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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

July 30, 2010

Incarceration Rates

The latest issue of the Economist had an article on the high rate of incarceration in the United States. Rough Justice According to data collected by Kings College London’s International Center for Prison Studies, the United States has the highest prison population in the World, 756 prisoners per 100,000 people in the country.[i] This compares with 153 per 100,000 for England, 89 per 100,000 for Germany, 96 per 100,000 for France, 116 per 100,000 for Canada.

From a state perspective, Wisconsin has about 23,380 people in prison for an incarceration rate of 374 per 100,000. (These data do not include incarceration in jail, while the Kings College data did.) Wisconsin spends over $1.2 billion on its Department of Corrections. Minnesota has 9,406 people in prison for an incarceration rate of 179 per 100,000. Minnesota spends $521 million dollars on its Department of Corrections.[ii]

How do the crime rates compare. In 2007, the latest statistics I could find, Wisconsin had a violent crime rate of 291 per 100,000 while Minnesota had a violent crime rate of 289 per 100,000. Wisconsin had a property crime rate of 2,838 per 100,000 and Minnesota had a property crime rate of 3,037.[iii]

From an economist’s perspective, a taxpayer in Wisconsin has to pay a much greater part of their income on incarceration than Minnesota to obtain similar crime rates. What is going on here? Why does Wisconsin need to incarcerate a considerably greater proportion of our population than Minnesota? My wife is from Minnesota and she tells me it is because all the people from Minnesota are above average and that they are kinder to their elderly, especially elderly quarterbacks. I believe that the reasons are more complicated than that.

Do these crime rates and incarceration rates tell us something about the health of our society? The moral fiber of our citizens? The appropriate use of prison in our society? I don’t know the answers to these questions, but I do have those questions.

[i] Walmsley, Roy, (2009) World Prison Population List (eight edition), International Centre for Prison Studies, King’s College London-School of Law.

[ii] West, Heather C., 2010, Prison Inmates at Mid-Year 2009 Statistical Table, Bureau of Justice Statistics, USDOJ

[iii] Federal Bureau of Investigation, “Crime in the United States” USDOJ

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

July 26, 2010

Most Research Findings Are False

The history of technological change shows that the scientific method has been extremely powerful at developing new knowledge. However, we all hear of the studies where it is announced that eating “Item A” greatly reduces your risk for getting a disease, and then several months later, another study says that eating “Item A” actually increases your risk for getting the same disease, and then several years later, researchers say “Never mind”, “Item A” doesn’t appear to do anything to your risk of getting this disease. Scientific studies can often be inaccurate.

I recently read three articles by Dr. John P.A. Ioannidis, a mathematical medical researcher at Tufts University School of Medicine in Boston and the University of Ioannina School of Medicine in Greece. Dr. Ioannidis shows mathematically that most published research findings are false.[i] He arrives at several corollaries to evaluate a research study. Although he is discussing medical studies, all of these corollaries apply with equal force to empirical legal studies.

Small studies are less likely to be true than large studies. The smaller the effect of a treatment, the less likely the research is true. The greater the number and the lesser the selection of tested relationships the less likely any finding is true. The greater the flexibility of the research design the less likely the research is true. The greater financial interests, prejudices, and the hotter the scientific field, the less likely the research is true.[ii]

Dr. Ioannidis, in another research paper, evaluated all original research studies in 3 major clinical journals (which should contain the better designed studies). He found that 32% of the original research was either refuted or had effects that ultimately were shown to be less strong than the original research findings. Five out of six non-randomized highly cited original studies were either refuted or had weaker effects than the original research.[iii]

Finally, in an essay, Dr. Ioannidis discussed the challenges of translating bio-medical research findings into something useful for practitioners.[iv] His main concern is the truth of many of the research findings, and why much research fails to be upheld by subsequent research. He recommends a greater focus on identifying research topics, diminishing bias, and enhancing the power of the studies. [v]

Dr. Ioannidis states “Translating non-credible, non-replicated research findings may have bleak consequences. We already have several useless prognostic and diagnostic tests, ineffective and possibly harmful therapies, and redundant sub-specialties sustained by unsubstantiated optimism on their benefits. We should not add more junk to this pile.”[vi]

Although, I am a proponent of using science in the law, I believe that many of the empirical research studies in law are very likely junk. Much of the purported “research” isn’t research at all and can clearly be shown to be junk. Other research that shows statistical differences may not be as easily critiqued, and will only be refuted by further study.

