling; 13 percent, fines and fees collections; 6 percent, jury selection; and 6 percent, the public attorneyÕs office. Because the 1975 and 1986 surveys overlapped in seven key areasÑtraffic acci- dents, dispatch, jail population, wants and warrants, court scheduling, jury selec- tion, and fines collectionÑcomparisons describe the growth over the decade. Automation of traffic accident reports saw the greatest gain from 23 to 42 percent. The second-fastest growth rate occurred in the wants and warrants area, which increased 13 percent. The remaining areas of dispatch, jail population, jury selec- tion, court scheduling, and fines collection did not witness substantial growth. 235 Source: Adapted from Scoggins, Tidrick, and Auerback 1986. Exhibit 3. Application software in local government criminal justice agencies in 1985 (N=1,032) #% Law enforcement Incident/accident reports 433 42 Administration 358 35 Resource management/scheduling 196 19 Traffic accidents 433 42 Dispatching 171 17 Corrections Warrants 274 27 Jail management 124 12 Courts Wants and warrants 274 27 Jury selection 222 22 Fines, collateral, and bail collections 214 21 Court calendars and scheduling 161 16 CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 Issues such as work process dependencies, computer code complexity, and ques- tions about potential gains may have slowed automation in these areas. By the mid-1980s, SJI had emerged as a major provider of technical assistance to State and local courts. Beginning in 1984, the NCSCÕs court technology con- ferences attracted thousands of professionals to witness successful technology projects (Polansky 1996). Furthermore, the agency launched the Forum on the Advancement of Court Technology in 1989 to facilitate dialogue between ven- dors and court managers on technology issues. Unprecedented increases in computing power and capacity took place during the 1980s. Whereas in the early 1980s mainframe computers executing 200,000 transactions per second were the norm, by the end of the decade, Intel had released a microcomputer chip capable of executing more than 15 million operations per second. Moreover, the cost of computing power had dropped significantly while ease of use had increased. Thus, by the close of the 1980s, criminal justice agencies were more inclined to view technology as a feasible, reliable, and necessary support mechanism for operations. The criminal stream With the rise of personal computers and networking came the realization that IT provided new ways to commit crime. During this time, the U.S. Department of Justice (DOJ) defined computer crime as Òany violations of criminal law that involve a knowledge of computer technology for their per- petration, investigation, or prosecution.Ó Until 1984, no computer crime laws existed for prosecuting many of the infractions occurring. The Computer Fraud and Abuse Act of 1984 was the first legislative act focusing directly on computer crime. The Act established a felony offense for (1) accessing a computer without authorization; (2) obtaining information via unauthorized access from the financial records of a financial institution; (3) accessing a computer to use, destroy, modify, or disclose information found in a com- puter system; and (4) interfering with government operations on a computer. Although the Act addressed some of the deficiencies in the law, criminal jus- tice professionals complained it was too ambiguous and narrow in scope to provide adequate protection. With overwhelming bipartisan support, the Act was amended in 1986. The Computer Fraud and Abuse Act of 1986 expanded the 1984 legislation and made it a felony to commit computer fraud; to alter, damage, or destroy information contained in a ÒFederal interest computerÓ; to traffic in computer passwords; and to either conceal or possess counterfeit or unauthorized access devices. Despite the well-understood need for such legis- lation, figures on the extent of computer-related crime were not available. 236 THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 The civil stream Several laws passed during the 1980s sought to balance the rights of individual pri- vacy versus rights to access information. The Electronic Communications Privacy Act of 1986 protected all forms of electronic transmissions from unauthorized inter- ception. The Act also prohibited any person or entity from knowingly divulging the contents of any communication carried on a network service. It also allowed citizens to recover damages and bring civil suits if their wire, oral, or electronic communica- tions were illegally intercepted. The Video Privacy Protection Act forbade retailers from releasing or selling video rental records without customer consent or a court order. Recognizing the ease with which records could be matched, thereby threaten- ing privacy rights, the Computer Matching and Privacy Protection Act of 1988 was passed. The Act regulated the matching of Federal, State, and local records. It sought to ensure privacy, integrity, and verification of data for computer matching, and to establish data integrity boards within federal agencies. It required Federal agencies to enter into written agreements with other agencies or non-Federal entities before disclosing records for use in computer matching programs. The Act also mandated that individuals whose records are to be matched receive advance notification. In addition, it called for establishing procedures for retaining and destroying data after matching. The Data Integrity Board was empowered to oversee and coordinate the implementation of the Act and to prescribe procedures for verifying information produced through computer matching. A Demand for Knowledge SupportÑ The 1990s The operational stream More than 54 million computers were in use in the United States by 1990, and by 1991, Senator Al GoreÕs initiatives to establish a national data communication networkÑthe information superhighwayÑwere under way. In 1993, the White House launched its first Web page, and more than 90 percent of police departments serving populations of more than 50,000 were using computers for criminal investigation, budgeting, dispatch, and staff allocation (Reaves and Smith 1995). A 1993 survey of 3,270 State and local law enforcement agencies with 100 or more full-time sworn officersÑof which 661 respondedÑshowed that the per- cent of large law enforcement agencies maintaining computerized files jumped from 39 to 55 percent in 3 years. The 1993 computer penetration rates in law enforcement appear in exhibit 4. From 1990 to 1993, the percent maintaining computerized traffic citation data rose from 30 to 46 percent, and computeriza- tion of calls for service from 30 to 45 percent (Reaves and Smith 1995). By 1993, among responding agencies, 97 percent had access to personal computers, 237 CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 83 percent had access to a mainframe computer, and 32 percent had access to car-mounted digital terminals. Ninety-four percent stated that they had automat- ed their records and 83 percent said that they used technology to assist in crime investigations. Ninety percent had arrest histories automated and 87 percent kept calls-for-service histories. Many departments had also automated many business functions. Personnel and payroll records as well as stolen property and stolen vehicle records were largely automated. In short, by the early 1990s, computer- ization of routine transactions in law enforcement was largely complete. In 1994, DOJ and the U.S. Department of Defense established a formal part- nership to conduct joint research on a variety of technologies including infor- mation systems. Furthermore, the 1994 Crime Act passed Congress, leading to the establishment of the National Law Enforcement and Corrections Technology Center (NLECTC). NLECTC was established to help identify, 238 #% Digital terminal, 214 32 car mounted Handheld 71 11 Laptop 371 56 Mainframe 549 83 Mini 358 54 Personal 644 97 Owns AFIS 81 12 Shared AFIS 190 29 Terminal access to AFIS 189 29 Budgeting 546 83 Crime analysis 546 83 Crime investigation 547 83 Dispatch 541 82 Fleet management 385 58 Jail management 202 31 Manpower allocation 386 58 Recordkeeping 623 94 Research 369 56 Exhibit 4. Law enforcement and management administration, computers and information systems, 1993 (N=661) #% Arrests 598 90 Calls for service 576 87 Criminal history 489 74 DriverÕs license 291 44 information Evidence 440 67 Fingerprints 247 37 Inventory 445 67 Payroll 476 72 Personnel 550 83 Stolen property 485 73 Stolen vehicles 473 72 Summonses 252 38 Traffic accidents 467 71 Traffic citations 456 69 UCR/NIBRS 271 41 UCR summary 494 75 Vehicle registration 316 48 Warrants 502 76 Source: Reaves and Smith 1995. THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 239 develop, manufacture, and adopt new products and technologies specifically designed for law enforcement and criminal justice applications. According to Attorney General Janet Reno, NLECTC was to be Òpart of a new law enforce- ment information network that will make it easier for law enforcement to find useful products and assist industry in identifying law enforcement require- mentsÓ (U.S. DOJ, NIJ 1994). The Justice Information Network (JUSTNET) system was established in 1995 by NLECTC. JUSTNET serves as an online gateway to technology product and service providers as well as an information hub for services of interest to the law enforcement and correctional communities. Through JUSTNET, users have access to interactive bulletin boards on a variety of topics, a comprehensive data- base of law enforcement products and technologies, and NLECTC publications. In 1995, the Bureau of Justice Assistance (BJA) awarded a total of $112 million to every State to improve criminal history information system technology. By the mid-1990s, concern about underutilization of IT in corrections led to NIJ and the National Institute of Corrections (NIC) sponsoring several studies on the adoption rate of technology in corrections. A survey of 49 correctional institutions concluded, ÒCorrectional officials were unanimous in describing management information systems as essential to their work. However, their biggest complaint was that their systems were under utilizedÓ (Kichen, Murphy, and Levinson 1993, 7). The survey suggested that the underutilization resulted from poorly designed information systems and a lack of sufficient equipment and adequate training. Although IT had become an integral support mechanism in many daily operations (see exhibit 5), systems were not well managed, negating many potential benefits. A second correctional survey released in 1995 (U.S. DOJ, NIC 1995) examined 148 Federal, State, and local corrections agencies; these consisted of 48 State and Federal adult prisons, 44 large jails and jail systems, and 56 community correc- tional agencies. By this time, IT was in use in numerous corrections operations. Approximately 80 percent of adult facilities, nearly 70 percent of community cor- rections agencies, and approximately 60 percent of large jails had access to a local area network with electronic mail capability. The majority of the facilities also had access to NCIC and local or State online offender information (see exhibit 6). Interestingly, even though the vast majority of the facilities were satisfied with their technology, negative comments such as Òminimally adequate,Ó Òslow,Ó and ÒcumbersomeÓ surfaced. A third survey of State and Federal correctional information systems, released in 1998 (U.S. DOJ 1998), focused not on hardware access but rather on the extent to which electronic data were available to support correctional operations CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 in all 50 State-level institutions. Respondents identified the data collected and maintained in electronic format and data availability for computation. The survey asked if State correctional departments maintained a database of 207 specific items deemed critical by the researchers. The data categories included offender profiles, behaviors, and release information. It turned out that no de- partment collected all of the data elements. Collection rates ranged from 16 to 85 percent, and 32 departments captured at least 50 percent of the critical data elements. Only 40 departments maintained data on offender behavior and only 38 maintained data on crimes committed by offenders under some form of supervision. Unfortunately, the study failed to evaluate data quality. In contrast to correctional experiences, by the 1990s, virtually no court, no matter how small, had not embarked on an IT project to improve services and reduce costs (Polansky 1996). NCSC established the Technology Information Exchange Service (TIES). TIES, in turn, initiated programs to assist with IT innovation, including the Court Technology Laboratory and the Technology Information Service (TIS). TIS issued more than 2,000 information packets to 240 * Administrative/facilities support. Source: Adapted from Kichen, Murphy, and Levinson 1993. #% Offender case management Admissions/releases 44 96 Parole 40 87 Classification 36 78 Inmate activities Work assignment 35 76 Education 33 72 Movement control 29 63 Offender history Prior record tracking 37 80 Detainers 35 76 Medical/mental health records 20 43 Exhibit 5. Computer adoption in corrections, 1993 (N=49) #% In program data Good time 37 80 Disciplinary reports 29 63 Grievance 18 39 Accounting* Payroll 39 85 Accounts payable 36 78 Purchasing 33 72 Personnel* Leave status 35 76 Training 32 70 Staff scheduling 23 50 THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 241 interested court personnel on issues such as case management systems, imaging, video technology, and judicial electronic document and data interchange. In the early 1990s, the TIS program fielded more than 1,000 requests annually from court agencies on IT adoption. By 1995, the annual rate of requests had doubled (Walker 1996). In the early 1990s, the Court Technology Laboratory opened; its mission was to investigate the feasibility of alternative technologies in courts. In 1993, the College of William and Mary unveiled Courtroom 21, Òthe court- room of the 21st century today.