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.

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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