I am concerned that we legal practitioners not be deluded by the current fad of proponents of a particular approach labeling something “evidenced-based” as an imprimatur of legitimacy. The evidence might be flimsy, misleading, or outright fraudulent. As we often have peoples’ lives in our hands, we must be careful and assure ourselves that we are as accurate as possible. I am forever the hopeful skeptic.

[i] Ioannidis, JPA (2005) “Why most published research findings are false. PLoS Med (2)(8)e124.

[ii] Ibid.

[iii] Ioannidis, JPA (2005) “Contradicted and Initially Stronger Effects in Highly Cited Clinical Research” JAMA, Vol. 294 (2) pp. 218-228.

[iv] Ioannidis, JPA (2006) “Evolution and Translation of Research Findings: From Bench to Where” PLOS Clin Trial 1(7): e36.

[v] Ibid p. 5

[vi] Ibid p. 8.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

July 22, 2010

Failure Can Be Your Friend

I am not a real big fan of failure. I prefer to succeed. I admit that I always thought there was at least a thread of truth in Coach Lombardi’s quote of “Show me a good loser and I will show you a loser.” However, I have learned that much more can be learned from a failure than from a success, and I admit that failure interests me.

I was reminded of the value of failure by a recent article in the NY Times. See Taking Lessons From What Went Wrong. When I was a district attorney, I thought it was important after a trial loss to have what the military calls an “after action review”. At that review, the main investigators, other prosecutors and I discussed the case, and attempted to indentify where things went wrong, and what needed to be improved. What in the investigation of the crime should have been different? What in the presentation of the case should have been different? I found such reviews to be helpful, and I believe through them we improved our performances. Sometimes we found we did as best we could and we just saw the case differently from the jury.

When the State loses in a criminal trial, according to Blackstone, one of ten guilty persons may have gone free or one innocent person may have been relieved of undeserved suffering—our system is designed that way. From a statistical perspective, the criminal justice system is designed to accept a large amount of type II error and a small amount of type I error. Type II error is the erroneous conclusion that the null hypothesis—that the defendant is not guilty—is true, when in fact the defendant is guilty. Type I error is the erroneous conclusion that the null hypothesis—that the defendant is not guilty—is false, when in fact the defendant is innocent.

When someone is wrongly convicted, the system failed to discern the innocent from the guilty. I believe that the participants in the criminal justice system should systematically evaluate known false convictions and reverse engineer the cases to learn what went wrong with the criminal justice system, especially since the system is designed to prevent type I error. We should attempt to identify what, if anything, the participants can do to prevent a similar wrongful conviction from occurring again. I understand that the criminal justice system is human and can make errors. I also understand the desire for finality. However, I believe that the legitimacy of the justice system is bolstered, not degraded, by constructive analysis and criticism.

As a judge, I also attempt to learn from mistakes. Although I read all the cases from the Wisconsin Supreme Court (I have been busy lately with that) and the published cases from the Court of Appeals, I also make it a point to read all of the unpublished cases where the Court of Appeals has determined that the trial court erred (regardless of harmless error). I learn much more from those cases than the cases in which no error was found (unpublished no-error court app. cases don’t make my cost/benefit reading list ratio cut). I learn what to avoid—which from a practitioner’s perspective is a large part of the successful practice of law. (Didn’t we all learn in law school to identify the snake in the grass?) Although failure is never sweet, we can learn its bitterness and hopefully become wiser with the knowledge.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

July 18, 2010

Tests for Alcohol Use

Anyone involved in the criminal justice system is familiar with the use of chemical blood tests to detect the use of illegal substances. Often, the actual drug is not identified in the blood, but rather a metabolite of a particular drug is detected. The presence of that metabolite is evidence that a subject had used a particular drug within a period of time before the taking of the sample. These tests are often used in monitoring individuals on probation or those participating in a drug court.

We all are also familiar with blood, breath, and even urine tests for detecting the presence of alcohol. These tests show the presence of ethanol which indicates recent use of alcohol. The problem with these tests is that alcohol is rapidly metabolized by the body, and if the sample is not taken within hours of the consumption of alcohol, the test will be negative. The use of such devices such as the SCRAM bracelet, discussed in an earlier blog entry, can also be used to monitor alcohol consumption.

However, a recent research article discussed the use of detecting metabolites of alcohol, specifically ethyl glucuronide (EtG) and ethyl sulfate (EtS). [i] According to this article, EtG and EtS can be present in urine for almost a week after alcohol use stops. Hair testing for these metabolites is also being perfected and should be commercially available soon.