Ó It was heralded as the most technologically advanced trial and appellate courtroom in the world. With the goal of improving the timeliness of court trials while keeping costs low, the high-tech courtroom was designed to test the impact of employing state-of-the-art technology in court hear- ings. Some capabilities of the courtroom included instant access to LEXIS and FolioViews, real-time stenograph transcription (immediate transcription benefits #% Adult prison systems (N=48) Computer local area network (LAN) with e-mail capability 37 77 Computer wide area network (WAN) with e-mail capability 24 50 Federal online offender information system (NCIC) 34 71 Local or State government information system (not for offender data) 19 40 Local or State online offender information system 34 71 Large jails/jail systems (N=44) Computer local area network (LAN) with e-mail capability 25 57 Computer wide area network (WAN) with e-mail capability 13 30 Federal online offender information system (NCIC) 42 95 Local or State government information system (not for offender data) 19 43 Local or State online offender information system 42 95 Community-based corrections (N=56) Computer local area network (LAN) with e-mail capability 38 68 Computer wide area network (WAN) with e-mail capability 26 46 Federal online offender information system (NCIC) 40 71 Local or State government information system 24 43 (not for offender data) Local or State online offender information system 50 89 Exhibit 6. Information systems in corrections, 1995 Source: Adapted from the U.S. Department of Justice, National Institute of Corrections 1995. the hearing impaired and permits reviewing testimony), two-way live audio-video for witness testimony, video- taping of proceedings, consecutive translation of up to 143 languages, and animated presentations and monitor display of evidentiary items (Lederer 1997). In April 1997, the William and Mary Law School conducted an experimental jury trial to assess the facilities. The visu- al presentation of evidence resulted in substantial time savings in witness examinations (Lederer and Solomon 1997). By 1994, roughly 83 percent of all prosecutorsÕ offices used IT for office management, individual criminal matters, and case management (DeFrances, Smith, and van der Does 1996). Popular topics included electronic filing (including digital signa- tures), courtroom automation, video technologies, imaging, and court reporting technologies. The researchers sampled 308 chief prosecutors from the estimated 2,350 that try felony cases (see exhibit 7). The study also found that many offices experienced data-related problems. Poor data quality may have resulted from data coding limitations and/or a lack of quality assurance procedures. Eighty-five percent of offices reported problems with accessible data quality, including incomplete information on adult criminal records. Close to 60 percent cited problems with data accuracy and roughly 40 percent reported timeliness problems. The NCIC system had also been upgraded to include single prints of wanted persons by the 1990s. As mentioned earlier, at its incep- tion in 1964, 15 agencies used the system and executed roughly 6,580 transac- tions per day. By the 1990s, more than 79,000 agencies accessed the system, executing approximately 1.5 million transactions per day. Technical advances in computing processing, storage, and communications stimu- lated hope for service delivery improvements among criminal justice managers. During the earlier stages of IT adoption, managers hoped to speed processing and streamline manual work processes. They focused largely on transactions such as traffic tickets, dispatch, and payroll. Over the years, however, improvements in hardware and software allowed organizations to use IT not only to support trans- actions, but also to provide information-generating knowledge. By using that CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 242 During the earlier stages of IT adop- tion, managers hoped to speed processing and streamline manual work processes. They focused largely on transactions such as traffic tickets, dispatch, and payroll. Over the years, however, improvements in hardware and software allowed organizations to use IT not only to support transac- tions, but also to provide information- generating knowledge. THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 243 knowledge effectively, managers can improve the quality of service delivery. It was during the 1990s that scholars and practitioners alike began to focus on ways knowledge workers might strengthen organizations. As advances were made, practitioners expected technology to support knowledge and demanded that staff become information literate and knowledge oriented. The shift in requirements from transactions to knowledge became apparent in many fields, and these expectations have dominated criminal justice bureaucra- cies. The interdependencies of the criminal justice agencies as well as the poten- tial crime-reducing benefits from sharing and integrating data and knowledge have probably promoted a more holistic approach to information collection and analysis. The critical need for criminal justice agencies to exchange and integrate data resulted in CongressÕ passing the 1997 Crime Identification Technology Act % Office management Caseload statistics 60 Budgeting 46 Expenditures 38 Employment records 17 Information on individual criminal matters Adult criminal history records 48 Processing/outcome evidence about cases 41 Arrest of individuals 36 Juvenile delinquency history records 25 Case management by attorneys Form or letter preparation 82 Prewritten motions 71 Jury instructions 65 Court dates 55 Subpoenas 55 Discovery requests 51 Witnesses 50 Physical evidence 16 Exhibit 7. Computer use among prosecutors, 1996 Source: DeFrances and Steadman 1998. CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 (Public Law 105Ð251). It made more than $1.25 billion available for developing integrated justice systems. The Act called for (1) upgrading criminal history and criminal justice record systems, including systems operated by law enforcement agencies and courts; (2) improving criminal justice identification; and (3) pro- moting compatibility and integration of national, State, and local systems for criminal justice purposes. Although many jurisdictions have sought integrated systems, technological and organizational hurdles have proven difficult to overcome. Organizational issues related to collaboration, training, and funding; shortages in technical personnel; and security concerns have thwarted efforts. Nonetheless, by the late 1990s, more than a dozen States were in the process of either developing or implementing plans to allow interagency data exchange and integration. These collaborative efforts took many forms and often involved a diverse set of actors. But the goals were fairly similar: to allow all components of the criminal justice com- munity to share comprehensive case management, incident, and investigative data across organizational boundaries. The criminal stream In 1991, DOJ established the Computer Crime Unit (CCU) within the Criminal Division. CCU was given responsibility for prosecuting computer crimes, lobbying for strengthened penalties for computer crime, and encouraging expansion of the Federal computer crime statute. Despite CCUÕs many responsibilities, the absence of a comprehensive legal framework for computer crime encouraged it to focus more on lobbying than on prosecutorial functions. CCU lobbying goals included (1) focusing on unauthorized use rather than unauthorized access of computer systems (in the legal sense,usewas broadly defined to include indirect and direct access, whereas accesswas defined by direct access only); (2) criminalizing mali- cious programming (or the insertion of such programs); (3) legislating the forfeiture of computers used in the commission of crimes; and (4) enacting stricter sentences. In 1994, the Computer Abuse Amendments Act was expanded to address the transmission of viruses and other harmful code. The Act made it illegal to know- ingly transmit a computer program (such as a virus, time-bomb, or worm) that causes damage. And in 1996, the Act was amended, making it illegal to intention- ally access a protected computer or cause either reckless damage or a denial of service. Thus, by the end of the 1990s, Federal computer crime legislation covered (1) interstate and foreign communications; (2) theft or compromise of national defense, foreign relations, atomic energy, or other restricted information; and (3) the intentional transmission of damaging programs. Moreover, legislation 244 THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 prohibited unauthorized access of U.S. Government and most financial institutionsÕ computers. Federal legislation also addressed the unauthorized access of computers in other States or countries. In addition to the State and Federal enactments, every State except Vermont had passed some form of computer crime regulation. Despite the many differences among the statutes of the 49 States, State legislation addressed 6 common categories: n Intellectual propertyÑexpanded the idea that computer programs, computer data, and computer services are property or intellectual property. n Computer tamperingÑmade illegal Òknowingly or recklesslyÓ degrading or disrupting computer services to the extent that such actions impair the ability of authorized users to obtain full use of their computer system. n Computer trespassÑmade illegal the unautho- rized access of a computer and its contents includ- ing using the contents of a computer to aid and abet the commission of a crime. n Unlawful duplication/disclosureÑmade illegal copying and distributing the contents of a comput- er without authorization. n DefensesÑallowed some defenses to restrict unauthorized access. n Venues/sites of offenseÑspecified the jurisdiction for purposes of prosecuting the theft of computer information. Eighty-six percent of the States had addressed computer tampering and com- puter trespass. By 1999, 43 States had passed some form of regulation per- taining to computer tampering and trespass. The next most frequently cited legislative area pertained to the expanded property concept. Sixty-two percent (31 States) had passed legislation extending the property concept to computer technology. Less commonly addressed in the State legislation were unlawful duplication (20 States), jurisdiction of offense issues (16 States), and defens- es against unauthorized access (6 States). 245 By the late 1990s, more than 100 million people had access to data networks, and the U.S. financial industry transmitted trillions of dollars of transactions every day over computer networks. The Computer Emergency and Response Team at Carnegie Mellon University found a 498-percent increase in computer crime between 1991 and 1994. In 1994 alone, 40,000 Internet computers were attacked in 2,460 separate incidents. THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 The civil stream of the 1990s was dominated by debate. Several major pieces of legislation were introduced, but none passed. The underlying philosophical issues spurred debate, speculation, and uncertainty. At the same time, sophisti- cated computer procedures were evolving. These promoted the economic value of information by establishing sophisticated data-matching techniques and impenetrable data channels. Economic incentives led to complex computer encryption techniques for stopping unauthorized access. The ability to restrict access severely limited criminal justice efforts to identify, deter, and prosecute computer crime. In sum, operationally, by the close of the 1990s, criminal justice agencies ex- pected much from technological innovations. It was no longer enough to auto- mate simple transactions such as payroll, dispatch, and crime reporting. Many agencies looked to technology to enhance knowledge by providing access to a wealth of previously untapped information. Mapping systems, hot-spot analysis, and object-oriented technologies dominated the decade as researchers sought to define technology solutions capable of enhancing knowledge. If technology was to truly serve the needs of the criminal justice system, then technology had to facilitate the accretion of knowledge that could translate into improved perform- ance and service delivery. At the same time, criminal and civil issues dominated the IT landscape. The use of technology to perpetrate crimes skyrocketed, but only one-tenth of all com- puter crimes were reported. The FBI estimated that between 85 and 97 percent of computer intrusions went undetected (Icove, Seger, and VonStorch 1995). The ongoing debate about public rights to access information versus proprietary interests restricting those data offered little to criminal justice professionals in their attempts to protect and serve. In 1993, recognizing the computer-related difficulties facing the criminal justice community, Vice President Al Gore established the Government Information Technology Services Board. He challenged the Board to establish goals address- ing the information technology needs of the criminal justice community. The board identified the following goals: to define the criminal justice communityÕs information requirements, to test the core requirements, to establish a joint Government-private sector Criminal Justice Information Advisory Group, and, by June 1998, to prepare a global criminal justice information network. The Crime Identification Technology Act of 1998 (PL 105Ð251) provided roughly $1.25 billion for integrated system development efforts to achieve these goals. The following section examines several major challenges that confront the crim- inal justice system as it enters the new millennium. 