Crime and punishment in America - Rough justice
America locks up too many people, some for acts that should not even be criminal.
The Economist Jul 22nd 2010

In 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America's level in Britain, a ninth in Germany and a twelfth in Japan.

Tougher than thou

Some parts of America have long taken a tough, frontier attitude to justice. That tendency sharpened around four decades ago as rising crime became an emotive political issue and voters took to backing politicians who promised to stamp on it. This created a ratchet effect: lawmakers who wish to sound tough must propose laws tougher than the ones that the last chap who wanted to sound tough proposed. When the crime rate falls, tough sentences are hailed as the cause, even when demography or other factors may matter more; when the rate rises tough sentences are demanded to solve the problem. As a result, America's incarceration rate has quadrupled since 1970. . .

Many states have mandatory minimum sentences, which remove judges' discretion to show mercy, even when the circumstances of a case cry out for it. "Three strikes" laws, which were at first used to put away persistently violent criminals for life, have in several states been applied to lesser offenders. The war on drugs has led to harsh sentences not just for dealing illegal drugs, but also for selling prescription drugs illegally. Peddling a handful can lead to a 15-year sentence.

Muddle plays a large role. America imprisons people for technical violations of immigration laws, environmental standards and arcane business rules. So many federal rules carry criminal penalties that experts struggle to count them. Many are incomprehensible. Few are ever repealed, though the Supreme Court recently pared back a law against depriving the public of "the intangible right of honest services", which prosecutors loved because they could use it against almost anyone. Still, they have plenty of other weapons. By counting each e-mail sent by a white-collar wrongdoer as a separate case of wire fraud, prosecutors can threaten him with a gargantuan sentence unless he confesses, or informs on his boss. The potential for injustice is obvious. *

As a result American prisons are now packed not only with thugs and rapists but also with petty thieves, small-time drug dealers and criminals who, though scary when they were young and strong, are now too grey and arthritic to pose a threat. Some 200,000 inmates are over 50—roughly as many as there were prisoners of all ages in 1970. Prison is an excellent way to keep dangerous criminals off the streets, but the more people you lock up, the less dangerous each extra prisoner is likely to be. And since prison is expensive—$50,000 per inmate per year in California—the cost of imprisoning criminals often far exceeds the benefits, in terms of crimes averted.

Less punishment, less crime

. . . Some parts of America are bucking the national trend. New York cut its incarceration rate by 15% between 1997 and 2007, while reducing violent crime by 40%. This is welcome, but deeper reforms are required.

America needs fewer and clearer laws, so that citizens do not need a law degree to stay out of jail. Acts that can be regulated should not be criminalised. Prosecutors' powers should be clipped: most white-collar suspects are not Al Capone, and should not be treated as if they were. Mandatory minimum sentencing laws should be repealed, or replaced with guidelines. The most dangerous criminals must be locked up, but states could try harder to reintegrate the softer cases into society, by encouraging them to study or work and by ending the pointlessly vindictive gesture of not letting them vote.

It seems odd that a country that rejoices in limiting the power of the state should give so many draconian powers to its government, yet for the past 40 years American lawmakers have generally regarded selling to voters the idea of locking up fewer people as political suicide. An era of budgetary constraint, however, is as good a time as any to try. Sooner or later American voters will realise that their incarceration policies are unjust and inefficient; politicians who point that out to them now may, in the end, get some credit.

* For the members of the AAPS who see their colleagues receive gargantuan fines and prison terms for every line of billing for what prosecutors feel are inappropriate ICD9 codes, this is very important to understand others that are being criminalize.

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A few years ago, a Cardiologist and Cardiac Surgeon in Redding, California recognized that the Codes for Clinical Procedures and Terminology for several items in their specialty were very remunerative. They were so remunerative that they were used frequently when there was minimal medical or surgical indication for their use. As the Pot at the End of the Rainbow was filling up, they made larger pots and filled them with more Medicare Gold patients. As in the case of most Ponzi Schemes such as Medicare, the drain is finally so great that the criminals are found out and the Vein of Gold dries up.

Doctors are basically very honest. No one with an ulterior motive could get through four years of College, four years of Medical School, and four to eight years of specialty postdoctoral training unless they were very bright and honest. If you're dishonest, there are much easier ways to wealth. But temptations are a terrible thing. Many good people fail and fall. Ponzi schemes like Medicare or any stream of money harbors crime - even among those that would otherwise never consider the possibility.

I recall a politician who ran for office with the serious intent of cleaning up the House of Corruption, reducing entitlements and eliminating "pork barreling." He was an honest, upright God-fearing pillar of the community held in high esteem. Within one year, in a bid to purchase votes, he was adding entitlements to his own bills; eventually he became a master at it. He told the community that although he had previously agreed that such expenditure of funds for personal gain was essentially theft, in the House of Corruption it was considered good for one's constituency and essential to survival and re-election for the greater good in the community of which he also was a member.

On a recent urgent trip to Kansas for my older brother's "celebration of life," I sat next to the local retired Judge, a good Democrat who reads MedicalTuesday. He told me the tale about his mild breath restriction, which caused him to seek the services of a pulmonologist. After a brief interview and cursory exam, the physician asked if he sometimes fell asleep for no apparent reason. "Of course," he did, most nights after watching TV or working at his computer too long. The pulmonologist said, "You have Obstructive Sleep Apnea and need a Polysomnogram" (sleep study). The judge, being 80 years old, declined stating he didn't think he was any worse than his friends who were also in their 80's. The pulmonologist lost interest, got up and left the room. The Judge wondered if more doctors were losing interest in patient care and were simply milking the system. This pulmonologist didn't even give the Judge a screening breathing test, which is on the order of $80 (for which Medicare pays about $40) to determine the cause of his dyspnea while vying for the sleep study at $1800 (for which Medicare pays about $800). He was more interested in Medicare Gold than patient care.

This type of practice is causing us to lose respect and status as the public increasingly believes we're in it for money from procedures. But as Medicare pays less and less for diagnostic acumen and more for costly diagnostic procedures, it's hard to swim against the current. But we must stand firm like a rock or we will slowly destroy a great profession. Even though it may have been caused by Government Medicare, it is occurring on our watch. It is up to us to correct this corruption or at least not participate in this Ponzi scheme.

To follow the importance of this, why not subscribe to the HealthPlanUSA.net Quarterly. The last three issues are free. For complete access, a token fee is requested.

In matters of principle, stand like a rock; in matters of taste, swim with the current.

-Thomas Jefferson

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