The draw-backs to the use of these metabolites are that many products used by humans contain alcohol which could result in a false positive. Research is being done to develop cutoff levels to protect against false positives. The authors of this article stress that the use of these metabolite tests must include an agreement with the subject to not use articles that contain alcohol.

Tests for EtG and EtS require sending urine samples to labs for analysis. There are no field tests. The costs for these tests range from $15 to $75. These tests may be another tool for the Department of Corrections for monitoring defendants convicted of alcohol related crimes.

[i] Skipper, Gregory E. M.D. and Robert L. Du Pont M.D. and William L. White M.A., 2008. “Testing for Recent Alcohol Use”, Employee Assistance Digest, 28(1), 15-21.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

July 15, 2010

Out-of-pocket costs of an OWI

I calculated the typical costs someone would be required to pay if convicted of operating while intoxicated first offense and second offense with a blood alcohol level of .15%. They are as follows:


fine plus costs

1st offense


2nd offense





ign. interlock install



ign. interlock rent



ign. interlock removal



ign. interlock recalibration



OWI classes/counseling



Victim Impact Panel



occupational license



drivers license reinst. fee



jail Huber fees 2 weeks


Probation fees 18 mos.





I spoke my insurance agent, and was informed that an OWI 1st conviction would raise premiums somewhere around $2,000 total over a five year period. A second offense during that time could easily result in an additional $4,000 in insurance costs over a similar time period.
The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

July 12, 2010

Victim Impact Panel Research Equivocal

Several counties in Wisconsin, including my home county, Dodge, use a victim impact panel (VIP) to attempt to reduce OWI recidivism. I am aware of four studies of VIPs. The results of these studies on reducing OWI recidivism are equivocal.

At a VIP, victims of OWI homicides or injuries, recount their losses to a group of OWI offenders. The theoretical framework for VIPs is derived from concepts of inclusionary social control and re-integrative shaming coming from the restorative justice approach to controlling criminal behavior. The argument is that eliciting shame in OWI offenders from listening to victims of OWI may induce them to not engage in anti-social behavior such as operating while intoxicated.[i]

One randomized study in New Mexico showed no effect on OWI recidivism after two years.[ii] Another more recent randomized study on first-time OWI offenders, in a different county in New Mexico found no significant differences in either OWI recidivism after two years or alcohol consumption after two years between individuals who attended a victim impact panel and those who did not attend such a panel.[iii]

A nonrandomized study (individuals were not randomly selected for the VIP treatment) done again in New Mexico, showed no effect on OWI recidivism for first-time male and female and repeat male OWI offenders. The study did show that a VIP actually doubled the probability of re-arrest for female repeat offenders.[iv]

A different view of VIPs comes from another nonrandomized study in Georgia. The VIP studied involved a 60 to 90 minute program consisting of four or five victims of drunk driving discussing how drunk driving had impacted their lives. The program allowed a maximum 75 participants. This study showed that a VIP had a significant impact in reducing recidivism. After five years, those attending a VIP had OWI recidivism rate of 15.8% and a comparison group who had not attended a VIP had a 33.5% OWI recidivism rate. Almost all of this reduction occurred in the first two years, with any VIP effect on recidivism waning dramatically after two years. [v]

The research relating to VIPs is not clear. Further, future research is needed to understand content and structure of a VIP. The theoretical underpinning of a VIP suggest that a more intimate smaller group would have a greater emotional impact than a large VIP held in an auditorium setting. Further, the quality and number of the presentations made by victims may make a difference on a VIP’s impact.

As a district attorney and judge, I have attended several VIPs and I also have these concerns. The first VIP I attended was with a smaller group, and I believed the intimacy of the smaller group had a much greater emotional impact on me than the larger group(s) I attended. Had I become habituated to listening to the impact of the victims after the first time? Does this mean that repeat offenders may not be the ideal group for a VIP?

In the larger groups, I was concerned about the normalizing effect on OWI offenders from seeing so many people who had been convicted of drunk driving. Did these offenders believe that this behavior was normal behavior after seeing so many people who had been convicted of a similar offense as they had?

Further, offenders were publicly identified by raising hands as to how many were first offenders, second offenders, and so on. I was again concerned about the impact that identification had on offenders. Did those convicted of OWI 1st think, “My behavior was not nearly as bad as those repeat offenders”?

The effectiveness of a VIP has not yet been proven with any confidence.

[i] Braithwaite, John, 1989, Crime Shame, and Reintegration. Cambridge, Cambridge University Press.

[ii] Polacsek, Michele, Everett M. Rogers, W. Gill Woodall, Harold Delaney, Denise Wheeler, Nagesh Rao, 2001, “MADD Victim Impact Panels and Stages of Change in Drunk Driving Prevention”, J. Stud. Alcohol 62 (3), 344-350.