247 CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 IT Challenges Confronting the New Millennium The criminal justice arena turned to IT to leverage many of the benefits that technology promised. The credo of being able to access Òany thing, any time, any placeÓ offered the opportunity to gain significant operational benefits. Yet, with the promise of the technology revolution came unexpected hurdles and challenges. In the last two decades of the 20th centu- ry, criminal justice agencies experienced substantial turmoil as the information age gained momentum and they struggled to adapt. The use of technology to improve operations, new mechanisms for crime per- petration, and civil issues pertaining to protection of both privacy and access all stimulated major changes in the criminal justice system. The speed at which IT grew proved particularly chal- lenging to the criminal justice system because few anticipated the speed of these developments and the scope of their impact on criminal justice. Since many of these challenges were unexpected, agencies scram- bled to chart new policies and programs with mini- mal lead time. Although many predicted significant benefits, few understood the corollary costs and dis- advantages the criminal justice field would be forced to assume. The discussion below focuses on some of the major IT challenges deriving from the opera- tional, criminal, and civil domains of the criminal justice system. The challenges confronting the crimi- nal justice field fall in the areas of (1) enhancing col- laboration and knowledge; (2) sustaining IT change; (3) deterring, investigating, and prosecuting computer crime in a global market; and (4) mediating the privacy-access debate. Enhancing collaboration and knowledge The first challenge focuses on collaborating to capture and promote knowledge among staff and officers. In the past, IT equated to automating manual proce- dures and spewing dataÑmuch of which had little relevance to the officer in the field. The link between data and knowledge appeared evasive and fleeting. Although data were cataloged, searched, and analyzed, frustrations grew. Criminal justice professionals complained about the lack of timely, complete, 248 Sustaining the changes associated with IT innovation has proven difficult for many organiza- tions. The true cost in technological adoption is in the ongoing maintenance that technology demands. Complex training requirements, ongoing funding needs, and system staffing shortages have thwarted many well-intended efforts. THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 accessible, and accurate data. The need to enhance knowledge by sharing criti- cal data, documents, images, and key transactions among agencies dominated discussions. Establishing effective partnerships and overcoming the fears associated with information sharing remain challenging. Traditionally, the criminal justice culture has discouraged information sharing, often for good reason. Exposure could compromise an investigation or jeopardize life or property. Developing partnerships and establishing what information can and should be shared does not come easily. Figuring out how to reward data sharing while maintaining security and accountability continues to challenge the criminal justice field as it looks to technology to advance knowledge. Sustaining IT change Sustaining the changes associated with IT innovation has proven difficult for many organizations. The true cost in technological adoption is in the ongo- ing maintenance that technology demands. Complex training requirements, ongoing funding needs, and system staffing shortages have thwarted many well-intended efforts. Although grant opportunities provided funds for sys- tem startup, operational budgets have often failed to provide the requisite ongoing support. Ensuring that electronic-based data are maintained in a reliable, documented, and replicable fashion, with a chain of custody, demands procedures for data collection, retention, and distribution. One of the greatest challenges facing any organization is the extent to which it is capable of assimilating the changes that technology brings. Technology often forces changes in work processes and procedures, in training and support, and in policies and communications. It can be a challenge to weather and assimilate the changes while avoiding a detrimental setback in services. Given the rate of IT growth, the procedures and methods for sustaining IT-driven innovations demand constant attention. Deterring, investigating, and prosecuting computer crime in a global market The third challenge confronting the criminal justice system is how to deter, investigate, and prosecute crime related to IT in a global marketplace. Computer crime can penetrate political boundaries and override legislative policies with ease. The dimension of the problem was best articulated by Attorney General Reno when she stated that, via computer crime, ÒYou can sit in a kitchen in St. Petersburg, Russia, and steal from a bank in New YorkÓ (1997a). As a consequence, controlling computer crime requires 249 CRIMINAL JUSTICE DISCOVERS INFORMATION TECHNOLOGY CRIMINAL JUSTICE 2000 sophisticated international treaties. In her desire to address the global vul- nerabilities that make deterrence, investigation, and prosecution difficult, Reno proposed an agreement among the P8 countries to combat computer crime. As shown in exhibit 8, the agreement calls for the international crim- inal justice community to institutionalize 10 major principles for combating computer crime. The extent to which international support can be elicited and maintained will have a significant bearing on the criminal justice sys- temÕs ability to arrest computer crime. 250 Exhibit 8. International principles for combating computer crime Source: Reno 1997a. 1. There must be no safe havens for those who abuse information technologies. 2. Investigation and prosecution of international high-technology crimes must be coordinated among all concerned states, regardless of where harm has occurred. 3. Law enforcement personnel must be trained and equipped to address high-technology crimes. 4. Legal systems must protect the confidentiality, integrity, and availability of data and systems from unauthorized impairment and ensure that serious abuse is penalized. 5. Legal systems should permit the preservation of, and quick access to, electronic data that are often critical to the successful investigation of crime. 6. Mutual assistance regimes must ensure the timely gathering and exchange of evidence in cases involving international high-technology crime. 7. Transborder electronic access by law enforcement to publicly available (open source) information does not require authorization from the state where the data resides. 8. Forensic standards for retrieving and authenticating electronic data for use in criminal investigations and prosecutions must be developed and employed. 9. To the extent practical, information and telecommunications systems should be designed to help prevent and detect network abuse, and should also facilitate the tracing of criminals and the collection of evidence. 10. Work in this area should be coordinated with the work of other relevant international agencies to ensure against duplication of efforts. THE NATURE OF CRIME : C ONTINUITY AND CHANGE VOLUME 1 Mediating the privacy-access debate The fourth challenge facing criminal justice involves the privacy-access debate. The definition used to determine whether information is public or private is in constant flux (Branscomb 1994; Icove, Seger, and VonStorch 1995; Reno 1997b). Moreover, they sug- gest that it will continue to be a moving target until we agree on which ethical values to impose and which guiding principles to follow (Branscomb 1994, 176). The use of encryption techniques sits at the center of this debate. These computer capabilities thwart the ability to deter, investigate, and prosecute crime. According to Reno, encryption techniques can make it impossible for law enforcement agencies to lawfully overhear criminal telephone conversations or gain access to electronically stored evidence (1997b). She argues that encryption techniques can seriously jeop- ardize public safety and national security. She calls for a balanced approach supporting both commercial and privacy interests but also maintaining the ability to investigate and prosecute serious crime. Recognizing that encryption is critical to security, privacy, and com- mercial interests, Reno calls for a ÒkeyÓ approach to safeguarding information where computer devices incorporate a virtual Òlock and keyÓ mechanism. A viable key management infrastructure would promote electronic commerce and enjoy the confidence of encryption users. She also recommended a key man- agement infrastructure permitting law enforcement to obtain court-ordered access, criminalizing the improper use of encryption key recovery information and the use of encryption for criminal purposes, and allow- ing the Federal Government use of key recovery encryption that is inoperable within the private sector. The debate between privacy and commercial interests will continue to rage until an effective compromise can be reached among the various interest groups. Unfortunately, as identified by Branscomb, the criminal justice field will continue to wrestle with a legal infrastructure that can best be described as Òan impenetrable and irrational thicket of sometimes irrelevant and often unenforceable lawsÓ (1994, 180). 251 According to Reno, encryption tech- niques can make it impossible for law enforcement agencies to lawfully overhear criminal telephone conversations or gain access to electronical- ly stored evidence. She argues that encryption tech- niques can seriously jeopardize public safety and national security. She calls for a balanced approach supporting both commercial and privacy interests but also maintaining the ability to investigate and prosecute serious crime. 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This week’s readings introduce several issues related to the increased use of information technology in the criminal justice system, and the many challenges that criminal justice agencies face in impl
This article was downloaded by: [Florida State University] On: 24 August 2013, At: 19:55 Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Justice Quarterly Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/rjqy20 “McJustice ”: On the McDonaldization of Criminal Justice Robert M. Bohm Published online: 18 Feb 2007. To cite this article: Robert M. Bohm (2006) “McJustice ”: On the McDonaldization of Criminal Justice, Justice Quarterly, 23:1, 127-146 To link to this article: http://dx.doi.org/10.1080/07418820600552576 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. 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Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/terms- and-conditions JUSTICE QUARTERLY VOLUME 23 NUMBER 1 (MARCH 2006) ISSN 0741-8825 print/1745-9109 online/06/010127-20 © 2006 Academy of Criminal Justice Sciences DOI: 10.1080/07418820600552576 ESSAY “McJustice”: On the McDonaldization of Criminal Justice Robert M. Bohm Taylor and Francis Ltd RJQY_A_155240.sgm 10.1080/07418820600552576 Justice Quarterly 0741-8825 (print)/1745-9109 (online) Essay 2006 Academy of Criminal Justice Sciences 23 1 000000March 2006 RobertBohm [email protected] This essay examines the “McDonaldization” of criminal justice or “McJustice.” In doing so, it provides another useful way of understanding the development and operation of criminal justice in the United States. The McDonaldization of vari- ous social institutions has succeeded because it provides advantages over other, usually older, methods of doing business. It has made McDonaldized social insti- tutions bureaucratic and rational in a Weberian sense and, thus, more efficient, calculable, predictable, and controlling over people (often by nonhuman tech- nologies). The principal problem with McDonaldized institutions, and another characteristic of the process, is irrationality or, as Ritzer calls it, the “irrational- ity of rationality.” A primary purpose of this essay is to expose some of the irra- tionalities of “McJustice” and to suggest some possible responses to them. Keywordscriminal justice; McDonaldization; irrationality of rationality; bureaucracy; efficiency; calculability; predictability; control The purpose of this essay is to examine the “McDonaldization” of criminal justice. The concept of “McDonaldization” or “McJustice” provides another useful way of understanding the development and operation of criminal justice in the United States. 