Computer Crime

Kenneth W. Mentor
University of North Carolina Wilmington

Virtually unknown twenty years ago, computer crime has rapidly become part of daily life. Computer crime, also known as cybercrime, includes a range of criminal activity associated with computers or networks. Cybercrimes include the theft of property or identity, stalking and bullying, child pornography, and the distribution of illegal goods and services. Computer crime also includes denial of service attacks, securities fraud, and a variety of emerging issues regarding copyright and intellectual property. Due to the disruptive potential of crimes directed at businesses or governments, computer crime also raises concerns about terrorism or cyber-warfare.

Although technological breakthroughs have always created new opportunities for criminal behavior, the pace of change has accelerated due to rapid advancements in processing power, access to technology, and the expansion of networks used to access computer-based technology. This technology allows criminals to operate more efficiently and effectively, often with minimal surveillance. Since these crimes are not detected or investigated through traditional law enforcement tools, these crimes present a significant challenge for the justice system.

According to Federal Bureau of Investigation (FBI) estimates, U.S. businesses spend around $67 billion each year dealing with computer theft and malicious programs such as viruses and spyware. The Internet Crime Complaint Center (IC3), a partnership between the FBI, the Bureau of Justice Assistance, and the National White Collar Crime Center, also estimates a total loss of $559 million per year million related to a variety of frauds, including scams asking for advance fees associated with a large return from a fake lottery or estate, non-delivery of merchandise or payment, and other crime related to consumer goods and services. The number increased substantially in 2009, as it has every year, more than doubling the 2008 estimate of $265 million.

Computers as Targets of Cybercrime

The targets of computer crimes include both individuals and organizations. Crimes against individuals target the person’s property, or in the case of stalking and bullying, the person is the target. The computer itself was the target of many of the first cybercrimes. Cybercriminals, often motivated by curiosity and challenge more than personal gain, exploited opportunities to access other computers. The infringement on the privacy of others, which may include damage to files, software, or other property, is known as hacking. The first hackers were younger computer users who engaged in hacking as a hobby that provided an opportunity to develop, and demonstrate, their computer skills. The initial hackers were not interested in harming others. In fact, they were often helpful in efforts to identify and reduce security risks.

Cybercriminals soon moved beyond simply accessing other computers to a more active effort to control these computers or the networks to which they are attached. Computer viruses and worms, transferred through the exchange of infected files or embedded in “Trojan horses” or other seemingly benign files, have the potential to quickly spread from one system to another. Once infected, files and information on the computer are altered or destroyed as the virus actively seeks other computers to infect. A virus can hide and replicate itself, wait harmlessly until activated, delete or transfer files and information, post messages on the user’s screen, and interfere with the use of printers or other peripherals. In a cycle of development often demonstrating escalating skill levels, individuals, businesses, and governments have spend billions on the development of anti-virus and anti-spyware software, often staying just a step ahead of cybercriminals.

Vandalism and defacement are also examples of crimes directed at computers. Cyber vandalism ranges from sending destructive viruses and worms, to hacker attacks designed to disrupt or destroy entire computer networks. Vandals may delete information needed by legitimate users or install programs that deny users from accessing this information. Hackers may also vandalize a website or personal computer in order to display political, religious, or other malicious messages.

Hacking has reached a global level, often targeting businesses or governments. For example, a hacker group known as “Anonymous” successfully organized denial-of-service attacks that disrupted service at Visa and MasterCard after these corporations stopped allowing donations to WikiLeaks. Like WikLeaks, Anonymous and similar groups use the Internet to highlight what they see as illegal or unethical corporate or government behavior. Although these organizations target computers, their actions also demonstrate the use of computers as a tool for protest and/or financial gain.

Computers as Tools for Cybercriminals

Rather than targeting the computer or network, other computer crimes use technology as a tool for the completion of a crime. These crimes include fraudulent use of credit and debit cards, unauthorized access of bank accounts, and theft from accrual, conversion, or transfer accounts. Due to the prevalence of technology, the cybercriminal can steal millions of dollars by using technology to skim a few cents, or less, from billions of routine transactions performed every day.