[iii] Wheeler, Denise R., Everett M. Rogers, J. Scott Tonigan, W. Gill Woodall, 2004, “Effectiveness of customized Victim Impact Panels on first-time DWI offender inmates”, Accident Analysis and Prevention, 36, 29-35.

[iv] C’de Baca, Janet, Sandra Lapham, Susan Paine, and Betty Skipper, 2000, “Victim Impact Panels: Who is sentenced to attend? Does attendance affect recidivism of first-time DWI offenders?”, Alcoholism: Clinicial and Experimental Research 24: 1420-1426

[v] Rojeck, Dean G., James E. Coverdill, Stuart W. Flors, 2003, “The Effect of Victim Impact Panels on DUI Re-arrest Rates: A Five-Year Follow-up”, Criminology, (41) 4, 1319-1340

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

July 9, 2010

Alcohol Monitoring Devices

A study evaluated the effect of the use of a SCRAM alcohol monitoring device on reducing recidivism for driving while intoxicated offenders.[i] The SCRAM ankle bracelet detects alcohol from samples of sweat collected in the air above the skin around the ankle bracelet and either stores or transmits the data. The SCRAM device is designed to thwart tampering.

On the average, offenders wore the SCRAM device for 70 days. Only 4 out of 114 SCRAM wearers were arrested for another criminal offense while wearing the device.

The researchers found that for every one year increase in age, there was an approximate 3% reduction in the probability of recidivism. They also found that for every additional prior OWI, there was an approximate 11% increase in the probability of recidivism.

The researchers also found offenders that wore the SCRAM device less than 90 days had no long-term reduction in recidivism rates compared to those who didn’t wear it (the comparison group). However, if offenders wore the SCRAM device for at least 90 days the overall recidivism rate was about one half the rate of the comparison group.

This result comports with research that suggests that 90 days of drug treatment may be the minimum length of treatment to detect any treatment effect.[ii]

The researchers warn that these are preliminary results that need to be replicated by others. However, at this time it appears that the use of a continuous alcohol monitoring device such as a SCRAM bracelet may be an economical method to reduce recidivism in OWI offenders.

[i]Flango, Victor E. and Fred L. Cheeseman, (2009). “Effectiveness of the SCRAM Alcohol Monitoring Device: A Preliminary Test”, Drug Court Review, Vol. VI, 2. p. 109-133.

[ii] Marlowe, D., D. DeMatteo and D. Festinger (2003). “ A sober assessment of drug courts.” Federal Sentencing Reporter. 16, 153-157

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

July 6, 2010

Research Mixed on Efficacy of DWI Courts

Driving while intoxicated (DWI) courts have been modeled after drug courts. These treatment courts use on-going court review hearings coupled with intensive alcohol and drug treatment and random or continuous testing for the use of drugs and alcohol. Participants in these DWI courts receive negative reinforcements such as additional jail for program violations, and positive reinforcements for program achievements.

A recently published systematic literature review of 41 published and unpublished evaluations of DWI courts attempted to evaluate the effectiveness of DWI courts on reducing recidivism.[i] The researchers reviewed the methodology of these evaluations, and eliminated all but 14 for further review because of methodological limitations with the evaluations. Of the remaining fourteen, merely five of the evaluations satisfied at least 65% of these researchers’ recommended criteria for evaluating a DWI court’s effectiveness.

The authors of this literature review concluded, “Although the results hint at emerging evidence potentially favoring the effects of DWI Courts, conclusions are seriously hampered by the disappointing state of the research in this area.” [ii] These studies were unable to answer some significant questions. What component of the DWI court was the operant variable that may be impacting the recidivism rate? Was it the more comprehensive AODA treatment provided? Was it the intensive supervision and monitoring? Was it the additional required court review hearings? For which group of offenders is a DWI court effective? These questions remain unanswered, and can only be answered by additional research.

Some research has shown that drug courts may be effective. However, a major difference between alcohol abuse and drug abuse is that the use of drugs is illegal or highly regulated, whereas the use of alcohol is legal for adults, and only becomes illegal when coupled with driving. That factor complicates AODA treatment.

A 2010 study of two hybrid alcohol and drug courts in two, unnamed, upper mid-west cities compared DWI offenders who were sentenced to prison and then paroled, with DWI offenders who were enrolled in a hybrid alcohol and drug court. The researchers reported no statistical difference for re-arrest for a new DWI offense between those who completed the alcohol and drug court program and those who completed prison and then parole. (There was some evidence of a reduction for arrests for other crimes for alcohol court participants, but it did not reach statistical significance.) However, the hybrid court reduced recidivism for non-DWI offenders.

