Libraries and librarians

I love libraries and librarians. I was going to write “good librarians”, but after using libraries my entire life, I can’t remember a bad experience with a librarian. (I find that statement to be quite incredulous, even to myself, understanding the bell curve of human behavior and performance in any profession.) I am almost always impressed with their helpfulness and ability to navigate the labyrinths of a library and other sources of stored knowledge.

UW-Madison Law Librarian Bonnie Schucha’s WisBlawg, http://www.law.wisc.edu/blogs/wisblawg/ has interesting information regarding Wisconsin law, including recent articles by UW-Madison law professors.

State Law Librarian Jane Colwin and her staff at the Wisconsin State Law Library are impressive. Their service to patrons rivals the best of the best, in both the public and private sector. Find them at: http://wilawlibrary.gov/ .

My love of librarians, I am sure, is primed by my nostalgia for the times I spent exploring new worlds, not available to me on the farm, in a quiet carrel among the musty stacks in the Memorial Union Library and other similar libraries. My thanks to all the librarians who have helped me over the years.

“There were nights in the library when I would look at the footnotes in some heroically constructed tome, and know that the spirit of the rigorous scholar who had written it must know its regret, for each footnote is a step onto deeper meaning, which terrifies the order of progression of the scholar’s logic, until there is no point in experience, nor any word, from which one cannot set out to explore the totality of the All, if indeed there be an All and not an expanding mystery.” Norman Mailer, The Deer Park

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.

Recidivism

Repeat drunk drivers have been the focus of legislative action on drunk driving for years, primarily by increasing penalties. Why are they the focus? Statistics from the Court system show that approximately 40% of the individuals convicted of operating while intoxicated had been convicted at least once before. That means approximately 60% had no prior contact with the justice system for an operating while intoxicated case. (The lack of contact with this 60% is one reason the Court system cannot, alone, solve any operating while intoxicated problem.)

However, the 40% statistic described above does not mean that there is a 40% recidivism rate. A recidivism rate is a calculation of the percentage of offenders convicted and treated (either through jail, counseling, etc.) that again re-offend. The literature uses many different definitions of recidivism. Because the definitions of recidivism may differ, and the populations used to calculate them will differ, recidivism rates most likely will not be comparable among different studies.

For example, a drunk driver may be considered a recidivist after he or she gets arrested again for a drunk driving, or gets convicted of drunk driving, or gets convicted of any traffic crime, or gets convicted of any crime. Therefore, the definition of the triggering event that makes one a recidivist is important.

Secondly, the time period over which the rate is calculated is important. There are one year recidivism rates, (i.e. how many offenders re-offender over a one year period), two year recidivism rates, three year recidivism rates, on up, to lifetime recidivism rates (how many people re-offend in their lifetimes). In reality, most studies will involve three year or less rates, as researchers want to evaluate programs as soon as enough data has been accumulated to make a judgment on the efficacy of the program.

About one year ago, I calculated recidivism rates on OWI’s in Dodge County. The definition is the percentage of drunk drivers that were re-arrested for another drunk driving which resulted in a conviction within one, two and three years after attending a victim-impact panel. They are as follows:

289 offenders comprised of 1^st, 2nds, 3rds, 4ths, and 5ths (that weren’t sentenced to prison)

One year – 4.15%

Two year – 9.34%

Three year – 15.57%

What should we learn from these statistics?

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.

A Challenging Task

In July, Wisconsin law relating to operating a motor vehicle while intoxicated will be changing. The legislature has responded to calls to reduce the property damage, injuries, and deaths resulting from unsafe driving by individuals who are intoxicated. I will use the next several entries discussing this issue.

Researchers have estimated that legally intoxicated drivers are fifteen times more likely than non-drinking drivers to cause a fatal crash. Individuals with alcohol in their system are eight times more likely than drivers without alcohol in their system to cause a fatal crash. Levitt, Steven D., and Jack Porter, 1999, “Estimating the Effect of Alcohol on Driver Risk Using Only Fatal Accident Statistics”, National Bureau of Economic Research, Inc., NBR Working Paper, No. 6944. http://ideas.repec.org/p/nbr/nberwo/6944.html The legislative changes are an attempt to reduce the risk of citizens being injured or killed by an intoxicated driver.

The task of reducing intoxicated drivers is a difficult one. First, the problem involves changing individual habits related to the use of intoxicants and driving. As anyone knows, changing anyone’s behavior, including our own, is very difficult. Further, in Wisconsin, drinking alcohol is part of the warp and woof of our culture. Cultural change is also difficult.