While embezzlement and fraud are certainly not new crimes, technology has changed the rules. Similarly, stalking and bullying are examples of existing crimes that have evolved to take advantage of technological tools. Cyber stalking refers to the use of the Internet, e-mail, or other electronic communication methods to stalk another person. Some stalkers pursue minors through online chat rooms while others harass their victims through social networking or other online or electronic communication. Cyber stalking can range from simple harassment, threatening or intimidating a victim, or repeated attempts to communicate with the victim. Since computers and the Internet provide a safe haven for the cyber stalker, while also providing a place to exhibit uninhibited conduct, this crime can be difficult to identify and address.

Stalking and exploitation have grown to the extent that these crimes reach beyond inexperienced computer users to impact individuals that assume they are well protected and fully aware of threats encountered with the use of technology. Although stalking and exploitation have always been challenging issues for the justice system, the use of technology in order to complete these crimes creates an enormous challenge. Similarly, bullying has always been a challenge for parents, schools, and the justice system. Cyber bullying inflicts and compounds the harm of traditional bullying but does so through the medium of electronic text.

Cyber spying, another growing concern associated with both crime and privacy, involves accessing computer files or using the Internet to gather private and confidential information. While hackers may access confidential information through illicit means, many of us willingly share a large amount of information on Facebook and other sites with social networking features. For example, crime may occur when an individual posts vacation pictures celebrating a trip. This announcement also notifies friends and others that the potential victim’s house may be empty. On a much larger scale, techniques used by cybercriminals may include data mining, which involves the analysis of cumulative data about an individual’s financial history, habits, preferences, and other unique traits.

Technology has also provided new opportunities for cybercrime associated with child pornography, money laundering, gambling, and the distribution of illegal substances. In addition to new laws and policies, law enforcement has responded to this category of computer crime by taking advantage of the privacy that is so attractive to cybercriminals. For example, child predators have been targeted by investigations in which law enforcement officers pose as children in an attempt to lure predators to a certain location for an arrest. Gaming websites have also been infiltrated, and charged brought, as a result of similar sting operations.

Opportunities for Cybercrime

Other computer crimes are the result of the massive opportunity created due to the widespread use of computers and technology. These crimes are committed by groups or individuals actively involved in cybercrime as well as citizens who break the law, willingly or otherwise, because it has become so easy to do so. Computer theft and the black market for technology are simple examples of this type of criminal activity. Similarly, technology has advanced to the point where amateurs can easily engage in counterfeiting. As with other types of cybercrime, the justice system has responded to these challenges by relying on technological advances that make it more difficult to profit from breaking the law.

Crimes in this category also target industries, individuals, and businesses in order to engage in criminal activity ranging from music trading, software piracy, and other infringement of copyright and intellectual property rights. These crimes occur, in part, as the result of confusion about ownership. For example while an individual knows it is wrong to steal a computer, the ownership of software, music, and movies is not immediately apparent. It can also be difficult to define a victim when the crime is limited to downloading music from websites using programs that facilitate file sharing.

The policy response to this type of cybercrime includes education, increased threats, and reliance on technological advances that monitor the sharing of digital media. This monitoring can lead to a DMCA (Digital Millenium Copyright Act) warning, an informational first step provided by the Internet provider, potentially followed by legal action. While the DMCA increases penalties for online copyright infringement, and criminalizes efforts to defeat copyright protections, the initial policy response to this type of cybercrime includes the opportunity to learn about copyright laws. The cybercriminal, who may be a computer savvy child with a great music collection, has the opportunity to conform to these laws before facing further legal action. The DMCA also addresses repeat behavior by authorizing both civil and criminal penalties, including imprisonment and fines up to $1,000,000.

Identity theft is another example of a crime that relies on the ubiquitous use of computers and technology. Identity thieves use a variety of electronic tools, often relying on the individual’s limited understanding of computers, to collect social security numbers, credit card information, and other unique information to gain access to a person’s financial data. Phishing, one of the best-known tools used by cybercriminals, uses e-mail or websites to steal personal and financial information. Computer criminals have become increasing sophisticated in their efforts to make it difficult to distinguish legitimate e-mail and website content from illegitimate, so Internet users have been forced to become similarly creative, educated, and suspicious in order to protect themselves from cybercriminals.

While the majority of Internet users have learned to identify and avoid these risks, much as we have learned to minimize risk in the non-virtual world, phishing and related scams only need to succeed for a small number of people when the scam is operating on a global level. Research supported by the financial services industry reports that more than 11 million adults were victims of identity theft and fraud in 2009. The total cost of these crimes was more than $54 billion. The number of victims actually decreased considerably in 2010, down to just over 8 million people, but the cost of identity fraud increased to $631 per incident, up 63% from the previous year. The decreased number of incidents may be attributable to increased security by the general public and financial institutions, although the increasing cost of such crimes can be financially devastating for victims.