The researchers concluded “Specifically, this study determined that completion of a hybrid drug court program did not benefit the subsample of chronic DUI offenders compared to similar DUI offenders who completed prison terms followed by parole supervision (even when weighting procedures were employed to counter the effect of small sample size).”[iii]

At this point there is some research which supports the efficacy of DWI courts for reducing recidivism. DWI courts are resource intensive in terms of treatment, supervision, and court time. Further research is needed to discover whether or not each of these additional resources reduce recidivism and provide a return on investment in terms of community safety. At this time, the research is unclear on the question of DWI courts’ effectiveness.

[i] Marlowe, Douglas B., David S. Festinger, Patricia Arabia, Jason R. Croft, Nicholas S. Patapis, and Karen Dugosh, (2009), “A Systematic Review of DWI Court Program Evaluations”, Drug Court Review, Vol. VI, 2.

[ii] Ibid. p. 32

[iii] Bouffard, Jeffrey A., Katie A. Richardson, Travis Franklin, (2010) “Drug courts for DWI offenders? The effectiveness of two hybrid drug courts on DWI offenders, Journal of Criminal Justice, 38, pp.25-33

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

July 2, 2010

A Clash of Knowledge Cultures

The National Institute of Corrections (NIC) has been working on a project called “The Evidence-based Decision Making in Local Criminal Justice System Initiative”. Chief Justice Abrahamson, of the Wisconsin Supreme Court, is a member of the advisory board. NIC has recently solicited applications from cities and counties to become possible study sites for implementation of its framework that uses evidenced-based practices throughout the criminal justice system.

The goal of this project is to reduce criminal recidivism, and therefore reduce the number of people victimized by crime. The initiative borrows a model from the medical community that used evidence-based medical practices to successfully reduce deaths in medical patients called the “100,000 Lives Campaign”.

The framework can be accessed at: A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems

Appendix Three to this document is a matrix of research findings about what works and doesn’t work to reduce pretrial misbehavior and criminal recidivism, and is worth the look by anyone involved in the criminal justice system.

This project is an ambitious attempt to use those practices that research has shown to be effective throughout the criminal justice system. The project’s leaders appear to understand the difficulty of the endeavor, and are attempting to carefully implement the framework in selected jurisdictions.

This initiative correctly recognizes differences between the medical system and the legal system and the resulting challenges due to these differences. However, I believe the authors of the initiative have missed a fundamental and critical difference between the medical and the legal community—the difference in each community’s functional theory of knowledge. I believe most lawyers view knowledge and its acquisition much differently than most physicians.

Medical training and medical practice are essentially science-based resulting in an evidence-based theory of the acquisition and creation of knowledge. Knowledge is understood to be developed through controlled empirical studies and through systematically collecting data of the results of replicated practices. Criticism is encouraged, and helps the “sifting and winnowing” of information. Physicians are trained in and habituated to problem solving using science-based principles.

Legal training and legal practice are essentially not science-based, but rather have (and to a large degree must have) an authority-based theory of knowledge. For example, the answer to a legal question is correct, not because of some empirical research has shown it to be correct, but because four members of the Wisconsin Supreme Court have said it was correct—end of story.

Lawyers and judges are accustomed to obtaining knowledge through accepting the views of those highest in the hierarchy who have addressed the issue. For example, what did the U.S. Supreme Court have to say on the issue? When the authorities have spoken clearly on the issue, there is little further argument and criticism is strongly discouraged—at least in the adjudicative forum. Dissent is not generated by the expounding of conflicting empirical studies or rational arguments from these studies, but by expounding conflicting authorities (which embody different values) and rational arguments there from. Most lawyers are not trained in scientific design and quantitative methods and are not accustomed to obtaining knowledge through critical evaluations of empirical studies.

I believe (here I go making a statement without any empirical evidence—however I am a lawyer (I can also say I have a hypothesis)), that for many legal practitioners, using the scientific method will be foreign, unfamiliar, and at times, threatening. Science has a history of appearing threatening to authoritative pronouncements—ask Galileo. Where physicians may readily accept the conclusions of published scientific studies, lawyers, because of the knowledge culture in which they are enmeshed, may hesitate. They may remain unconvinced. This epistemological difference will challenge NIC’s implementation of its “Evidenced-based Decision Making in Local Criminal Justice System Initiative”. I wish NIC well in its endeavor.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.