But secondly, the implementation of government policies related to operating while intoxicated is also difficult. The effectiveness of government policy is often largely dependent on the effectiveness of its implementation. (See. Eggers, William D. and John O’Leary, If We Can Put a Man on the Moon… Getting Big Things Done in Government, Harvard Business Press, 2009. )

The implementers of operating while intoxicated reduction policies are not only in different agencies within different levels of the same branch of government, but are in different branches of government altogether. The detection of drunk drivers is the responsibility of police agencies that are part of state, county, city, or town government. The prosecution of non-criminal cases (most operating while intoxicated first offenses), is the responsibility of individual local prosecutors that again are part of state, county, city, or town government. The prosecution of criminal operating while intoxicated cases is the responsibility of individual local district attorney offices that are part of state and county government. Public and private attorneys represent and counsel the defendants.

The adjudication of these cases, including imposing sentences, is the responsibility of individual municipal and circuit court judges in the judicial branch. Any prison or probationary sentence will then involve correctional staff and probation agents with the Wisconsin Department of Corrections. Any jail sentence will involve the policies of the local sheriff’s department. Any required counseling involves private and public agencies and counselors. The Wisconsin Department of Transportation is involved with any license revocation, and issuing of occupational licenses. Private companies will be providing ignition interlock devices.

For this system to be effective, i.e. reduce the likelihood of a re-offense, every individual actor within each level must know what he or she should do and how to do it. Each individual actor must understand his or her role in the system, and not, as Eggers and O’Leary warn, operate within their own “silos” without coordination with the other actors.

The Wisconsin legislature has provided the judiciary with additional tools to attempt to address the problem. Two of these tools have a focus on treatment. Courts will now be allowed to sentence defendants to a probationary sentence on second and third offenses—sentences that are not available now. Further, counties will be able to opt into reduced jail sentences conditioned on successful completion of probation and treatment.

Probation and treatment will cost taxpayer money. Success is in no way a foregone conclusion. None of the actors alone will be responsible for any success or failure. The problem is too big and the system too large. Success will only be possible if participants understand the entire system and then intelligently execute their integrated part.

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.

Why Should We Care

Why should anyone in law care about using science and research-based practices in the law? Because this approach has been proven to be an effective tool in discovering how things work and why things don’t work. The increase in our life expectancy and our economic standard of living are all direct fruits of science and research.

Here are some reasons we should care about using science and research-based practice in the law:

1. 1. The citizens of the State of Wisconsin spend billions of dollars each year in Wisconsin on such things as incarceration and probation (over $1.1 billion for the Department of Corrections alone), juvenile justice, child protective services, other court ordered counseling and programs, and have been for years. We only recently have started to look at what we are doing with a critical eye, trying to ascertain if these practices are working or not, and if they are working, why they work. In an era of considerable budget deficits and a threatening national debt, we owe our society and future generations nothing less than the best we can give them.

2. We must ensure that our criminal justice system is accurate at sorting the guilty from the innocent. We should not accept, in a system designed from the start to allow ten guilty people to escape so one innocent person won’t suffer, convictions of innocent people. On the other hand, we should be making sure that we are able to detect and convict those who actually perpetrate crime. The conviction of an innocent person is a system failure, pure plain and simple. Let’s study these failures, learn from them, and improve our criminal justice system. The use of science and the scientific method is the only way we will make progress in this area.

3. We need to be concerned about the costs of the justice system—because of concerns for taxpayers and citizens who need to access the justice system. What can we, as practitioners, do to make the system more efficient without losing accuracy and legitimacy? Management systems that understand human behavior and appropriate technology will be keys in this endeavor.

I am, in no way, a Pollyanna as it relates to science. I see what’s happening in the Gulf of Mexico, and I understand the dark side of science. However, in human history, there has not been an engine of discovery and transformation as powerful as science. We are remiss to not use it as fully as possible in the law.

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.

Peer Review

Some of the fondest memories I have of graduate school were of the times that I spent with my fellow graduate students in our cramped office, bantering back and forth as we critiqued one another’s ideas, at times someone standing to write an equation or outline a train of thought on a blackboard. We were instilled with the idea that scientific inquiry mandated a responsibility to point out faulty thinking to our peers, and to accept our peers pointing out our faulty thinking. The criticisms required thoughtful responses, not ad hominem arguments, nor merely standing on dogmatic platitudes, and certainly not sitting quietly and not participating. Ultimately, I believe this attitude best reflects what “peer review” is all about.

One of the criteria for being an “evidence-based” practice is that the research had been “peer-reviewed”. “Peer-reviewed” means that the research has been reviewed by individuals not associated with the research but with expertise in the research topic area, usually before the research is published. The purpose of peer-review of research is to catch mistakes made in the research protocol, or the conclusions drawn from the research. Peer review provides another perspective on the research and the conclusions drawn from the research.

