Remembering a Trailblazer in Criminal Justice Policy

Harold Pollack

Mark Kleiman

NYU professor Mark Kleiman died Sunday, following complications of a kidney transplant.

What does one say upon the death of a close friend and mentor of three decades? One might start with the formal biography. One of America’s foremost authorities on drugs and crime, Mark was a prolific writer for both popular and scholarly audiences. He was a familiar voice to Prospect readers. Mark led the Crime and Justice program at the Marron Institute and taught at the Wagner School of Public Service. His recent work focused on improved policies to monitor and help criminal offenders, marijuana policy, and other matters. Before that, he had long stints teaching public policy at UCLA and Harvard, and the usual list of prestigious visiting professorships and fellowships.

He died at age 68 at the height of his intellectual powers, still publishing important articles and books, still assisting Washington state, Colorado, and other state and local governments wrestling with difficult criminal justice questions. Just three weeks ago, Mark was dispatching acerbic emails about health reform, reproductive choice, and the 2020 Democratic primaries.

No university web page can explain Mark’s outsized influence on a generation of policy scholars. His death produced an outpouring of emotion from senior colleagues and friends, and from the legion of junior collaborators whose careers Mark has nurtured.

Criminologist Phil Cook writes over email:

From the day I met him, Mark became my model for a policy-engaged scholar. He was an avid consumer of social science research. … For Mark, the science was more than a collection of empirical claims on what works, but more fundamentally a set of ideas that he harnessed to inform his thinking. … “Swift, certain, and fair” emerged from his understanding of basic principles of behavioral economics, combined with his assessment of what was needed to reform the criminal justice system to reflect those principles.

As Michael O’Hare noted in an astute review, Mark understood that crime and punishment both brought their costs. Criminal justice actors, from police departments to the white-collar defense bar, have ample reason to ignore one side or the other in this ledger. Mark sought creative policies that harnessed the tools of organizational analysis, psychology, and behavioral economics to reduce costs on both fronts.

“Swift, certain, and fair” was likely Mark’s most prominent contribution. With Angela Hawken, Mark studied Hawaii’s Opportunity Probation with Enforcement (HOPE) program. HOPE deployed relatively mild and graduated sanctions to reduce drug use and re-offending without draconian penalties. The jury is still out regarding the effectiveness of HOPE itself. The broader “swift, certain, and fair” concept has proved fruitful in many other contexts. Most famously, South Dakota’s 24/7 Sobriety Program has demonstrated striking benefits in reducing alcohol-related social harms.

RAND’s Rosalie Pacula notes that Mark was also ahead of his time in nurturing young women within the conspicuously male-dominated fields of crime and drug policy:

Mark didn’t coddle any of us—he challenged our thinking the same way he would challenge any male peer or student—but he also encouraged us to share our innovative ideas, spoke confidently about these ideas to others giving us full credit, and helped us pursue our scientific questions every chance he could. … Having someone as brilliant as Mark listening carefully and engagingly to our ideas, brainstorm ways of testing them, and then promote them to others giving us full credit. That did so much for our confidence.

Jonathan Caulkins, another prominent co-author, notes Mark’s “habit of entrusting young people with great responsibilities, into which they grew. So he developed young people rather than just getting the job done.” Reflecting strong training in political philosophy from Plato to Mill to Rawls, Mark challenged easy assumptions that consumers always make the right choices for themselves. Yet he still recognized market dynamics as a key underpinning of drug policy.

Mark valued the basic insights provided by game theory for the regulation of organized crime. As drug-selling organizations wreaked havoc in northern Mexico, Mark urged the DEAto crack down on the most violent organizations rather than on those which moved the most product. More important, he wanted law enforcement to crack down on any U.S. distributors who do business with these violent groups. He wanted the entire supply chain to understand that violence against Mexican authorities is a radioactive business model. Mark could be ahead of his time in what he ignored, too. In the heyday of mathematical formalism, he was never too interested in virtuoso theoretical exercises such as the rational addiction model, which he considered unmoored from the behavioral or empirical realities of substance misuse.