1 “McDonaldization,” as employed by sociologist George Ritzer, refers to “the [bureaucratic] process by which principles of the fast-food restaurant are coming to dominate more and more sectors of American society Robert M. Bohm is a Professor of Criminal Justice and Legal Studies at the University of Central Florida. He is a past president and Fellow of ACJS as well as a recipient of its Founders Award. His research interests focus on criminal justice, criminological theory, and capital punishment. Corre- spondence to: Robert M. Bohm, Department of Criminal Justice and Legal Studies, University of Central Florida, Orlando, FL 32816, USA. E-mail: [email protected] 1. A popular way of understanding criminal justice in the United States is by employing metaphors. The most frequently used metaphor depicts the criminal justice process as a “system”—a “criminal justice system.” For additional metaphors of criminal justice see Kraska (2004).Downloaded by [Florida State University] at 19:55 24 August 2013 128 BOHM as well as of the rest of the world” (Ritzer, 2004, p. 1). The theoretical basis for McDonaldization is Max Weber’s theory of rationality and bureaucracy (Ritzer, 2004, p. 24; but see Wood, 1998, for a critique of Ritzer’s use of Weber). The concept of McDonaldization has been used to depict developments in a variety of different social institutions, including religion (Drane, 2001), education (Hayes & Wynyard, 2002; Parker & Jary, 1995), the media (Prichard, 1987), medicine (Reiser, 1978; Ritzer & Walczak, 1987), and leisure and travel (Rojek, 1993), as well as society itself (Ritzer, 2004). However, to date, the concept of McDonaldization has only rarely been employed in the analysis of criminal justice or issues related to criminal justice (see, for example, Kemmesies, 2002; Robinson, 2002; Shichor, 1997; Umbreit, 1999). The McDonaldization of various social institutions has succeeded because it provides advantages over other, usually older, methods of doing business (see, for example, Ritzer, 2004, p. 16). It has made McDonaldized social institutions bureaucratic and rational in a Weberian sense and, thus, more efficient, calcu- lable, predictable, and controlling over people (often by nonhuman technologies). In the case of McDonaldized businesses, it has also made them more profitable. The principal problem with McDonaldized institutions, and another characteristic of the process, is irrationality or, as Ritzer (2004, p. 17) calls it, the “irrationality of rationality.” For example, McDonaldization does not always benefit all of the participants in the process or society in general. Indeed, McDonaldization has several important costs or dangers associated with it. A primary purpose of this essay is to expose the costs, dangers, or irrationalities of “McJustice.” In the following sections the characteristics of McDonaldized criminal justice or “McJustice”—efficiency, calculability, predictability, control, and irrational- ity—are described. Because of space limitations, only a few criminal justice examples can be provided (for other examples see Kemmesies, 2002; Robinson, 2002; Shichor, 1997; Umbreit, 1999). Efficiency: Administering Justice by Plea Bargaining Efficiency is the choosing of “the optimum means to a given end” (Ritzer, 2004, p. 43). Bureaucracies attempt to increase efficiency by requiring employees (and sometimes customers) to follow steps in a predesigned process governed by orga- nizational rules and regulations and by having managers supervise employees (and customers) to make sure they follow the rules, regulations, and process (Ritzer, 2004, p. 13). Increasing efficiency usually entails “streamlining various processes, simplifying products, and having customers do work formerly done by paid employees” (Ritzer, 2004, p. 44). Despite best efforts, however, the optimum means to a given end are rarely found because of historical constraints, financial difficulties, organizational limitations, and uncooperative human nature (Ritzer, 2004, p. 43). Therefore, most bureaucracies are relatively satisfied with the illu- sion of efficiency (Ritzer, 2004, p. 137) or an incremental increase in efficiency, knowing that maximization of efficiency is probably an unobtainable goal.Downloaded by [Florida State University] at 19:55 24 August 2013 McJUSTICE 129 With the huge number of cases handled each year by the agencies of criminal justice, operating efficiency has long been a practical necessity, albeit often- times an unrealized goal. One of the first scholars to discuss operating efficiency in criminal justice was Herbert Packer (1968), who wrote about the topic in the context of his well-known crime control model of criminal justice. In Packer’s crime control model, which is arguably an apt description of the current opera- tion of criminal justice in the United States, the control of crime is by far the most important function of criminal justice (Packer, 1968, p. 158). (Control is another characteristic of McDonaldized institutions.) Although the means by which crime is controlled are important in this view (illegal means are not advo- cated), they are less important than the ultimate goal or end of control. To better control crime, advocates of the crime control model want to make the process more efficient—to move cases through the process as quickly as possible and to bring them to a close (Packer, 1968, p. 158). Packer (1968, p. 159) char- acterizes the crime control model as “assembly-line justice.” To achieve “quicker closure” in the processing of cases, a premium is placed on speed and finality (Packer, 1968, p. 159). Speed requires that cases be handled informally and uniformly; finality depends on minimizing occasions for challenge, that is, appeals (Packer, 1968, p. 159). Packer’s assembly-line metaphor also describes the process by which McDonald’s sells billions of hamburgers. Consider the McDonald’s experience. When people order a Big Mac from McDonald’s, they know exactly what they are going to get. All Big Macs are the same, because they are made uniformly. More- over, a person can get a Big Mac in a matter of seconds most of the time. However, what happens when a person orders something different, or something not already prepared, such as a hamburger with ketchup only? The person’s order is taken, and she or he is asked to stand to the side because the special order will take a few minutes. The person’s special order has slowed down the assembly line and reduced efficiency. This happens in criminal justice, too! If defendants ask for something special, such as a trial, the assembly line is slowed and efficiency is reduced. Even when criminal justice is operating at its best, it is a slow process. The time from arrest to final case disposition can typically be measured in weeks or months. If defendants opt for a jury trial, as is their right in most felony cases, the cases are handled formally and are treated as unique; no two cases are the same in their circumstances or in the way they are handled. If defendants are not satisfied with the outcome of their trials then they have the right to appeal. Appeals may delay by years the final resolution of cases. To increase efficiency—meaning speed and finality—crime control advocates prefer plea bargaining (Packer, 1968, p. 162)—the quintessential bureaucratic and McDonaldized process in criminal justice. Plea bargaining also illustrates the interrelationship of all of the characteristics of McDonaldization. Currently, about 95 percent of all convictions in felony cases are the result of guilty pleas (Durose & Langan, 2003, p. 9, table 10). Plea bargains can be offered and accepted in a relatively short time. Also, cases are handled uniformly becauseDownloaded by [Florida State University] at 19:55 24 August 2013 130 BOHM the mechanics of a plea bargain are basically the same; only the substance of the deals differs. Additionally, with successful plea bargains, there is no oppor- tunity for challenge; there are no appeals. In short, plea bargaining allows cases to be disposed of quickly, predictably (another characteristic of McDonaldization), and with little of the adversarial conflict associated with criminal trials. In terms of McDonaldization, plea bargaining streamlines and simplifies the administration of justice and, thus, is the perfect mechanism for achieving efficiency. Although plea bargaining became a common practice in state courts shortly after the Civil War and, as a result of the tremendous number of liquor law violations, was instituted at the federal level during Prohibition in the 1930s (Alschuler, 1979; Padgett, 1990), it has neither a constitutional nor statutory basis. It did not receive formal recognition until 1970 in the case of Brady v. United States, in which the Court upheld the use of plea bargaining because of the “mutuality of advantage” it provided the defendant and the state. Plea bargaining benefits most of the participants in the criminal justice process (Packer, 1968, p. 222) by, among other things, reducing uncertainty or unpredictability. Uncertainty is a characteristic of all criminal trials because neither the duration of the trial, which may be a matter of minutes or of months, nor the outcome of the trial can ever be predicted with any degree of accuracy. Plea bargaining eliminates those two areas of uncertainty by elimi- nating the need for a trial. Plea bargaining serves the interests of prosecutors by guaranteeing them high conviction rates, which is an indicator of job perfor- mance and a useful tool in the quest for higher political office. It serves the interests of judges by reducing their court caseloads, allowing more time to be spent on more difficult cases. In addition, if a large proportion of the approxi- mately 95 percent of felony cases that are handled each year by plea bargain- ing were to go to trial instead, the administration of justice in the United States would be even slower than it already is. Plea bargaining serves the inter- ests of criminal defense attorneys by allowing them to spend less time on each case. It also allows them to avoid trials. Trials are relatively expensive events. Because most criminal defendants are poor, they are usually unable to pay a large legal fee. Thus, when criminal defense attorneys go to trial, they are frequently unable to recoup all of their expenses. Plea bargaining provides many criminal defense attorneys with the more profitable option of charging smaller fees for lesser services and handling a larger volume of cases. Even most criminal defendants are served by plea bargaining. A guilty plea generally results in either no prison sentence or a lesser prison sentence than the defen- dant might receive if found guilty at trial. Plea bargaining also often allows defendants to escape conviction of socially stigmatizing crimes, such as child abuse. By “copping” a plea to assault rather than to statutory rape, for exam- ple, a defendant can avoid the embarrassing publicity of a trial and the wrath of fellow inmates or of society in general. In sum, there is no question that plea bargaining has many advantages, including making the administration of justice more efficient.Downloaded by [Florida State University] at 19:55 24 August 2013 McJUSTICE 131 Calculability: Fiscal Costs of Administering Justice Calculability refers to the quantitative aspects of McDonaldization (e.g., costs and the amount of time it takes to get the product). Calculability allows McDonaldized institutions “to produce and obtain large amounts of things very rapidly” and “to determine efficiency” (Ritzer, 2004, p. 66). Calculability also makes McDonaldized institutions more predictable and enhances control—two of the other characteristics of McDonaldized institutions (Ritzer, 2004, pp. 66–67). Although the costs of administering justice in the United States are enormous— $167 billion in 2001 (Bauer & Owens, 2004, p. 1)—compared to other government expenditures, the amount spent on justice is modest. Only about 7 percent of all state and local public expenditures in 2001 were spent on criminal and civil justice (Bauer & Owens, 2004, p. 1). State and local governments funded about 85 percent of all direct justice system expenses in 2001 (Bauer & Owens, 2004, p. 1). By contrast, state and local governments spent nearly 4 times as much on education, about twice as much on public welfare, and approximately the same amount on hospitals and healthcare (Bauer & Owens, 2004, p. 1). Of the $167 billion spent in 2001, police protection received 43 percent; judicial and legal services 23 percent; and corrections 34 percent (Bauer & Owens, 2004, p. 4, table 3). Note that from 1982 to 1999, judicial and legal services always received less state, local, and total funding than either police protection or corrections (Sour- cebook of Criminal Justice Statistics, 2002a, pp. 3–4, table 1.2), which might also help explain the penchant for plea bargaining described above. For the past three decades, about two thirds of the American public have believed that the amount spent on administering justice in the United States is a bargain—that too little money is spent on crime control (though in 2002, only 56 percent so believed); very