National Review
Progressives overreact to an astonishing study of crime
Every year, something like 13 million misdemeanor charges are filed in the United States. These accusations, from traffic violations to serious assaults, may be less glaring than crime, but they are the main way Americans experience the criminal justice system. We prosecute misdemeanors because, among other things, we want them to be fewer and we believe that prosecution discourages recidivism. But a recent successful paper makes an astonishing claim to the contrary: prosecuting crimes actually increases the likelihood that they will offend again. The newspaper was announced by supporters of progressive district lawyers who have used their position to unilaterally impose reforms on the criminal justice system, including refusing to prosecute many crimes. YES Rachael Rollins of Boston, who provided the data for the study, said she confirmed the wisdom of her approach. So did other reformers, such as Chicago State Attorney Kim Foxx and San Francisco District Attorney Chesa Boudin. However, policy makers should be cautious before reaching such broad conclusions. The paper can be read just as easily to support more modest reforms – especially given the long-standing principles of criminal justice. The work is the work of three researchers: Amanda Agan of Rutgers, Jennifer Doleac of Texas A&M and Anna Harvey of NYU. Both Doleac and Agan have previously published research that challenges the political preferences of progressives, so their new discoveries were probably not driven by a desire to achieve a politically convenient outcome. In order to conduct their study, the three obtained data on each criminal case filed in Suffolk County (home in Boston) between 2004 and September 2018. They analyzed the relationship between whether an offender was prosecuted and whether he was subsequently prosecuted. retransmitted, indicating recurrence. The effects are staggering: not being prosecuted for a crime reduces the likelihood of a future 60 percent misdemeanor complaint and a 47 percent future felony complaint. It also significantly reduces the likelihood of future violent crime with motor vehicles and disturbances / thefts, although not drug offenses. In other words, prosecution not only does not deter subsequent crimes, but also increases the chances of recidivism. This, the authors of the paper suggest, is due to the fact that any deterrent effect is outweighed by the effects on the labor market outlook for crime. Unemployment can lead to crime, and prosecution can increase your chances of becoming unemployed. It also creates a criminal record, making the offender less employable and therefore more prone to crime. How did the researchers come to these conclusions? To understand how prosecution affects the risk of recidivism, we can’t just compare prosecuted and untreated offenders to see who commits multiple crimes. A person may not be judged precisely because it is not considered a risk – there are confusing variables that determine both of which we need to control. To solve this problem, the paper uses an “instrumental variable” uncorrelated with those confusing. All offenses charged in Suffolk County are charged by an assistant prosecutor (ADA). Using the other cases of each ADA, the perpetrators construct a measure of their “leniency,” that is, their inclination to prosecute a given offender. For the most part, ADAs seem to agree with criminal prosecution – they would typically prosecute about 70% of cases and usually drop about 20%. But about 10 percent of the time, they vary in terms of their deduced leniency. Assigning these 10 percent of offenders to variable leniency ADAs becomes a source of randomness. What this means is that most of the results of the paper apply to those “marginal” criminals. Not prosecuting all crimes will not reduce everyone’s risk of committing crimes in half, but refusing to prosecute a marginal crime – the one on the line between criminal prosecution and non-criminal prosecution – greatly reduces their chance of recidivism. Towards the end of the paper, the perpetrators generalize from these marginal offenders. They believe that non-prosecution has a large effect on all offenders, with a 15% reduction in the risk of silence on average. The effect is most concentrated among those who have been routinely prosecuted: being prosecuted, the authors write, has made them more likely to relapse. Strangely, the effect on those who are not usually prosecuted is indistinguishable from scratch. If the ADA had sued those it would not normally do, there would have been no average effect on their future propensity to offend. When I asked Doleac about this finding, she suggested that it might reflect the ADA’s judgment on guilt: the people most likely to relapse may also be the ones the ADA is more tolerant of – young people , the mentally ill, etc. – well-arranged adults who have made a mistake – are the ones for whom the ADA has the least sympathy, but for whom the prosecution could have a big negative impact. This suggests, in Doleac’s opinion, that there is a fundamental difference between guilt and risk. To me, it also indicates that ADAs are not great judges of the effects of their criminal prosecution choices. There is a second key detail to which the authors belong, but which has been omitted in some comments on the paper: most of the non-prosecution effect they measure is the result of first-time offenders, who become more prone to commits crimes if prosecuted. Instead, prosecuting criminals of any kind has little discernible effect on the likelihood that they will offend again in the future. This is not surprising, given that most crimes are committed by a handful of criminals – criminological research consistently finds that a small, crime-prone population leads the majority of crimes. For outsiders – including many first-time offenders – prosecution is unlikely to discourage them from doing something they would not do anyway, but it could have adverse effects that push them towards crime. So should we track crimes less? We cannot draw too dramatic a conclusion from a study of a county, however well conceived. And, although it is based on the latest statistical techniques, we should always pay attention to the findings that can only be reached through extensive statistical interrogations. The sheer complexity of the tool the paper uses, combined with the huge effects it finds, should temper the enthusiasm – there are simply too many degrees of freedom for researchers not to do so. That being said, we can cautiously conclude that the best evidence says that the marginal act should be pursued less frequently. But if the ADAs do not judge the effects of the prosecution, then we should not assume that they are good at saying the marginal contravention of the future serial offender. So, if the results of the study are wrong or the ADAs are weak judges on the relationship between prosecution and future crimes, we should avoid giving them too much freedom to decide who is and not a marginal case. Instead, we can provide a general rule: if in doubt, you are wrong to prosecute crimes for the first time. The diversion of these offenders, with the threat of a more severe punishment if they reoffend, could help eliminate cases while minimizing crime. It would also free ADAs to focus on repeated infringements. Targeting offenders would mitigate the risk of diversion abuse for the first time, making it clear that a “second chance” will not be followed by a third, a fourth, a fifth and so on. Research on California’s “three-strike law,” for example, indicates that increasing penalties for recidivist offenders can have a strong deterrent effect. The above approach is different from the idea that, in general, we should pursue crimes much less – a valid interpretation of the findings of the paper, but not necessarily the correct one, for two reasons. First, deterrence is not the only reason for prosecuting a criminal. Lawyers who do not prosecute tend to invoke “victimless” crimes, such as drug possession and prostitution. But offenses can also include crimes such as simple assaults and car thefts – crimes that harm others. Such offenses reasonably support a claim for retributive justice. It offends our moral sensibility to believe that a person who commits a serious assault, but not a murder, could escape without Scots. Second, systematic reductions in leniency can affect the decision-making process of all offenders, increasing their propensity to offend in the long run. The paper shows that Rollins’ move toward non-prosecution of crime has not increased overall offenses, but the data he uses refer only to the period between his January 2019 and March 2020 elections, when the coronavirus crisis began. It is fully possible for offenders to adapt and for offenses to increase in the long run. Changes in blanket policy can lead to increases in crime. California’s 2014 rise in crime theft, for example, has predictably led to an increase in city-level theft, indicating that criminals are changing their behavior in response to such changes. Dealing with the justice system can be time consuming and exhausting and can, on the sidelines, increase rather than reduce a person’s inclination to offend. Even those of us who are very concerned about public safety should be interested in creative solutions that minimize crime and disorder. At the same time, political decision-makers should not be overwhelmed – as some have rushed to dismantle police departments and reduce the use of more serious charges. Good research is the basis of good policy, and this research makes a valuable contribution to public safety policy. But we should be careful when walking with it – careful changes around the edges are always safer than blanket transformations.