Mark’s ambivalence regarding cannabis legalization is likely to prove prescient. Mark opposed punitive criminal penalties on marijuana users. Yet he also distrusted the motives and the political influence of the commercial cannabis industry, which he feared would emulate the all-too-familiar abuses we now associate with tobacco, alcohol, and prescription opioids. Caulkins suggests that Mark’s recommendation of “grudging tolerance” provides a pearl of wisdom in managing these challenges.

Peter Reuter notes that Mark’s prose provided other reasons for his influence, reflecting the worldview and laconic prose style of the great economist Thomas Schelling, his intellectual mentor, but adding something extra:

What Mark added to the Schelling style was wit. It was always a pleasure to read a Kleiman text, unless you were the target of his ire, in which case thumbscrews might have been preferable. … Mark’s combination of erudition, analytic cleverness, and expositional brilliance will be missed.

Mark also retained Schelling’s irreverence for settled pieties. A stout and cantankerous liberal, he sometimes anchored the right flank of criminal justice and drug policy research, produced by a scholarly community occasionally rendered brittle by ideological conformity. Liberals and conservatives today can learn from Mark’s judicious analysis of the 1995 crime bill. He understood, and lamented, the harms brought by that bill’s toxic prison construction subsidies. He also understood the real benefits brought by that bill’s measures to enlarge police departments. Putting more cops on the street does not logically require more arrests or greater incarceration; sometimes it implies the opposite. Humane and effective policing is labor-intensive, whether one is focused on higher homicide clearance rates or services to people experiencing behavioral crises.

Mark wasn’t right about everything. His unwillingness to join any parade sometimes let him down. Maia Szalavitz, author of Unbroken Brain, rightly notesthat he was slow to recognize the urgent need for syringe exchange. Whatever groupthink might have animated the harm reduction community’s strident advocacy, they were right and he was wrong in that matter.

Fortunately, Mark evolved. “When I first met him,” Szalavitz told me, “I thought of him as the smartest drug warrior. But he wasn’t a drug warrior. In his own process of moving further away from that, he took many people along with him.”

Mark’s first book on cannabis, Marijuana: Costs of Abuse, Costs of Control, was prescient in understanding the dangers of punitive drug policy regulation—and in understanding marijuana’s genuine social and public-health harms.Against Excessand When Brute Force Fails are major works. His last book, Marijuana Legalization: What Everyone Needs to Know, written with Jon Caulkins and Beau Kilmer, is an essential primer as we move into a new era of marijuana policy and potentially national legalization.

Facing a serious cancer 20 years ago, Mark had more than the usual reasons to ponder his own mortality. He responded to the dire possibilities with remarkable equanimity:

Fifteen years ago, or even ten, the prospect of dying would have left me with a strong sense of potential wasted and work undone: a huge investment in being ready to produce, never to be collected on. But now I’ve done a solid chunk of my proper work, and would leave behind a good book, four or five ideas worth remembering, some great one-liners, and a collection of people, only some of whom I was being paid to teach, who think about the world differently and contribute to it more effectively because of their interactions with me. That seems enough to leave behind, if leave I must; there’s no sense of tragic waste.

I can also say that I have lived largely according to my own notions, learned what I wanted to learn, and surrounded myself with good company, good music, and objects worth contemplating. Again, I’d happily take another few decades of the same—my life, even before this latest turn, has been getting better and better—but if tomorrow were my last day I wouldn’t have to look back and say that I’d forgotten to live while I was alive.

Mark seemed unafraid of dying this time around. Last time we spoke, he told me how grateful he was for his excellent medical care, particularly for the love and support—and kidney—he received from his sister Kelly Kleiman, whom my daughters labeled “the cool Kleiman.”

Condolences to Kelly and to all who mourn Mark. He is missed.

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