Responding to Computer Crime

While law enforcement agencies are typically bound by geography, computer criminals can treat the whole world as their target. While leading to a vast number of potential victims, the global nature of cybercrime leads to unique challenges for the justice system.

Like computer crime itself, the enforcement of cybercrime is evolving. Based on the uniqueness of this criminal activity, congress has treated computer-related crime as a distinct federal offense since 1984. Identity theft became a federal crime in 1998, with most states passing similar laws against identity theft since then. The attacks of 9/11 also impacted our definition of, and response to, computer crime. The USA Patriot Act amended parts of the National Information Infrastructure Protection Act in order to make it easier to investigate and prosecute crimes against crucial computer systems. Federal and state law enforcement agencies have also increased their efforts to collaborate in a variety of ways, including the coordination of activities completed by law enforcement agencies involved in investigating cybercrime. Local police departments have also responded to new challenges by creating specialized units focusing on specific types of cybercrime, with undercover officers actively involved with the investigation of gambling, child pornography, and the distribution and sale of illegal goods and services.

Though contemporary techniques have increased the effectiveness and efficiency of justice agencies charged with responding to cybercrime, critics are concerned that these efforts have compromised the privacy and liberty of U.S. citizens who have not engaged in criminal activity. While the level of intrusion and surveillance citizens will tolerate may depend on the perception of risk, computer crime has rapidly become a massive problem and we may not fully comprehend the risks – to both security and liberty. Cybercriminals have also demonstrated the ability to respond very quickly to new opportunities for criminal gain, in spite of increased efforts to stop their behaviors. As with other questions about crime, we often confront issues regarding the balance of security and liberty. Although the justice system has a long history of protecting our rights in the face of threats, cybercrime has accelerated these efforts to uncomfortable levels and we can expect continued policy changes in response to the challenges of computer crime.

Further Readings

Balkin Jack M., James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky., CYBERCRIME: Digital Cops in a Networked World. New York NY: NYU Press, 2007

Bloss, William P. Under a Watchful Eye: Privacy Rights and Criminal Justice. Santa Barbara, CA: Praeger Publishers, 2009

Britz, MarJie T. Computer Forensics and Cyber Crime: An Introduction, 2/E. Boston, MA: Prentice Hall, 2009

Clarke, Richard and Robert Knake. Cyber War: The Next Threat to National Security and What to Do About It. New York, NY: HarperCollins Publishers, 2010

Federal Bureau of Investigation. The IC3 2009 Annual Report on Internet Crime. Washington, DC: Federal Bureau of Investigation, 2010.

Knetzger, Michael, and Jeremy Muraski. Investigating High-Tech Crime. Boston, MA: Prentice Hall, 2008

Solove, Daniel J. and Paul M. Schwartz. Privacy, Information, and Technology. New York: Aspen Publishers, 2008

Kerr, Ian, Valerie Steeves, and Carole Lucock, eds. Lessons from the Identity Trail: Anonymity, Privacy, and Identity in a Networked Society. New York: Oxford University Press, 2009

McQuade, Samuel C. Understanding and Managing Cybercrime. Boston, MA: Prentice Hall, 2006

Taylor, Robert W., Eric J. Fritsch, John Liederbach, and Thomas J. Holt, Digital Crime and Digital Terrorism Second Edition. Boston, MA: Prentice Hall, 2011

MEDIATION AND DISPUTE RESOLUTION

Kenneth W. Mentor
University of North Carolina Wilmington

Most people work through a variety of interpersonal conflicts or disputes on a daily basis. The majority of these disputes are quickly resolved through a conflict resolution process that is so routine that we do not recognize the situation as a conflict. In other cases interpersonal conflict can be so serious that friendships and relationships are threatened. More serious conflicts typically include many issues and parties and may be difficult to resolve without outside assistance.

Each of us approaches conflict in different ways, often depending on the situation in which conflict occurs. We also choose our responses to conflict based on our individual dispute resolution skills. In many cases we choose the path of least resistance, especially if we are uncertain of our ability to productively respond to conflict. This tendency may cause us to avoid conflict if an easy solution is not apparent.