few people think that too much money is spent (Sourcebook of Criminal Justice Statistics, 2002b, p. 135, table 2.40). Thanks to efficiencies such as plea bargaining the administration of justice in the United States is generally considered cost effective. Predictability: Reducing Sentencing and Parole Discretion In McDonaldized institutions, predictability means that products and services will be uniform everywhere and at all times; there are no surprises (Ritzer, 2004, p. 14). For consumers, predictability provides peace of mind (Ritzer, 2004, p. 86). Employees of the process are also predictable in their actions because of rules and supervision (Ritzer, 2004, p. 14). For workers, predictability makes their jobs easier (Ritzer, 2004, p. 86). “To achieve predictability” McDonaldized institutions stress “discipline, order, systemization, formalization, routine, consistency, and methodical operation” (Ritzer, 2004, p. 86). Beginning in the mid-1970s, state legislatures began replacing indeterminate sentencing—long the principal form of sentencing in the United States—with determinate sentencing, and some states began abolishing parole (federalDownloaded by [Florida State University] at 19:55 24 August 2013 132 BOHM parole was abolished in 1987) (Carter, 1996, p. 148). These changes were moti- vated primarily by an increased public fear of crime, the loss of confidence in rehabilitation as a correctional goal, and the unpredictability of decisions made by judges and parole boards. The public began to believe that judges had become “soft” on crime, rehabilitation of criminal offenders was not possible, and parole boards were releasing from prison many dangerous offenders who had served only a small portion of their sentences. The hope of determinate sentencing was that it would at least get criminals off the streets for longer periods of time. Some people also considered a determinate sentence more humane (and predictable) because prisoners would know exactly when they would be released, something that they did not know with an indeterminate sentence (Griset, 1991, pp. 176–177). Although the evidence never supported the widely held belief that judges were “soft” on crime (see, for example, Reaves, 2001), under indeterminate sentencing schemes judges did vary widely in the sentences they imposed for similar crimes and offenders. Critics argued that, besides being generally unfair (and irrational in a McDonaldized sense), such judicial disparity in sentencing resulted in discrimination against people of color and the poor (see, for exam- ple, Spohn & Holleran, 2000; Tonry, 1996, p. 7). As a result, several states and the federal government developed guidelines for determinate sentencing; other states established sentencing commissions to do so (Tonry, 1993, 1996, p. 10). Sentencing guidelines were another way of restricting judicial sentencing discretion. Another response to the “soft on crime” allegation, and another way that legislatures restricted judicial sentencing discretion in the 1980s, was by enact- ing “mandatory minimum” sentencing statutes (Ditton & Wilson, 1999; Tonry, 1996, pp. 6–7). “Mandatory minimum” sentences require that offenders—most frequently offenders who commit certain types of offenses such as drug offenses, offenses committed with weapons, and offenses committed by repeat or habitual offenders—serve a specified amount of prison time. All states and the federal government have one or more mandatory minimum sentencing laws. To reduce the discretion exercised by parole boards (in those states that retained them), states in the 1980s also enacted “truth-in-sentencing” statutes that generally required prisoners to serve a substantial portion of their prison sentence, usually 85 percent of it (Ditton & Wilson, 1999). All of these changes made sentencing more predictable. Control: Rules, Regulations, Structure, and Technology Control in McDonaldized institutions involves the ability of the institution to get employees and customers to follow the rules and regulations governing the process (Ritzer, 2004, p. 15). In the case of employees, this is accomplished by training them to do a few things in a precise manner with managers and inspec- tors providing close supervision (Ritzer, 2004, p. 15).Downloaded by [Florida State University] at 19:55 24 August 2013 McJUSTICE 133 Criminal justice officials are controlled (at least in theory) by a myriad of rules and regulations. The US Constitution, for example, prohibits police offic- ers from engaging in unreasonable searches and seizures (Fourth Amendment) and correctional officers from employing cruel and unusual punishments (Eighth Amendment)—to name just two constraints. State constitutions provide similar limitations. Decisions by the US Supreme Court and other courts also check the behavior of criminal justice officials. For instance, in Tennessee v. Garner (1985), the Supreme Court severely restricted police use of deadly force. The cases of Morrissey v. Brewer (1972) and Gagnon v. Scarpelli (1973) prescribe strict guidelines for parole and probation revocation. Statutes are another way of controlling the behavior of criminal justice officials. As described in the last section, statutes providing determinate sentencing, sentencing guidelines, and mandatory minimum sentences control judges’ sentencing decisions. Rules of evidence and criminal procedure govern practice and procedure in the various courts. Most criminal justice officials are also controlled by professional codes of conduct and departmental policies and regulations. The military structures of both police and correctional agencies are intended to promote the control of police officers and correctional officers by those higher in the chain of command. Technology has also aided in their control. The police radio, for example, allows supervisors at the stationhouse to control patrol officers by keeping both parties in constant contact. A new way that McDonaldization is influencing the control of police officers is through the highly touted Compstat program. Begun in New York City in 1994, Compstat is a strategic problem-solving system that combines “state-of-the art management principles with cutting-edge crime analysis and geographic systems technology” (Willis et al., 2004, p. 464; also see Mabrey, 2002; Weisburd, Mastrofski, McNally, Greenspan, & Willis, 2003). Its explicit purpose is to help police departments fight crime and improve the quality of life in their communi- ties by overcoming traditional bureaucratic irrationalities, such as loss of focus on reducing crime, department fragmentation, and lack of cooperation between units because of “red tape” and turf battles, and lack of timely data on which to base crime control strategies and to evaluate the strategies that are imple- mented (Weisburd et al., 2003, pp. 425–426; Willis et al., 2004, pp. 464, 470). The information produced by Compstat is also used by the chief of police to judge the performance of precinct commanders and by precinct commanders to hold their officers accountable. Unlike traditional police bureaucracies, Comp- stat is supposed to make police organizations “more focused, knowledge-based, and agile” (Willis et al., 2004, p. 490). The Irrationality of Rationality: Other, Often Unanticipated Consequences According to Ritzer (2004, pp. 17, 134), McDonaldized institutions are rational systems, and rational systems inevitably produce irrationalities “that limit,Downloaded by [Florida State University] at 19:55 24 August 2013 134 BOHM eventually compromise, and perhaps even undermine their rationality.” “At the general level,” Ritzer (2004, p. 134) notes, “the irrationality of rationality is simply a label for many of the negative aspects of McDonaldization” (emphasis in original). It is important to understand that Ritzer is describing a particular kind of rationality—one that has been pejoratively called “technological rationality” or “instrumental reason” (see, for example, Gouldner, 1976; Horkheimer, 1996; Marcuse, 1966). As applied to McDonaldized businesses, it is “rational” only as a business strategy (Schroyer, 1975, p. 26) that has as its ultimate goal profit maxi- mization. In the case of McJustice, it currently promotes “law and order” as instrumental values over alternative ideals such as justice and freedom (see Schroyer, 1975, p. 20). McDonaldized institutions produce many irrationalities that undermine their rationality. They can be inefficient because of excess red tape and other prob- lems (Ritzer, 2004, p. 27). They can produce poor quality work and a decline in employee effort because of the emphasis on quantification (the substitution of quantity for quality and the resulting mediocrity of both the process and the product), the often mind-numbing routine, and the absence of meaningful employee job input (Ritzer, 2004, pp. 27, 66, 86). Most employees of McDonaldized institutions “are expected to do a lot of work, very quickly, for low pay” (Ritzer, 2004, p. 14). McDonaldized institutions can be unpredictable because employees, no matter how well trained and supervised, sometimes are confused, unsure about what they are supposed to do, inefficient, and apt to make mistakes. To achieve greater control, McDonaldized institutions increas- ingly attempt to replace employees with more consistent machines and nonhu- man technologies (Ritzer, 2004, p. 15). 2 Ironically, those efforts can be counterproductive and control over employees and clients can be lost because they become angry at the machines and nonhuman technologies that replace the former and frustrate the latter (Ritzer, 2004, pp. 27–28). Reliance on machines and nonhuman technologies can also reduce the skills necessary to do the job, and the opportunity, perhaps even the ability, of people to think for themselves (Ritzer, 2004, p. 133). McDonaldized institutions also can be dehu- manizing (Ritzer, 2004, p. 27). Weber especially feared what he called the “iron cage” of rationality in which people get trapped in bureaucracies that deny them their basic humanity (Ritzer, 2004, p. 28), as, for example, when crime victims are ignored or mistreated by criminal justice officials. In the remainder of this section irrationalities of plea bargaining, criminal justice fiscal policies, determinate sentencing, and efforts to control criminal justice officials are described. 2. People control human technologies (e.g., a screwdriver), while nonhuman technologies (e.g., an order window at a drive-through) control people (Ritzer, 2004, p. 106). Machines and nonhuman technologies are employed in McDonaldized institutions for other reasons besides control, such as increasing productivity, greater quality control, and lowering costs (Ritzer, 2004, p. 107).Downloaded by [Florida State University] at 19:55 24 August 2013 McJUSTICE 135 Plea Bargaining As noted in the previous section on efficiency, plea bargaining has become the principal method of administering justice in the United States because it bene- fits most of the participants in the criminal justice process. However, two types of criminal defendants are not served by the practice of plea bargaining and both illustrate irrationalities of the process. The first are innocent, indigent, highly visible defendants who fear being found guilty of crimes they did not commit and receiving harsh sentences. Such defendants are sometimes pres- sured by overworked and inexperienced defense attorneys into waiving their constitutional right to trial. The second type is the habitual offender. In this context, a habitual offender is a person who has been convicted under a state’s habitual-offender statute (sometimes called a “three strikes and you’re out” law). Most such statutes provide that upon conviction of a third felony, a defen- dant must receive life imprisonment. Although habitual-offender statutes would seem to imprison offenders for life, they actually are used mostly as bargaining chips by prosecutors in plea negotiations and not as they were intended (see, for example, LaFree, 2002, pp. 880–881). The irrationality of habitual-offender statutes is illustrated by the case of Bordenkircher v. Hayes (1978). The defendant, who had previously been convicted of two minor felonies, was arrested and charged with forging an $88 check. The prosecutor in the case told the defendant that if he did not plead guilty to the charge and accept a 5-year prison sentence, which on its face seemed very harsh, then the prosecutor would invoke the state’s habitual- offender statute. The statute required the judge to impose a sentence of life imprisonment if the defendant were found guilty at trial. The defendant elected to play “you bet your life” and turned down the prosecutor’s plea offer. At trial, the defendant was found guilty of forging the check and was sentenced to life imprisonment. Clearly, the defendant in this case was not served by plea bargaining or, perhaps, was not served by refusing the prosecutor’s offer. Crime victims are another group whose interests are not always served by plea bargaining, and their plight illustrates further the process’s irrationality. Long ignored in the adjudication of crimes committed against them, victims often feel “revictimized” by the deals that prosecutors offer offenders and believe they have been denied the full measure of justice they seek and deserve. Another problem with plea bargaining is that it precludes the possibility of any further judicial examination of earlier stages of the process (Packer, 1968, p. 224). In other words, with the acceptance of a guilty plea, there is no longer any chance that police or prosecutorial errors before trial will be detected. Criminal Justice Fiscal Policies The public’s belief in the general cost effectiveness of criminal justice has been described in the section on calculability. Criminal justice is not always costDownloaded by [Florida State University] at 19:55 24 August 2013 136 BOHM effective, however, and the exceptions expose irrationalities of the process. For example, from the mid-1920s until the mid-1970s the costs of prisons and jails were not a major issue because the incarceration rate in the United States remained relatively stable. That did not change until the mid-1970s and the War on Drugs when the incarceration rate began to increase significantly, with each subsequent year showing a new high. By the 1980s, many states and the federal government were facing serious crowding problems. The immediate response was an ambitious and expensive prison and jail expansion program. (Other strat- egies included privatization and intermediate sanctions.) Between 1977 and 2001, total state and local costs for building and operating correctional institu- tions increased about 900 percent. 