Fault Lines
21 April 2017

What the Polls Don’t Say About Criminal Justice Reform

February 20, 2017 (Fault Lines) – People love criminal justice reform, and every couple of weeks we get a new poll showing just how much they love it. Polls show Republicans want reform. Polls show swing state voters want reform. Polls show that so many Americans want reform that you half suspect reform is handing out candy and Ferrari rides, just so people will be its friend.

The problem is that these polls show that people love a brand of justice reform that doesn’t actually exist. Until that changes, it will be impossible to tell if people want justice reform or fantasy.

This week offered a perfect case study in why polls tell us so little about how the public will respond to reform. On Thursday, Common Justice released a report on preventing violence by focusing on the needs of survivors. Impending rant aside, the ideas are innovative and worthy of consideration, but alongside the findings came a poll on survivors’ support for reform. Unsurprisingly, they’re fans. For example:

By a 2 to 1 margin, victims prefer that the criminal justice system focus more on rehabilitating people who commit crimes than punishing them.

Notice anything about the two options to choose from? Try another:

By a margin of 4 to 1, victims prefer increased investments in drug treatment over more investments in prisons and jails.

One more, just to get the pattern:

By a margin of 10 to 1, victims prefer increased investments in job creation over more investments in prisons and jails.

Each of these is a master class in getting the right answers by controlling the choices. Take something that is generally seen as good like rehabilitation or drug treatment, and contrast it with something bad, like prison. This makes it seem like the two are comparable, exclusive alternatives: invest in two jobs, or two prison beds. If that’s the choice, only sadists are going to pick prison.

Unfortunately, this is not the choice because in the real world, policies have real trade-offs. Cut sentences and reduce the prison population: someone who was freed as a result will probably commit another crime. It may not be a lot of people, crime may even go down as you’re reforming, but it is a virtual certainty that if you free enough people, one of them is going to commit a crime that they would not be able to commit otherwise.

Want to be more careful and only let out the “right” kind of people? Maybe you only release the drug offenders. Go ahead, but that will reduce the impact of your reform – only about 16 percent of the prison population is in for drugs, and some of those guys might commit an act of violence the next time around. The safer you play it, the fewer people you let out, the less your reform matters, and the US has a lot of people to let out if it wants to stop being the world’s number one jailer.

The false choices get us nowhere – if you want to know whether the public is actually ready for justice reform, ask about the risks, and the benefits. Consider the following:

Let’s say your state’s prison system has 1,000 inmates. A legislator proposes a reform that will reduce sentence lengths by 50 percent, reducing the prison population by 39 percent, to about 610. Of the 390 people freed, 257 will never commit another crime. The remaining 133 will. Their crimes will include one murder, two rapes, 31 assaults, and 13 burglaries. Will you support this reform?

This is what justice reform is actually going to look like. The reform package comes from the Urban Institute’s Sentencing Forecaster: reduce prison sentence length for all classes of crime by 50 percent, cut the prison population by 39 percent. The recidivism rate comes from a five-year study by the Bureau of Justice Assistance: of the people who recidivate, about 1 percent commit a homicide, 2 percent commit a rape, 23 percent commit an assault, and 10 percent commit a burglary. This isn’t scientific, but it’s a fairly reasonable thought experiment.

“But wait,” comes the cry of the rhetorically convenient reader, “we have rehabilitation programs. Once we deploy those, surely recidivism will disappear.” True, rehabilitation programs exist, and they can help. Some programs can reduce recidivism by up to 50 percent. (Get them wrong though, and they do nothing.)

But here’s the kicker: that 50 percent reduction is already included in the numbers above. The Bureau of Justice Statistics puts 3-year recidivism rates at about 68 percent. The package above assumes 34 percent recidivism rate, which is just about the best-case scenario for reform. And still: one murder, two rapes, 31 assaults, and 13 burglaries. Will you support this reform?

If the public is not ready to accept this trade-off, the arc of justice reform is just going to be a play everyone has seen before. The curtain goes up, the reform is announced, and politicians take the stage to smile and wave. Everyone pats themselves on the back for being so very progressive.

In act two, there’s crime. Maybe it’s a crime wave of some kind: it could be more violence or violence committed by people released as part of a reform, but the media can make a serviceably-terrifying crime wave out of shoplifting and car thefts if need be.

Maybe it’s just one crime by one guy: Willie Horton was one guy. Darrell Dennis, who crippled Arkansas’s parole reforms, was one guy. No serious reform effort will go more than a year without at least one horrific crime by one guy.

In act three, the curtain falls. Arkansas rolled its parole reforms back after Darrell Dennis committed his murder-carjacking. Murder went up in a few cities in 2015 and the Senate’s vaunted bipartisan justice reform withered. Trump campaigned on law and order rhetoric that everyone smugly assumed was so last century right up until about half the country signed on to the program, and made Jeff Sessions the Attorney General.