Unresolved conflict can result in stress, violence, litigation, and a variety of activities intended to prevail. Since these activities can be very destructive, it is in our best interest to develop efficient procedures that allow the parties to resolve differences peacefully. Ideally, these dispute resolution processes will allow the parties to satisfy their interests in ways that reduce suffering while efficiently relying of positive resources. In effect, conflict provides an opportunity to communicate, to learn how the other parties define the problem, and work toward a resolution that will, in addition to addressing the issues, lead to lowered levels of stress and other emotional responses to conflict.

LITIGATION, POWER, AND ADR

While many people are good at resolving simple conflicts, other disputes cannot be resolved without the help of outside parties. Each conflict situation offers many options for resolution. In addition to processes that rely on interpersonal skills, our legal system has designed a number of methods for resolving or minimizing conflict. The choices we make when faced with conflict can result in very different results, both in terms of substance and process.

As we know, litigation is often chosen when conflict reaches a level where interpersonal skills fail to lead to a successful resolution. Unfortunately, the decision to litigate often results in a process that is mechanical and contentious. Litigation-based processes often ignore the feelings of disputants. Although the parties reach a decision that is defined as a resolution, unresolved issues often lead disputants to report that they are not satisfied with the results or the process. Access to litigation, and in many ways justice, are not equal. Many disputants are not able to take their disputes to court. As a result, litigation fails to address many of the most common disputes. In addition to litigation, or in the absence of other means of dispute processing, aggressive responses to conflict may be chosen. Aggressive responses to conflict are dangerous, ineffective, and in most cases unlawful. An aggressive response to conflict also demonstrates disrespect for self and others.

As in these examples, many responses to conflict involve the use of power, either personal power or reliance on state power, that can be called upon to support an individual’s belief that he or she is “right.” Mediation and other alternatives to litigation offer a solution to litigation and other power-based responses to conflict. Litigation and other power-based forms of conflict processing often results in a winner-take-all way of thinking. Failing to realize that a cost free win is extremely unusual, disputants may begin the litigation process with the expectation of a clear and convincing victory. As we know, even if one party prevails on every point, the case will be extremely expensive in terms of money, relationships, and the emotional, personal and business life of each party.

While litigation remains an option for many parties and disputes, there are many alternatives that seek to minimize power, respect feelings, and resolve disputes in ways that leave parties with positive feelings about the process and result. Alternatives to litigation are referred to as Alternative Dispute Resolution, or ADR, and include a range of processes. ADR processes can be very informal. In many cases the process is limited to the disputants and the requirements of record keeping and other protocols are relaxed in comparison to courtroom processes. At other times the dispute is more complex and may include a multiple stage process, with many disputants and a group of mediators. In other situations the ADR process is strictly controlled and may closely resemble courtroom-based efforts to resolve conflict. The flexibility of these processes is one of the key strengths.

Alternative dispute resolution processes typically include a neutral third-party whose role varies according to the process selected. An information sharing process, in which disputants work out the details of their dispute and work toward an agreement, is typical of most ADR processes. In mediation, a trained third-party neutral works to help the parties communicate in ways that lead to resolution. The mediator generally does not have the authority to make decisions that would end the dispute. In arbitration, the neutral third-party is empowered with decision-making authority. Other ADR processes include fact-finding, ombudspersons, private tribunals, mini-trials, conciliation, and other processes that include a mixture of techniques.

ADR works best if it is chosen early in the life of a dispute – before parties have committed to hard and fast positions. That is the point in time when a neutral, objective and impartial third party may assist the parties in achieving results which can be imaginative, inventive, and not necessarily based on a monetary settlement. In contrast to litigation, which typically relies on processes that can seem very mechanical and dehumanizing, ADR has the capacity to search for, and adopt, results that meet the parties’ underlying interests and overall objectives. Since disputes often include multiple parties and interests, value can be attached to feelings, actions, and other things that are difficult to quantify but have value that is unique to the disputants.

ADR processes are often endorsed by the courts and are connected to court-based dispute resolution processes. The court may transfer their decision-making power or the ADR process may be used to narrow the range of issues to be addressed by the court. ADR processes can also be independent of the courts. “Community mediation” programs have been created to address neighborhood and other local disputes. School based mediation programs are evident in the development of campus mediation centers and peer mediation programs. ADR processes are used in the workplace, where ombudpersons, arbitrators, and mediators are active in the resolution of employment related disputes. ADR processes are also used to resolve environmental and property disputes. ADR processes are also used in efforts to resolve disputes between organizations, corporations, and nations.

