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Who Are the Recidivists?

Revenge is a kind of wild justice, which the more man's nature runs to, the more ought law to weed it out. - Francis Bacon, de Augmentis Scientiarum bk. II Fortitudo

This week's surprise is not one you might have expected. It pertains to recidivism. If you listened to Senators and Congresspersons talk about the perils of releasing prisoners from Guantanamo because they will only return to attack us once again, you'd assume that recidivism among those released from Guantanamo would be close to 100%. That would not be surprising since many of the released GITMO prisoners had, among other things, been tortured and held there for years without charges being filed. One of the understandable side effects of such treatment could be a wish to exact revenge on one's former captors. Indeed, the dangers of recidivism among this group was neatly captured by Representative Pete Hoekstra of Michigan who, upon learning during the Christmas holidays that the administration was sending two GITMO detainees overseas, (an announcement that was made two days after 12 other detainees had been sent to Afghanistan, Yemen and Somaliland) said: "We continue to send people back to countries that have weak central governments and ungoverned areas. It baffles the brain. In light of recent events, both the attempted bombing [Christmas Day] and the link to a former detainee from Gitmo who then became an al-Qaeda leader in Yemen. . . there should be a whole lot of red flags about transferring any more detainees out right now. Are they going to a country that produced any of these recidivists?"

His concern was echoed by Sen. Jeff Sessions of Alabama, the ranking Republican member of the Judiciary Committee who said: "We are deeply concerned about pending transfers [of detainees] on the heels of the Christmas Day bombing and news reports suggesting that even more released GITMO detainees have returned to militant activities than previously thought. All transfers should be put on hold until there has been a chance to analyze emerging numbers about the threat of recidivism, and to begin patching the cracks in the system laid bare by the Christmas Day bomb plot."

Here is the surprise. According to the most recent Pentagon report, the recidivism rate among released GITMO detainees has gone up from 14% in the spring of 2009 to 20%. Four out of 5 of the former detainees have returned to a pacific way of life not involving hostility towards their former captors. Here is another surprise. It's the recidivism rate among people released from U.S. prisons.


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Every person incarcerated in a United States prison knows why he or she is there and, subject to early release for good behavior (and with the exception of certain sex offenders) knows exactly how long he or she can expect to stay there. Not one prisoner anywhere in the United States was subjected to torture in order to assist the government in establishing why the prisoner should be in prison rather than out on the streets. Every prisoner in the United States has a right to have a court consider every aspect of the proceedings that ended up with the prisoner's incarceration. Notwithstanding the treatment accorded domestic criminals, they show little gratitude for the treatement they receive in the American criminal justice system.

According to the 2006 report of the Commission on Safety and Abuse, within 3 years of being released, 67% of the former prisoners will once again be arrested and 52% will be re-incarcerated. The rate of recidivism for our homegrown criminals is more than three times as high as it is for the foreign nationals at GITMO, not all of whom have even committed any crimes. The Report does not suggest, as some elected officials have with respect to GITMO detainees, that because they might be dangerous if released they should be incarcerated forever. (The four policemen in Lakeland, Washington who were murdered by the apparent recidivist Maurice Clemmons, would probably not have favored indefinite detention for violent offenders but would have wished that a convicted felon from Arkansas charged with child rape and assault in Washington, would not have been out walking the streets while awaiting trial.)

Reflecting on the United States statistics one is tempted to apply Mr. Hoekstra's question about release of folk from GITMO to the release of folk from the U.S. prison system: "Are they going to a country that produced any of these recidivists?" The answer being in the affirmative one is tempted to ask Mr. Hoekstra whether he and others who favor indefinite detention for certain GITMO detainees would favor indefinite detention for domestic criminals, and, if not, why not, and if so, which ones would qualify for indefinite detention. That might also provide guidelines for deciding which GITMO detainees qualify for indefinite detention. With the development of such guidelines we could take comfort in the fact that something good has come out of Guantanamo.

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Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at For political commentary see his web page at

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