3 Between 1982 and 2001, the corresponding increase at the federal level was about 700 percent (see footnote 3). By compar- ison, between 1977 and 2001, states and localities increased expenditures to education by 448 percent, to hospitals and healthcare by 482 percent, and to public welfare by 617 percent (Bauer & Owens, 2004, p. 4). In 1995, for the first time ever, more money was spent building new prisons than new university structures in the United States—$2.5 billion for construction in higher education and $2.6 billion for prison construction. From 1987 to 1995, state prison expen- ditures rose 30 percent while higher education funding fell 18 percent (“More Spent on Prisons,” 1997, p. A-6). Ironically, by 1995, while expenditures for prison construction and expansion were peaking, the overall growth of the state (but not federal) prison popula- tion began slowing (Harrison & Beck, 2003). In 2001, the 1.1 percent growth in the state and federal prison population (entirely attributable to the slower growth in the state prison population) was the lowest annual rate recorded since 1972 (Harrison & Beck, 2003). Legislators, in an effort to appear tough on crime by incarcerating increasing numbers of law violators for longer periods of time, and correctional officials, on whose projections the legislators justified their decisions, had miscalculated the confinement space that was needed. Consequently, by the end of the century, many jurisdictions had new or expanded correctional facilities that sat empty or operated well under capacity (Blomberg & Lucken, 2000, p. 182; Camp & Camp, 2002, p. 85). Many of the new facilities could not be used (even where there was a need) because continuing budget crises precluded the hiring of personnel to operate them (Blomberg & Lucken, 2000, p. 182). Other correctional institutions utilized their excess capacity by contracting with other jurisdictions to house the other jurisdiction’s prisoners (Camp & Camp, 2002, p. 93). 3. The costs of “all correctional functions” between 1977 and 2001 increased 1,100 percent (Bauer & Owens, 2004, p. 4). “All correctional functions” include the costs of operation and employment for jails, prisons, probation, parole, pardon, and correctional administration for both adults and juveniles (Bauer & Owens, 2004, p. 4). Because approximately 80 percent of all funds allocated to corrections in the United States are spent to build and run institutions, and only about 20 percent are spent on community corrections (Bonczar & Glaze, 1999, p. 2), the increase in costs of prisons and jails during the period is estimated to be about 900 percent.Downloaded by [Florida State University] at 19:55 24 August 2013 McJUSTICE 137 The costs of capital punishment illustrate another irrationality of criminal justice. As noted previously, about 95 percent of criminal cases never reach trial, but instead are resolved through the cost-effective process of plea bargaining. Capital cases are an exception; they are rarely plea bargained (Bohm, 2003, p. 137). They are also very expensive. The average cost per execution in the United States (i.e., the entire process) ranges from about $2.5 million to $5 million (in 2000 dollars) (Bohm, 2003, p. 135). Extraordinary cases can cost much more. The state of Florida, for example, reportedly spent $10 million to execute serial murderer Ted Bundy in 1989, and the federal government spent more than $100 million to execute mass murderer Timothy McVeigh in 2001 (Bohm, 2003, p. 135). The costs of capital trials are forcing local governments to make difficult choices. For example, a recent study in Illinois found that capital trials could increase county spending by as much as 1.8 percent per trial. Such trials are often financed through increased property taxes or funds taken from police and high- way appropriations (Governor’s Commission, 2002, p. 199). A Wall Street Journal article reported that the Texas county where the three men convicted of the 1998 murder of James Byrd were tried was forced to raise property taxes by 6.7 percent for 2 years to cover trial costs (Governor’s Commission, 2002, p. 199). Even when a capital trial does not result in a death sentence and execution, the added costs associated with the capital punishment process are incurred anyway without any “return” on the state’s investment of resources. In some death-eligi- ble cases, prosecutors forgo capital trials altogether rather than incur the expense. Based on cost effectiveness alone, capital punishment does not seem to be the most rational alternative for the most heinous crimes. Determinate Sentencing A number of problems or irrationalities have been identified with determinate sentencing schemes, described in the section on predictability. First, it has been argued that the consequences of determinate sentencing include longer prison sentences and overcrowded prisons (Goodstein & Hepburn, 1985, pp. 37–38; Griset, 1991, p. 184). In recent years, the United States has had one of the high- est imprisonment rates in the world (see, for example, International Centre for Prison Studies, 2003). Furthermore, as of 2003, the entire correctional depart- ments of 10 states were under court orders to reduce overcrowding or improve other conditions of confinement; in another 17 states, one or more institutions were under court orders for the same reasons (American Correctional Associa- tion, 2004, p. 18). A related problem of determinate sentencing is that it produces an unusually harsh prison system (but see Goodstein & Hepburn, 1985, for another view). For example, because of prison overcrowding, many states have all but abandoned even the pretense of rehabilitating offenders. Prisons are increasingly becoming places where offenders are simply “warehoused.” This trend has been referredDownloaded by [Florida State University] at 19:55 24 August 2013 138 BOHM to as the “new penology” and “actuarial justice” (Feeley & Simon, 1992, 1994). As noted, this new penology has abandoned rehabilitation in favor of efficiently managing large numbers of prisoners. Success for this new penology is not measured by reductions in recidivism (a standard measure of correctional success used in the past) but rather by how efficiently correctional systems manage prisoners within budgetary constraints. In addition, because of the abolition of good time (the number of days deducted from a sentence by prison authorities for good behavior or for other reasons) and parole under some deter- minate sentencing schemes, prison authorities are having a more difficult time maintaining discipline and control of their institutions (Griset, 1991, p. 141). Eliminating good time and parole removed two of the most important incentives that prison authorities use to get inmates to behave and to follow prison rules. Also, because of the perceived harshness of some of the determinate sentencing schemes, some judges simply ignore the sentencing guidelines (Griset, 1999, pp. 322–323). Other judges have ignored the sentencing guidelines because they believe they are too lenient. In short, many judges resent sentencing guidelines and refer to their use as “justice by computer.” Third, critics claim that determinate sentencing merely shifts sentencing discretion from judges to legislatures and prosecutors (through plea bargaining) (Clear, Hewitt, & Regoli, 1978; Goodstein & Hepburn, 1985, p. 38; Tonry, 1996, p. 7; Tonry & Frase, 2001, p. 230). Whether this shift in sentencing responsibil- ity is desirable is a matter of debate. On one hand, prosecutors generally exer- cise their discretion in secret, whereas judges exercise discretion in the open. Also, prosecutors and legislators are generally subject to more political influ- ence than are judges. Fourth, in those jurisdictions that retain good time, sentencing discretion, at least to some degree, actually shifts from legislators and prosecutors to correc- tional personnel (Clear et al., 1978; Goodstein & Hepburn, 1985, pp. 38–39; Griset, 1991, pp. 139–141, 1999, pp. 318–319). By charging inmates with prison rule violations, correctional personnel can reduce (if the charges are upheld) the amount of good time earned by inmates and, by doing so, increase an inmate’s time served. Fifth, critics contend that it is virtually impossible in determinate sentencing schemes for legislatures or sentencing commissions to define in advance all of the factors that ought to be considered in determining a criminal sentence (Tonry, 1996). Controlling Criminal Justice Officials Despite all the rules, regulations, structures, and technology intended to control the behavior of criminal justice officials, mistakes or miscarriages of justice still occur. Although such “irrationalities” have probably always plagued the administration of justice, only relatively recently, with the advent of sophisticated DNA technology, has the extent of the problem been realized. ForDownloaded by [Florida State University] at 19:55 24 August 2013 McJUSTICE 139 example, according to attorney Barry Scheck, co-founder of the Innocence Project at the Cardoza School of Law in New York City, “Of the first eighteen thousand results [of DNA tests] at the FBI and other crime laboratories, at least five thousand prime suspects were excluded before their cases were tried” (Scheck, Neufeld, & Dwyer, 2001, p. xx). That is, more than 25 percent of the prime suspects were wrongly accused. In a study of wrongful convictions conducted in the 1980s, researchers conservatively estimated that approxi- mately 0.5 percent of all felony convictions are in error (Huff, Rattner, & Sagarin, 1986). Given the annual number of felony convictions, that means there are probably thousands of people wrongfully convicted of felonies each year. 4 The researchers believe that the frequency of error is probably higher in less serious felony and misdemeanor cases. Since 1973 (as of March 28, 2005), 119 people in 25 states had been released from death row because of evidence of their innocence (Death Penalty Information Center, 2005). Many mistakes and miscarriages of justice are a result of inadequate investi- gation by law enforcement officials, who sometimes identify the wrong person as the criminal. When law enforcement officials are unable to solve a crime within a reasonable amount of time, they sometimes cut corners and jump to conclusions (Gross, 1998, p. 133). They (or others who aid them such as medical examiners and crime lab technicians) may even go so far as to lose, destroy, or manufacture evidence against a suspect (Forst, 2004, pp. 90–92; Gross, 1998, p. 133). They may also ignore or conceal evidence that does not support their suspect’s guilt or withhold exculpatory evidence from prosecutors (Westervelt & Humphrey, 2002, p. 5). By using illegal coercive and manipulative methods, law enforcement officials can get innocent suspects to confess to crimes they did not commit (Forst, 2004, p. 90; Gross, 1996, p. 485; Scheck et al., 2001, p. 116; Westervelt & Humphrey, 2002, p. 5). The wrong person is sometimes identified as the culprit because of poorly administered and biased lineups (Forst, 2004, pp. 88–89; Westervelt & Humphrey, 2002, p. 5). At trial, law enforcement offic- ers (and others such as medical examiners and crime lab technicians) sometimes commit perjury (Harmon, 2001; Radelet, Bedau, & Putnam, 1992; Scheck et al., 2001, pp. 138–162, 222–236). Prosecutors ignore evidence counter to their case, withhold exculpatory evidence from the defense, suborn perjury, misuse infor- mants, and use improper evidence (Liebman, Fagan, & West, 2000; Miller- Potter, 2002; Scheck et al., 2001; Westervelt & Humphrey, 2002, p. 5). Defense attorneys fail to communicate with their clients or communicate in a dismissive, callous or hurried manner; their efforts at discovery are sometimes perfunctory or, in some cases, they make no attempt at all; they fail to investigate allega- tions or investigate them poorly; they fail to retain needed experts and/or test physical evidence; at times their preparation is minimal, their trial advocacy is 4. Although an error rate of 0.5 percent may not seem high, consider that in 2001, a typical year, approximately 14 million people were arrested in the United States (US Department