MEDIATION

ADR includes a range of processes, each sharing similar procedures, philosophy, and advantages. Mediation is one of the best known, and best understood of these processes.

In mediation, the disputing parties engage a third-party to assist them in coming to a mutual resolution. “Ownership” of the dispute remains with the disputants and the third-party remains neutral. The mediator’s goal is to help the parties work together to resolve “their” dispute.

While the mediator is neutral with respect to outcome, he or she controls the mediation process. A primary goal of the process is the enable the disputants to communicate in a way that will lead to mutual understanding of the issues and interests that underlie positions that have been expressed by the disputants. The mediator helps the disputants discover and evaluate a range of settlement options, eventually leading to a mutually acceptable agreement.

Communication is the centerpiece of any mediation. The disputing parties each have the opportunity to tell their stories and be heard by the opposing party. Since poor communication skills, and the escalation of conflict that may result from ineffective communication, may be at the root of the dispute, the mediator works to encourage an open and respectful exchange of ideas. Throughout the early stages of this communication process disputants typically take “positions.” These positions may be firmly held and in direct opposition to the positions expressed by the other party. The parties have expressed these positions because they see them as a means to achieve certain goals or to satisfy unexpressed “interests.” The mediator assists the parties in a communication process that is intended to expose these underlying interests. If the parties listen carefully they may learn that the other party’s perceptions are very different from their own. In addition to disclosure, the parties will begin to understand why these positions have been expressed and will hopefully begin to develop respect for (not necessarily agreement with) the other party’s feeling and interpretations. In many cases the process of moving from “positions” to “interests” lead the parties to realize that their goals are not as divergent as they assumed during the early stages of conflict.

The mediator assists the parties in reaching agreement by using and encouraging active listening techniques. The mediator also asks directive and clarifying questions in an effort to expose all relevant issues. Throughout the process the mediator works to validate the parties’ points of view, acknowledging the disputant’s right to own his or her feelings and have these feelings be expressed and clarified in an effort to reach a shared understanding of all issues. A key advantage of the communication process is that the process often leads to the identification of common interests. Once these interests are identified the mediator helps the disputant’s develop and evaluate alternative solutions to the dispute.

The primary goal of mediation is for all parties to identify a solution they can live with and trust. This goal is reached through a process that encourages an honest discussion of past issues and a shared move toward a future-focused orientation in which the parties solve problems in ways that protect feelings and relationships. Mediation and other forms of ADR also have important secondary goals. In many cases disputants benefit from improved communication and an enhanced understanding and respect for the other person’s point of view. Mediation also offers an opportunity to be heard, and perhaps to express anger and other emotions in a positive environment. Mediation also presents an opportunity to openly examine the strengths and weaknesses of the positions that disputants cling to as the preferred “solution” to their dispute.

CONCLUSION

Although mediation and other ADR processes may provide an effective alternative to litigation, it would not be accurate to suggest that these processes are always preferable or that litigation could, or should, be replaced by ADR. It may be best to think about these processes as adding to, or extending, the range of tools available in our efforts to resolve difficult disputes. Some have expressed concerns about the privatization of disputes, including disputes that may best be addressed through legislation and other processes that lead to change. Others have raised concerns about the effectiveness of informal and neutral processes in situations where judicial processes have the potential to “balance the scales” in an effort to prevent a powerful party from imposing solutions. Concerns have also been raised about training, education, and licensing of mediators and others involved with various ADR processes. Finally, some have expressed concerns about a “one size fits all” application of ADR to disputes where alternate means of dispute processing might be more appropriate.

The benefits of ADR include savings of time and money, the potential to protect ongoing relationships, increased satisfaction with the process and solution, and greater control over the dispute resolution process. The process is confidential, flexible, creates an opportunity to end a dispute without a “loser,” and empowers parties to work together to resolve future disputes. These processes provide a fair and flexible alternative process that can be used to efficiently resolve disputes. When chosen correctly, and used by skilled professionals, mediation and other forms of ADR have proven to be very powerful tools in the effort to peacefully resolve disputes.

SUGGESTED READING

Bush, R., and Folger, J., The Promise of Mediation. San Francisco, CA: Jossey Bass, 1994.

Carpenter, Susan L. and W.J.D. Kennedy. Managing Public Disputes: A Practical Guide to Handling Conflict and Reaching Agreements. San Francisco, CA: Jossey Bass, 1988.

