Following Science or Making It Up?

The Los Angeles District Attorney Office issued this release touting the “accomplishments” of George Gascón’s first quarter in office. Among them is “a 71 percent reduction in enhancements filed by the office when comparing a three-month span between December 2020 and February 2021 to the same period the prior year.”

Why is that an accomplishment? “Conservative estimates suggest the reduction equates to more than 8,000 years of unnecessary exposure and the three-month cost savings are projected to be in the hundreds of millions of dollars.” (Emphasis added.)

How do we know that exposure was “unnecessary”? How do we know there is any net “savings” at all, rather than a net cost, when the full cost of the additional crimes that will be committed in the future are factored in?

“ ‘We are doing all of this because the science and data tell us so,’ [Gascón] said.”

Really?

At the bottom of the release are internet links to four documents. I have reviewed all four. Not one supports the proposition that eliminating sentence enhancements reduces crime or promotes public safety.

The first link is to a report of a poll by the misleadingly named soft-on-crime group Californians for Safety and Justice. There is much that can be said about this poll, but it is a topic for another post. It is not relevant to the point of this one.

The second link is to a report of the Public Policy Institute of California, another organization that consistently supports reduced punishment of criminals. The paper reports that “recidivism rate” as measured by arrest for any offense dropped very slightly from 68% to 66% between October 2011 and October 2015 while rates for felony arrests and convictions dropped further.

Of course they did. When you redefine a large swath of felonies to be misdemeanors, the number of people arrested for new felonies is going to drop. The number of arrests overall is also going to drop. Police are much less likely to make arrests for misdemeanors. In California, a police officer’s legal authority to arrest is reduced for misdemeanors, and the police are less likely to arrest people when there are minimal consequences for the crime. The “recidivism rate” deceases observed do not, without more, establish any decrease in criminal behavior.

The third link is to an odd report issued by DOJ’s National Institute of Justice near the end of the Obama Administration. It is titled Five Things About Deterrence, and it summarizes the view of one researcher, Daniel Nagin, on a subject on which experts can and do disagree.

“Deterrence” includes two different mechanisms, called general deterrence and special deterrence. General deterrence is the idea that if a particular misbehavior is known to be punished, fewer people will choose to do it. Specific deterrence is the idea that punishing a person for misbehavior makes that individual less likely to do it in the future.

Nagin is skeptical of general deterrence. He is entitled to his opinion, but there are studies by reputable researchers who have found a general deterrent effect from more severe punishment. (See, e.g., Kessler and Levitt, Using Sentence Enhancements to Distinguish Between Deterrence and Incapacitation, 42 J. Law & Econ. 343 (1999).) There is no consensus.

In any case, Mr. Gascón’s Special Directive on sentence enhancements did not address general deterrence. Instead, it claimed that the effect of sentence length on the recidivism of the individual criminal was positive and so strong that it outweighed the incapacitative benefit of preventing him from committing crimes (at least on anyone on the outside) during his time in prison. This gets into questions of specific deterrence, rehabilitation, and possible “criminogenic” effects of going to prison.

The “Five Things” document quotes a 2009 survey of the literature by Nagin, Cullen, and Johnson. That paper drew a careful distinction between prison versus non-prison sentences, on the one hand, and length of imprisonment on the other. As to the former, Nagin’s Five Things quotes the earlier paper saying (emphasis added):

… compared to non-custodial sanctions, incarceration has a null or mildly criminogenic impact on future criminal involvement. We caution that this assessment is not sufficiently firm to guide policy, with the exception that it calls into question wild claims that imprisonment has strong specific deterrent effects.*

Far from supporting Mr. Gascón’s claim that studies find a strong criminogenic effect of incarceration, the very paper he cites refutes it. Such an effect is either nonexistent (“null”) or “mild,” and the available evidence is too weak to be the basis for any policy.

But wait, there’s more. Even this assessment is for offenders whose offense is low enough on the scale that the choice is between imprisonment and something else, e.g., probation. Even the possibly “mildly criminogenic impact” was for prison as opposed to probation, not length of sentence for those definitely going to prison.

The sentence enhancement question is necessarily limited to length of sentence for those definitely going to prison. The length of imprisonment, as distinguished from the yes/no question, is called “the dose-response relationship,” and on that Nagin et al. found “there is little convincing evidence on the dose-response relationship between time spent in confinement and reoffending rate.” That is, there is “little convincing evidence” either way. There are few studies with mixed results, and some of the few are dubious in their methods.

The Five Things paper, and the much longer paper it relies on, do not support Mr. Gascón’s claim that eliminating sentence enhancements improves public safety.

The last link is to a report by the Vera Institute, another group with an anti-punishment orientation, regarding conditions within prison. None of its findings relate to the supposed criminogenic effect of the length of incarceration as such.

So that’s it. Despite Mr. Gascón’s pretension to be following “the science and the data,” he is unable to cite a single source that actually supports his claim.

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* Nagin et al. do not cite any examples of these “wild claims,” and I do not recall advocates of tough sentencing making any claims of a specific deterrent effect. Tough sentencing is regularly justified by its advocates on grounds of incapacitation, general deterrence, retribution, or a combination of these reasons. For example, the ballot argument in support of California’s Proposition 184 of 1994, the Three Strikes Law, argued for keeping murderers, rapists, and child molesters “behind bars where they belong.” That is an incapacitation argument with arguably retributive overtones, but it makes no claim of specific deterrence.