of Justice, 2002, p. 232). Assuming conservatively that 50 percent of all people arrested are convicted (Huff et al., 1986, p. 523)—about 7 million convictions in 2001—then approximately 35,000 people were probably wrongfully convicted.Downloaded by [Florida State University] at 19:55 24 August 2013 140 BOHM weak, and their cross-examination is superficial or tentative (Berry, 2003, p. 489). Defense attorneys have been known to sleep through long portions of a trial and not be declared ineffective (Bright, 2003, pp. 136–137; Mello & Perkins, 2003, pp. 371–372; Scheck et al., 2001, pp. 237–249). In capital and other felony trials, judges make many mistakes, including: not permitting the defense to present evidence of an alternative theory of the case; not permitting the defense to present certain mitigating evidence; deny- ing the right of defense experts to offer evidence; failing to order a psychiatric examination prior to trial; prejudging the case; incorrectly finding fact; refusing to give certain jury instructions; failing to admonish the prosecutor for an improper closing argument; allowing a highly prejudicial photograph during the penalty phase; failing to permit withdrawal of a guilty plea; and not having jurisdiction. (Burnett, 2002, p. 103) The gravest miscarriage of justice is undoubtedly the killing of an innocent person by law enforcement officials (see Forst, 2004, pp. 67–68) or by the state in the case of capital punishment (see Bohm, 2003, chap. 7). As for Compstat, although proponents claim that it decentralizes decision making, in practice it reinforces the traditional control elements of the military model of policing (Willis et al., 2004, pp. 480, 466–467). A problem or irrationality with Compstat is that by reinforcing the hierarchical military model of policing and its emphasis on accountability and predictability, it tends to impede a police department’s ability to achieve other organizational objectives (Weisburd et al., 2003, p. 448; Willis et al., 2004, p. 468). For example, problem-oriented and community policing rely on line officers using their discretion to solve community problems (at least in theory). However, because Compstat is based on the bureau- cratic military model of policing with its centralized command and control, line officers frequently lack the flexibility to use their discretion to respond to unan- ticipated community problems or refuse to address unanticipated problems because they fear being disciplined for mistakes. A consequence is that officers appear (and sometimes are) unresponsive to the people they serve (Willis et al., 2004, p. 470; but see Firman, 2003, for a different view). In sum, the ostensible purpose of Compstat is to improve policing by overcoming traditional bureaucratic irrationalities, but bureaucracies are difficult to change. In practice it appears that Compstat, at least so far, is just another way—albeit one that employs advanced technology and different management principles—for police leadership to control mid-level managers (precinct commanders) and street-level police officers (Moore, 2003, pp. 477–478; Weisburd et al., 2003, pp. 424, 448–449). Conclusion: What to Do? Ritzer (2004, pp. 213–215) suggests three possible responses to McDonaldization that could be applied to McJustice. The first is to do nothing. Some people like living in a McDonaldized world or, as Ritzer (2004, p. 213) calls it: a “velvetDownloaded by [Florida State University] at 19:55 24 August 2013 McJUSTICE 141 cage.” This is a position most likely held by people who have known no other type of world (Ritzer, 2004, p. 213). Such people crave the efficiency, calcula- bility, predictability, and control of a McDonaldized society. A second possible response to McDonaldization applies to people who live in what Ritzer (2004, p. 213) calls a “rubber cage.” These people like some aspects of McDonaldiza- tion but dislike or deplore other aspects. They realize the costs of McDonaldiza- tion and attempt to escape it when they can (Ritzer, 2004, p. 214). A third possible response characterizes people who view McDonaldized society as an “iron cage” (Ritzer, 2004, p. 214). These people dislike, even deplore, McDonaldization but do not believe they can do much, if anything, about it. Some of these people may attempt to escape from its influence from time to time but generally they simply resign themselves to it. Ritzer is fatalistic about the inexorable spread and domination of McDonaldization and its irrationalities (Parker, 1998, pp. 13–14; Ritzer, 2004, p. 243–244; Taylor, Smith, & Lyon, 1998, p. 106). Ritzer does not believe there are any significant collective alternatives (Jeannot, 1998, p. 141, note 3; Rine- hart, 1998, pp. 19–23; Taylor et al., 1998, p. 106). He focuses instead on more modest individualistic alternatives or ameliorations. However, a problem with individualistic alternatives, according to at least one critic, is that McDonaldiza- tion and its irrationalities are systemic. To transcend McDonaldization a systemic alternative is required (Jeannot, 1998, p. 132). But a systemic alternative is not an option for Ritzer because, as other critics claim, “Ritzer’s version of McDonaldized America is apolitical; there is no contest of viewpoints, no mobili- zation on behalf of shared interests, no imagination of a future much different than the present and worth working for” (Rinehart, 1998, p. 30; also see Taylor et al., 1998; Wood, 1998). Thus, as yet another critic observes, “people, in using McDonaldized systems, are not merely doing things but they are in practice affirming a particular way of doing things and, simultaneously, negating alterna- tive ways of doing things” (wa Mwachofi, 1998, p. 151; emphasis in original). In applying these criticisms to McJustice, accepting McJustice is not only supporting the status quo with all of its irrationalities, it is also rejecting viable, especially systemic, alternatives. Critics fault Ritzer for failing to acknowledge the partisan and ideological nature of rationality and irrationality (wa Mwachofi, 1998). What is rational or beneficial for one person or group may be irrational or harmful for another person or group, or vice versa. What is considered rational or irrational might also take different forms depending on place, time, and culture (Wynyard, 1998, p. 163). Thus, McJustice, like McDonaldization generally, is a political enterprise in which definitions of rationality and irrationality are contested. Critics also contend that Ritzer is too negative in his characterization of McDonaldized institutions; that he fails to fully appreciate the positive aspects and potential of bureaucracies and bureaucratic rationality (see, for example, Jeannot, 1998; Miles, 1998; Parker, 1998; Taylor et al., 1998; Wood, 1998). Thus, while it is true that McJustice manifests many irrationalities, it can also be enabling, helping people achieve things they otherwise could notDownloaded by [Florida State University] at 19:55 24 August 2013 142 BOHM accomplish. For example, it sometimes empowers individuals to protect themselves by way of laws and regulations from people and institutions that would otherwise infringe their rights (see Kellner, 1998, p. x). It also protects people from criminal behavior (when it is operating effectively) in cases where people cannot protect themselves. At the least, it can provide people with a sense of stability in a risky and, contrary to Ritzer’s contention, often- times unpredictable world (Miles, 1998, p. 53). The concept of McDonaldization or McJustice to describe criminal justice is imperfect, as is any metaphor. Metaphors can be useful in promoting under- standing, but they can also limit “the ways in which we think about a problem” (MacCormac, cited in wa Mwachofi, 1998, p. 152). Although fast food restau- rants are ubiquitous, no one is forced to eat at them. Some people eschew fast food; other people eat it infrequently. Many people enjoy fast food on occasion, but most people prefer a home-cooked meal or a finer dining establishment. Criminal justice is ubiquitous, too, but most people are not directly affected by it and have no desire to be involved with it. Still, most US citizens pay taxes to support it and others, for whatever reasons, cannot escape it or have a vested interest in it. Many people would prefer an improved criminal justice process or a viable alternative to McJustice that eliminated or at least significantly reduced its many irrationalities. Most people aspire to something better than McJustice. There is no shortage of alternatives, ranging from liberal reforms to more radical transformations (see, for example, Braithwaite, 1989; Currie, 1985; Governor’s Commission on Capital Punishment, 2002; Henry & Milo- vanovic, 1996; Palmer, 1994; Pepinsky & Quinney, 1991; Scheck et al., 2001; Sherman et al., 1997; Stephens, 1987). Hopefully, conceptualizing criminal justice as McJustice will motivate people to explore, debate, and implement alternatives that will improve justice and the quality of life. References Alschuler, A. W. (1979). Plea bargaining and its history. Law & Society Review, 13, 211–245. 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This week’s readings introduce several issues related to the increased use of information technology in the criminal justice system, and the many challenges that criminal justice agencies face in impl
CCJ 5078 – Week 7 Lecture Notes Overview and Objectives This week we begin the second half of the course, where you will be introduced to the ways in which computers and technology are utilized in the criminal justice system, and how advances in information technology have impacted its functioning. Substantive topics will include crime mapping, the impact of technology on policing, courts, and corrections, and the use of technology in the investigation of crimes. This week’s readings include some early articles on the increasing adoption of technology in criminal justice. As we move forward, we will read about many cutting-edge applications of IT in law enforcement. Unfortunately, we will not have much time in this course to discuss another equally important way in which technology has impacted the criminal justice system – the way in which the rapid growth in technology has led to new forms of crime that can be particularly challenging to law enforcement. Thus, the purpose of these lecture notes is to give you some basic information, definitions, and trends with regard to cyber crime. Cyber crime and technology Cyber crime is a relatively new breed of offense that involves the theft and/or destruction of information, resources, or funds by utilizing computers, computer networks, and the Internet. Computer-based technology allows criminals to operate more efficiently and effectively and presents a challenge for the justice system because cyber crime’s rapid evolution is difficult to detect through traditional law enforcement channels. Cyber crime has grown as information technology (IT) has evolved and become part of daily life in most industrialized societies. Today more than 1 billion people are using email, and over 240 million are mobile Internet users. The Internet generates enormous revenue, with spending on IT and telecommunications expected to grow by more than 6 percent per year, soon reaching about $2 trillion. Also, many critical infrastructure systems are conducted and controlled online, ranging from banking to traffic control. As this vast network of essential technology and global communication continues to grow, it has become a target for illegal activities and enterprise. Moreover, the nature of these crimes and the criminals who commit them vary considerably. Below we will discuss three general forms of cyber crime – cyber theft, cyber vandalism, and cyber terrorism. Cyber theft Since the beginning of the Industrial Revolution, every technological breakthrough has brought with it tremendous benefit for society, but also new opportunities for criminal behavior. This has been particularly true of the IT revolution. The computer and Internet provide improvements in education, commerce, entertainment, and medicine, but they also allow criminals to be more creative, efficient, and anonymous. Today, cyber thieves use a variety of methods – all of which did not exist decades ago – to either distribute illegal goods or services, or to defraud people for profit. Following are descriptions of some of the primary forms of cyber theft. I) Computer fraud a. Definitional issues This form of cyber crime is not a unique offense, but rather involves the commission of common-law fraud using contemporary technology. The definition of cyber fraud is as follows: The intentional misrepresentation of information or identity to deceive others, the unlawful use of a credit or debit card or ATM, or the use of electronic means to transmit deceptive information, in order to obtain money or other things of value. Includes instances in which a computer was used to defraud the business of money, property, financial documents, insurance policies, deeds, use of rental cars, or various services by forgery, misrepresented identity, credit card or wire fraud. Since many cases of computer fraud fit this definition, many instances of computer fraud are prosecuted under traditional statutes. However, the property that is stolen through computer fraud is often not as tangible as in traditional fraud, such as computer programs or trade secrets. b. Levels and trends