We have appellate review in the court system. A miniscule percentage of my decisions are ever reviewed by an appellate court. (Hopefully, mostly because the litigants thought the decisions were correct, but I am sure the cost of appealing a decision discourages much appellate review.) A small percentage of appellate cases are ever reviewed by the Wisconsin Supreme Court. And even if one of my decisions is reviewed by an appellate court, the scope of the review is often limited. Many of my decisions, as a trial court judge, are reviewed under the erroneous exercise of discretion standard. As the appellate courts point out, they may not have made the decision that was made, but it was within the realm of reason.

Because so few of my decisions are ever reviewed through appellate review, I rely on counsel for the parties for peer review. I rely upon the adversary system to help me make the correct decisions. At times a lawyer, during argument, and after I interjected a hypothetical assertion will say, “Your honor, with all due respect and with no offense intended, I think you might be wrong.”

I tell them “You will never offend me by telling me I am wrong. That’s your job. I want to hear why you think I am wrong. Maybe I am wrong. Educate me.” I then listen to the other side. I enjoy when the light comes on and I can more clearly see the issue in front of me.(Of course, ultimately I issue the decision and inform the parties which side I believe was right and wrong and why.)

Ultimately, I believe the power of peer-review lies with the appreciation of the responsibility of constructive criticism, and the appreciation of being responsibly criticized. The criticism helps identify cognitive errors that are part of the human psychology and that often lead to erroneous decisions. I believe anything we can do to ensure the best decisions possible, strengthens the legal system.

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.

Research-based Law

I stated in my last entry that I believed that “evidence-based” law practices as defined as practices that have been shown to be effective through appropriately designed, peer-reviewed scientific statistical analysis would be difficult to obtain in the law. I believed that the law should strive toward becoming “research-based” rather than “evidence-based”. (The two terms are often interchanged in the literature in different fields.)

I define “research-based practice” as a practice developed by using empirical research of a more basic nature, that are components of a larger, or a different but similar, phenomenon being studied. For example, we read research on the efficacy of alcohol treatment on reducing alcohol abuse in individuals not convicted of operating while intoxicated. We then use that research to develop a practice to apply to a population of individuals convicted of operating while intoxicated in an attempt to reduce drunk driving. Although the targeted populations and objectives are different, we infer through this research that the newly designed practice may work in this circumstance also.

“Research-based” practices allow using basic research in areas such as psychology, behavioral economics, sociology, anthropology, and physiology—research often performed in controlled laboratory settings using rats or college freshmen as study subjects; and applying that basic research to legal issues involving human behavior. (Don’t all legal issues involve human behavior?) “Research-based” allows for more creativity, and combines the knowledge of science with the expertise of the practitioner in an attempt to be the most effective practitioner possible.

Further, I reach the conclusion that we as practitioners should be “research-based” rather than the more rigorous “evidence-based” for essentially the same reason my fifth grade nun advised me that I would be better off aiming for purgatory rather than heaven—there would be at least a chance for success.

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.

Evidence-based vs. research-based

Promoting a practice as “evidence-based” is currently the vogue among judges and social workers. I believe that is a good thing. However, authentic evidence-based practices in the law are few and far between.

For a practice to be “evidence-based” it must meet the following conditions: 1.) The practice has been evaluated using an experimental or quasi-experimental design. 2.) The practice, through the use of statistical analysis, has been shown to be effective against the dependent variable it was designed to combat, for example recidivism. 3.) The results have been peer-reviewed by others with expertise in such research. (Cooney et al 2007, see previous post and link. They also include an endorsement by an organization, which I wouldn’t include.) Satisfying these three conditions is not easy.

First, the type of work we do as judges is not easily configured to meet experimental design. One of the principal factors in this design is minimizing change in everything but the factor being studied, called the independent variable. As anyone involved in the law knows, no two cases are alike regardless of their apparent similarities. Further, we cannot easily randomize our treatments. For example, would it be ethical (or legal) to randomly sentence one criminal defendant to probation and into a treatment program, while denying another similarly situated defendant the same treatment, and sentencing that defendant to prison because you the judge were following an experimental design to determine the efficacy of the treatment? I don’t think so.

Those scientific design problems could be somewhat overcome through statistical methods that aggregate data or through the use of historical data (quasi-experimental design). Herein lies the next problem. The sample sizes we have available for such studies are often too small for statistical methods to detect anything but huge effects. Many double blind, randomized drug studies will include sample sizes involving tens of thousands of individuals. (A double blind study is one in which neither the person receiving the treatment or giving the treatment know what the treatment is—clearly a condition that would be close to impossible to meet in legal practice.)

Legal studies would most likely not be randomized, much less double blind, and our sample sizes are most likely much smaller. The result of smaller sample size is a corresponding reduction in the ability of statistical methods to detect a statistically significant effect.

These two conditions alone make it very difficult to have many legal practices meet the criteria of being “evidence-based.” I will address the peer-review condition and why I believe us legal practitioners should be “research-based” rather than “evidenced-based” in later entries.

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.