Fisher, Roger, William Ury and Bruce Patton. Getting To Yes: Negotiating Agreement Without Giving In. 2d ed. New York: Penguin Books, 1991.

Folberg, Jay and Alison Taylor. Mediation: A Comprehensive Guide to Resolving Conflicts Without Litigation. San Francisco, CA: Jossey Bass, 1984.

Goldberg, Stephen B., Frank E. A. Sander, and Nancy Rogers. Dispute Resolution: Negotiation, Mediation, and Other Processes. 2d ed. Boston: Little, Brown, 1992.

Moore, Christopher W. The Mediation Process: Practical Strategies for Resolving Conflicts. 2d ed. San Francisco, CA: Jossey Bass, 1996.

Ury, William, J. Brett and S. Goldberg. Getting Disputes Resolved. San Francisco, CA: Jossey Bass, 1989.

Rockefeller Drug Laws

Kenneth W. Mentor
University of North Carolina Wilmington

The Rockefeller Drug Laws, enacted in 1973, imposed mandatory minimum prison terms for possession or sale of relatively small amounts of drugs. The laws sought to frighten drug users by imposing harsh penalties. These penalties would also take drug dealers off the streets, preventing them from engaging in criminal activity for many years. The Rockefeller Drug Laws were also intended to reduce robberies, burglaries, and other crimes commonly associated with addiction. The laws marked a shift toward addressing illegal drug use through the criminal justice system rather than as a health care issue. Critics challenged this shift from the start and the debate continues. Critics also questioned penalties for possession that equaled the penalty for second-degree murder. The laws also drew opposition from civil rights advocates who argued that the laws would be applied inordinately to African-Americans and Latinos.

The new sentencing guidelines had a dramatic impact. New York’s prison population grew from 12,500 in 1973 to 71,500 in 1999. Drug offenders as a percentage of New York’s prison population surged from 11% in 1973 to a peak of 35% in 1994. The Rockefeller Drug Laws became the template for implementing other drug policies dominated by “get tough” attitudes toward drug use and criminal activity associated with use and distribution. The tough on crime mentality that served as a foundation for the Rockefeller Laws stretched beyond the war on drugs as a mandatory sentencing movement swept the country, including “three-strikes” legislation in several states, eventually raising the nationwide prison population to over 2.3 million.

An early evaluation of the Rockefeller Laws was highly critical. The 1978 evaluation, issued by the Joint Committee on New York Drug Law Evaluation, found that the law was failing on several fronts despite the expenditure of $76 million. Drug felony arrests, indictment rates, and conviction rates all declined between 1972 and 1976. The proportion of drug felony dispositions resulting from trials tripled during this time period and the average time for processing of a case doubled. Heroin use and heroin-related crime was as widespread in 1976 as it was before the Rockefeller laws. The percentage of drug felony arrests resulting in indictments dropped from 39.1 to 25.4 percent and the likelihood of conviction after indictment declined from 87.3 to 79.3 percent (Joint Committee on New York Drug Law Evaluation, 1978).

The evaluation also highlighted stresses being placed on the justice system. Since many fewer defendants were willing to plead guilty, the percentage of drug felonies disposed of by trial rather than guilty plea rose from 6 to 17 percent between 1972 and 1976. As a result, the average case processing time increased from 172 to 351 days. Pressures on the corrections system were also increasing as courts were forced to impose stronger sentences. Between 1972 and 1974 only 3 percent of New York drug felons received minimum sentences longer than 3 years. Prisons began to fill as 22 percent of those sentenced under the new law received sentences longer than 3 years. Use of alternative sanctions also decreased as the likelihood that a person convicted of a drug felony in New York State would receive a prison sentence grew from 33.8 to 54.8 percent (Joint Committee on New York Drug Law Evaluation, 1978).

In response to this evaluation, and the criticism accompanying the report, the New York legislature amended the laws to increase the amount of drugs needed to trigger the 15-year to life sentence. The laws went unchanged until 1988, when concern over “crack” cocaine led to a lowering of the weight threshold for cocaine possession. In spite of continued criticism, the tough on crime mentality underlying many political decisions allowed the Rockefeller Drug Laws to remain essentially unchanged for the next 20 years.