According to a survey covering the year 2017, about 45% of the businesses surveyed reported falling victim to cyber theft in the previous year. Of those cyber thefts, cyber fraud was the most common form (about 43%). One increasing form of cyber fraud involves the use of a plastic covering over ATM keypads that records the keys pressed by an ATM user. A computer attached to the plastic overlay records all the information the criminal needs to clone the card. II) Denial of service attacks a. Definitional issues A denial of service attack involves the disruption, degradation, or exhaustion of an Internet connection or e-mail service that results in an interruption of the normal flow of information. Denial of service is usually caused by flooding a server with millions of bogus messages or orders. Though sometimes the attack is intended only to cause harm – in which case it would be considered cyber vandalism – in some cases, the goal is to extort money from the victimized company or organization. For example, a denial of service attack against an online casino during a major sporting event could cause the casino to lose a large amount of money. The casino may decide to give in and pay the attackers’ “ransom” to avoid angering clients and losing revenue. b. Levels and trends In the survey mentioned above, about 24% of businesses reported being the victim of a denial of service attack. Moreover, about 2/3 of those businesses reported experiencing more than one attack throughout the year. These attacks can be costly – over 4% of the businesses reported losing more than $10,000 due to the attack, while about 1% reported losing more than $100,000. III) Theft of intellectual property a. Definitional issues This involves the illegal obtaining of copyrighted or patented material, trade secrets, or trademarks (including designs, plans, blueprints, codes, computer programs, software, formulas, recipes, graphics) usually by electronic copying. Often, groups of individuals work together to illegally obtain software and then bypass its copyright protections (called “cracking” or “ripping”). The software is then posted on the Internet for others to in the group – and often the general public – to use. This particular form of intellectual property theft is referred to as “warez.” Another common form of intellectual property theft is file sharing, and especially music sharing. Though many people, including college students, casually download and share music and movies, it is considered a serious crime, with first-time penalties as high as five years incarceration and a fine of $250,000. b. Levels and trends The illegal reproduction and distribution of movies, software, games, and music is estimated to cost U.S. industries $19 billion worldwide each year. In the same survey mentioned above, about 19.2% of the surveyed firms experienced some form of intellectual property theft. Of those, 70% involved trade secrets and 47% involved copyrighted material. Intellectual property theft is even more likely than denial of service attacks to result in monetary loss over $10,000. Nearly one-third of the victimized businesses reported losing more than $100,000 due to the theft. IV) Identity theft a. Definitional issues Identity theft occurs when a person uses the Internet to assume someone’s identity, with the purpose of conducting a financial transaction in the victim’s name. This often involves opening a new credit card with the victim’s information, and/or purchasing goods using the victim’s information. Many different methods are used. In some cases, the thieves fill out change-of-address forms at the post office to have the victim’s credit card bills rerouted to them. They then contact the credit card company to request a change of address on the account. Then they order numerous expensive items over the Internet and have the items delivered to the new address. It can take months for the victim to realize that their identity has been stolen. Other identity thieves create false email accounts or websites that appear to be from legitimate businesses. These messages or website inform the person that there is a problem with their account, and then ask the person to send their personal information, such as name, address, phone number, and social security number. This information can then be used to create new accounts in the victim’s name, or to access preexisting accounts. This form of identity theft is referred to as “phishing.” Convincing victims to willingly provide their personal information is referred to as “social engineering.” Another strategy involves using viruses and malware installed on a users computer to record the necessary information. This is sometimes referred to as “technical subterfuge.” b. Levels and trends Identity theft is increasing at an alarming rate. In an identity theft supplement to the 2018 National Crime Victimization Survey (NCVS), it was found that about 23 million persons (or about 9% of all persons 16 or older) experienced at least one type of identity theft in the previous 2-year period. The cost over that two-year period was a total of nearly $15.1 billion dollars, though about one third (32%) of identity theft victims reported that they did not incur an out-of-pocket expense due to the crime. About 55% of victims spent 1 day or less resolving the financial and credit problems associated with the incident, though 6% reported that they were still experiencing problems with the theft more than 6 months after discovering it. Regarding phishing scams, in particular, an anti-phising advocacy group detected over 113,000 new phishing websites in the month of January, 2019, and similar numbers in subsequent months. Moreover, they estimated that more than 35% of computers worldwide are infected with some form of phishing malware. The financial sector was the most targeted industry of these phishing schemes (38.1%). Cyber vandalism In contrast to cyber thieves, some cyber criminals are motivated more by revenge or malice than by monetary gain. Such cyber criminals engage in various forms of cyber vandalism. Cyber vandalism involves malicious intent and ranges from sending destructive viruses and worms, to hacker attacks designed to destroy or impede important computer networks via trojan horses, logic bombs, and website defacement. These forms of cyber vandalism are described below. In addition to cyber vandalism, other traditional crimes are now committed in cyber-fashion. Cyber stalking refers to the use of the Internet, e-mail, or other electronic communication devices to stalk another person. Some stalkers pursue minors through online chat rooms while others harass their victims electronically. Cyber bullying inflicts and compounds the harm of traditional bullying but does so through the medium of electronic text. I) Implanting disruptive computer programs The most typical use of cyberspace for destructive purposes involves implanting disruptive programs such as viruses, worms, trojan horses, logic bombs, and spam. • A computer virus is a type of malicious software program that disrupts or destroys existing programs and networks. • A worm is similar to a virus, but uses the infected computer or network to self- replicate by automatically sending itself to other users – usually through email. • Trojan horses are software programs that look harmless, and often useful, but contain malicious code that can damage the computer system. • A logic bomb is a program that is secretly attached to the system. It monitors the system, and after a certain input or action, or sometimes on a specific date, a malicious action is triggered. In some cases, a simple message is printed to the screen, while in other cases, data is destroyed or corrupted. • Website defacement occurs when a cyber vandal inserts or substitutes code on someone else’s website, thus exposing the website visitors to misleading or provocative information. Nearly all website defacements are intended to vandalize rather than to obtain profit. II) Cyber stalking Cyber stalking refers to the repeated use of the Internet, e-mail, or related electronic communication devices to annoy, alarm, or threaten a specific individual or group of individuals. This sometimes includes harassment of the victim’s friends, family, and employers in an effort to further embarrass and isolate the victim. The stalker typically uses chat rooms, email, and social media to develop an online relationship with the victim. Others may send threatening messages to the victim, or convince others to harass them. In a 2009 study, “Stalking Victimization in the United States”, it was found that 3.4 million people in the U.S. over the age of 18 experienced stalking. The highest rate was among the youngest age group, 18-24. This suggests that if younger persons were included in the survey, the numbers would be considerably higher. Of those stalking victims, 25% reported that the stalking occurred through technology such as email, instant messaging, and websites. A 2003 study of data collected by the New York City Police Department’s Computer Investigation and Technology Unit (CITU) reported that cyber stalking was the most reported of all cyber crimes – nearly 50% of all cyber crimes involved aggravated harassment by means of a computer. Cyber stalking continues to be a difficult crime to solve. The study found that approximately 50 percent of the cases were closed after finding enough evidence to substantiate the victim’s claim, but without positively identifying the offender after following all investigative leads. III) Cyber bullying Cyber bullying involves the repeated use of the internet, mobile phones, or other digital technologies to inflict intentional harm upon others . Examples of this type of bullying can include sending mean text messages, writing hurtful or threatening emails, posting negative and defamatory stories online, creating fake social networking accounts, ranking or rating using online websites, blackmailing or terrorizing someone using pictures and rejecting, isolating or excluding someone using technological tools . The dramatic increase in the use of digital media – especially among young people – has created the potential for a concurrent increase in cyber bullying.. A recent study by the Neilsen Company found that among 13-17 year old teens, 83% use their cell phones for text messaging, with a significant gap between the average monthly numbers of text messages vs. phone calls – 2,899 texts vs. 191 phone calls. Likewise, the use of text messages has shown a dramatic increase, with average monthly usage growing from 435 texts in 2007 to 2,899 in 2011. Similar increases have been seen in the usage of social media sites. Utilizing social media tools such as Twitter, Instagram, or Facebook has been found to be the most popular activity among 8-18 year olds . A recent study found that on a typical day, 40% of teens are reported to go on a social networking site and those that do will spend an average of 54 minutes on the site. Given this dramatic shift in teen technology usage it comes as no surprise that there has been a rise in incidents of cyber bullying. Cyber bullying affords anonymity and pseudonymity to bullies. The internet can provide a way for bullies to set-up accounts with false identities, use pseudonyms in chatrooms, leave anonymous comments on blogs and similarly phone numbers can be blocked to send anonymous text messages and make prank calls. This sense of anonymity may embolden bullies; making them exchange more hurtful and malicious comments than they may have been able to face-to-face. According to the “School Crime Supplement” to the National Crime Victimization Survey, about 28 percent of children ages 12–18 report having been bullied at school, and 6 percent report having been victims of cyber bullying, with a slightly higher percentage for females than males. A 2006 HarrisInteractive email survey found higher rates of cyber bullying, reporting that about 47% of teens report having been cyberbullied in the past year. A similar figure was found in a 2009 MTV/Associated Press poll. Cyber terrorism Cyber terrorism can be viewed as an effort by covert forces to disrupt the intersection where the virtual electronic reality of computers meets with the physical world. It involves a premeditated, politically motivated attack against information, computer systems, computer programs, and data. Infrastructure at risk of cyber terrorism includes oil refineries and nuclear power plants. Because of advancements in technology, cyber terrorists can commit their acts from anywhere in the world, and with little or no cost. The financial sector is often the target of cyber terrorism. As ever-increasing numbers of financial transactions occur over computer systems – both among multi-billion dollar corporations as well as average individuals – a nation’s economy is particularly attractive target. One survey found that financial firms received an average of over 1,000 attacks per company. Some experts question the existence of cyber terrorism, claiming that not a single case of cyber terrorism has yet been recorded, that cyber vandals and hackers are regularly mistaken for terrorists, and that cyber defenses are more robust than is commonly supposed. They argue that the greatest use of technology by terrorist groups is for organizational and administrative purposes. However, even many of these skeptics recognize that the potential threat is severe, and steps must be taken to address it.