Justice reform can survive crimes and crime sprees. In DC, the Washington Post targeted a youth sentencing reduction law with a barrage of negative press that “encouraged” DC’s leaders to reform the law until reformers hit back hard – political sail trimming cuts both ways. But unless a poll shows that the public at large is willing to do the same, push past the horror stories and commit to reform in good times and bad, all the polls say is that the public likes good things and doesn’t like bad things. And justice reform is going to feature a whole lot of bad things.

 

5 Comments on this post.

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  • Richard Kopf
    20 February 2017 at 11:04 am - Reply

    Sam as you illustrate so well, legal realism is a bitch.

    The United States Sentencing Commission has done a serious dive into the question of recidivism entitled, RECIDIVISM AMONG FEDERAL OFFENDERS: A COMPREHENSIVE OVERVIEW (March 2016). One can find it here: http://www.ussc.gov/research/research-publications/recidivMarch 2016ism-among-federal-offenders-comprehensive-overview

    The offenders studied in this project were 25,431 federal offenders who:

    are citizens;

    re-entered the community during 2005 after discharging their sentence of incarceration or by commencing a term of probation in 2005;

    have valid FBI numbers which could be located in criminal history repositories (in at least one state, the District of Columbia, or federal records);

    are not reported dead, escaped, or detained, and

    have a pre-sentence investigation report that was submitted to the Commission with a federal sentence that was not vacated.

    The key findings of the Commission’s study are these:

    Over an eight-year follow-up period, almost one-half of federal offenders released in 2005 (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions.

    Almost one-third (31.7%) of the offenders were also reconvicted, and one-quarter (24.6%) of the offenders were reincarcerated over the same study period.

    Offenders released from incarceration in 2005 had a rearrest rate of 52.5 percent, while offenders released directly to a probationary sentence had a rearrest rate of 35.1 percent.

    Of those offenders who recidivated, most did so within the first two years of the eight-year follow-up period. The median time to rearrest was 21 months.

    About one-fourth of those rearrested had an assault rearrest as their most serious charge over the study period. Other common most serious offenses were drug trafficking, larceny, and public order offenses.

    A federal offender’s criminal history was closely correlated with recidivism rates. Rearrest rates range from 30.2 percent for offenders with zero total criminal history points to 80.1 percent of offenders in the highest Criminal History Category, VI. Each additional criminal history point was generally associated with a greater likelihood of recidivism.

    A federal offender’s age at time of release into the community was also closely associated with differences in recidivism rates. Offenders released prior to age 21 had the highest rearrest rate, 67.6 percent, while offenders over sixty years old at the time of release had a recidivism rate of 16.0 percent

    With the exception of very short sentences (less than 6 months), the rate of recidivism varies very little by length of prison sentence imposed (fluctuating between 50.8% for sentences between 6 months to 2 years, to a high of 55.5% for sentences between 5 to 9 years).

    Other factors, including offense type and educational level, were associated with differing rates of recidivism but less so than age and criminal history.

    In short, sentencing reform advocates must deal with the reality that a large percentage of offenders are beyond redemption and must be incapacitated for the protection of the public. Until do-gooders stop ignoring these inconvenient facts, they might as well sing Kumbaya and call it a day.

    All the best.

    RGK

  • Brian Cowles
    20 February 2017 at 10:32 pm - Reply

    Judge,

    There are do-gooders, and there are rational do-gooders. Since you like empiricism so much (as do I), I would recommend reading up on linear programming. The reality of recidivism is there, although I hope our nation can perhaps separate first-time offenders from repeat ones if our prison burdens lift a bit, among other things.

    Regardless, the opposing costs of taxpayer dollars and how much crime we are prepared to tolerate can be (theoretically) measured and a happy medium can be found. After all, the only way to prevent recidivism is to never release any prisoners. Since that is impractical at best, the middle ground is the only solution. I simply believe we are a bit off that elusive middle ground, on the over-incarceration side.

    As an aside, “beyond redemption” might be a tad harsh, considering how little legitimate opportunity there is in our society for ex-felons. Definitely something for my generation to work on.

    Regards,
    Brian Cowles

    • Richard Kopf
      20 February 2017 at 10:56 pm - Reply

      Brian,

      Much of what you write I agree with. I particularly agree that we should do far more for ex-felons. It remains, however, true that there is a class of offenders who will continue to offend once released no matter what. It is that aspect of reality that I worry about getting overlooked.

      I think you and I are on different sides of the “happy medium” goal. That said, I hope (and even might believe) that a middle ground can be found by people of good faith who also look hard at inconvenient facts.

      Thanks for your engagement. All the best.

      RGK

      PS “Beyond redemption” was more than a tad too harsh. I apologize.

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