The State of New York began reforming the Rockefeller Drug Laws in October 2008. In announcing the reform, Gov. David Patterson said, “Under the Rockefeller Drug Laws, we did not treat the people who were addicted; we locked them up under some of the nation’s harshest sentences. Families were broken, money was wasted and we continued to wrestle with the statewide drug problem.” The 2008 reforms sought to give judges the discretion to send individuals into treatment and mental health services. In addition, people incarcerated under the old laws for nonviolent drug offenses earned the right to petition the court for resentencing. If approved by a judge, many of those serving mandatory sentenced under the Rockefeller Drug Laws will finally be released.

For more information:

Human Rights Watch (2009). Barred from treatment: Punishment of drug users in New York state prisons. Washington, DC: Human Rights Watch.

Joint Committee on New York Drug Law Evaluation. 1978. The nation’s toughest drug law: Evaluating the New York experience. Project of the Association of the Bar of the City of New York and the Drug Abuse Council, Inc. Washington, DC: U.S. Government Printing Office.

Tonry, M. (2009). “The mostly unintended effects of mandatory penalties: Two centuries of consistent findings.” Crime and Justice, 38 (65).

Graffiti

Kenneth W. Mentor
University of North Carolina Wilmington

Graffiti includes unauthorized writing, marks, or images on buildings, vehicles, or other private or public structures. Early examples of graffiti date to primeval times. Drawings of bison and deer found in caves are examples of graffiti left by prehistoric humans. This graffiti often depicted ceremonial or sacred locations. Other examples of early graffiti date to Ancient Greece and the Roman Empire. In addition to ceremonial significance, graffiti from this time included politics, humor, and other characteristics associated with contemporary graffiti.

The Kilroy image American soldiers drew on the walls of the cities they occupied during World War II was an example of the “I was here” form of graffiti. Similarly, tags or throw-ups, the most common type of graffiti, may be limited to the signatures of graffiti writers intending to leave their mark. These tags are not intended to communicate territory or control. In contrast, gang graffiti can be used to mark territory. More intricate graffiti, including images or murals, may range from temporary statements to more permanent representations of community and cultural pride.

Graffiti has traditionally been used to make political statements, although this type of graffiti became much more common in the 1960s, perhaps as a result of social unrest. As a form of vandalism, or communication, graffiti is exercised by marginal groups who are denied legitimate outlets to communicate frustrations or disapproval with the status quo. Graffiti is also an important tool for cultural communication. Building on the political expressions of the 1960’s, graffiti has more recently been associated with hip hop culture. The mainstream public has been introduced to hip hop graffiti through references in films, music, fashion, and other forms of communication. This exposure has provided opportunities for taggers to move from the underground world to museums. Graffiti has also moved from temporary to permanence as artists are recognized and commissioned to create “legitimate” forms of artistic expression.

Graffiti has also attracted increasing interest from the criminal justice system, perhaps as a result of the association with political and cultural communication. Local laws intended to restrict graffiti focus on vandalism rather than expression, often arguing that graffiti is detrimental to the safety and welfare of the public, reduces the value of private property, invites vandalism and additional graffiti, and encourages other criminal activities, eventually producing urban blight. Cities that have adopted a “broken windows” approach to crime control argue that graffiti, along with other signs of vandalism, lead to increased lawlessness. This perspective has resulted in graffiti laws that are overbroad, vague and an infringement on free speech. For example, in Ecko Complex LLP v. Bloomberg, 382 F.Supp.2d 627 (S.D.N.Y. 2005) the court ruled that it is a violation of the First Amendment to refuse to issue a permit based on the fear that a legal display or graffiti could encourage others to paint graffiti.

Graffiti control efforts also include architectural or environmental features, such as graffiti-resistant finishes, monitoring, and other forms of target hardening. Police may also target areas where graffiti is common. Many communities have passed graffiti abatement ordinances that call for quick removal or covering of graffiti. Business owners also remove graffiti out of concerns about intimidating patrons or creating or allowing a hostile work environment. Laws may also restrict access to spray paint and other supplies. As the artistic merit of graffit writers becomes accepted communities have also created legal alternatives, such as approved graffiti walls or other public spaces that highlight the work of graffiti writers.

For more information:

Castleman, C. (1982). Getting up: Subway graffiti in New York City. Cambridge: MIT Press.

Ferrell, J. (1993). Crimes of style: Urban graffiti and the politics of criminality. New York: Garland.

Ferrell, J. (1995). “Culture, crime, and cultural criminology,” Journal of Criminal Justice and Popular Culture, 3(2).

Kurlansky, M. and Mailer, N. (1974). The faith of graffiti. Westport, CT: Praeger.