Criminal Justice Reform in Washington State and the "Dunning-Kruger" Effect

By Paul A. Pastor, Ph.D. Yale University

Retired Sheriff of Pierce County Washington (2000-2020)

The ability to anticipate the consequences of actions is universally recognized as an indicator of skill and personal competence. All of us would like to think that we are intelligent and insightful. But over-confidence and lack of familiarity / experience can result in unanticipated and undesirable outcomes.

We have recently seen legislation, policy decisions and court rulings aimed at criminal justice reform which miss the relationship between actions and their predictable and harmful consequences.

This is a variant of the “Dunning-Kruger Effect” where 1. extreme self-confidence plus 2. an unacknowledged level of ignorance and 3. well-meaning motives can have damaging unintended consequences. Examples include:

The BLAKE CASE:

Washington State v. Blake was an example of the triumph of judicial activism, ignorance and failure to think things through. The case resulted in the virtual decriminalization of possession of small amounts of dangerous drugs. This served to block Criminal Justice intervention with addicted persons; intervention which can often open access to medical detoxification and continuing treatment through drug courts and other avenues. The result ? Addicted people now have freer access to increasingly dangerous drugs like fentanyl and other opioids resulting in more addicted individuals dying from overdoses, (albeit uninterrupted by police or criminal justice system members) in record numbers.

JUVENILE ACCOUNTABILITY:

A desire to avoid holding juveniles in custody is often an attempt to avoid tainting their future. The motivation is well-meaning. The result too often facilitates additional and escalating involvement in crime. Juveniles continue avoiding consequences until they accumulate multiple serious offenses. They are excused until their conduct becomes inexcusable resulting in a life-long label.

Another consequence is the escalation of serious violence by young people against other young people - - - a horrible heartbreak for the families of both victims and offenders.

REPEAT OFFENDERS:

Several superior, district and municipal courts and a few prosecutors seem to treat repeat offenders as “perpetual first offenders” (term coined by William Bratton). Arrest and criminal justice processing for these people becomes an empty exercise. Early release is the watchword. Jail doors resemble revolving doors. We hear more news stories of offenses by those with “long criminal records.” Public disrespect for the criminal justice system grows and police officers are expected to find and arrest the same people for the same crimes over and over again.

POLICE TACTICS:

Recent Washington State Legislative reforms sought to limit police pursuits at a time when agencies themselves were actively narrowing the number of “pursuable” offenses. And, yes, more tightening should be done. But, the result of the adopted legislation has meant that burglaries, major thefts and even some assaults are committed which now have a potential “get away free” card attached especially if a stolen vehicle is used in the crime. Offenders become bolder and offenses increase.

HOMELESSNESS, ADDICTION AND OFFENSES BY THE MENTALLY ILL:

We enable crime, disorder and community fear by tolerating and enabling people to harm others, degrade the sense of community security and commit-slow motion suicide on the streets. We manage to both stretch the boundaries of what we tolerate and fail to provide funding for prevention, treatment, and assistance thus allowing people to engage simultaneously in self destruction and community destruction.

CONCLUSION:

Yes, we need reform. But we need more than reform. We need thoughtful reform; reform which considers unanticipated second and third order effects. Ignorance in crafting the law should not be an excuse for ill-considered, counter-productive policies. Our criminal justice system must function effectively as well as equitably.