The problem with reducing reliance on incarceration: A commentary on Vera’s “new paradigm” on sentencing

The United States should move away from incarceration and ultimately work toward a system that creates “real safety,” according to a new, widely circulated report from the Vera Institute of Justice. In the report, the authors claim that severe sentences do not deter crime nor help survivors of crime heal, and therefore are not achieving their intended purpose. However, the argument seems to be rooted in emotion rather than facts. The research actually presents a more nuanced picture.

The controversy regarding incarceration is not new, and has remained a major topic of debate in recent years. Clearly, there are many different opinions regarding the utility of incarceration and its effectiveness, many of which are emotionally-driven and not rooted in facts. Rather, the research on incarceration presents a very nuanced picture. It is simply naive to think that any one policy would be 100% effective or 0% effective, and these types of “all-or-nothing” arguments are often rooted in emotion rather than facts.

In this post, I’ll give an overview of the lengthy report’s executive summary and give my thoughts regarding their key points. Stay tuned for part two of this post, where I will perform a deeper assessment of the report in its entirety.

A New Paradigm for Sentencing in the United States

A New Paradigm for Sentencing in the United States” by the Vera Institute focuses on sentencing reform efforts as a way to reduce reliance on incarceration. Part of the sentencing reforms that are suggested include reducing arrests, leveraging prosecutorial discretion, enacting bail reform, and expanding the number of people eligible for diversion programs in lieu of incarceration. They argue that this would all be consistent with public safety.

The report begins by providing a review of the history of sentencing in this country, summarizes some of the research, offers new guiding principles for legislators to consider in lieu of the current focus on deterrence, retribution, and incapacitation,  outlines seven key sentencing reforms in line with these guiding principles, and models the impact of these reforms on public safety and incarceration.

Goals of the Criminal Justice System

The goals of the U.S. criminal justice system have historically been centered around different purposes of punishment, including retribution, deterrence, incapacitation, and rehabilitation. Retribution includes the offender “getting what they deserve” via punishment, and the goal is to restore the balance of moral order. Deterrence refers to the idea that people will avoid crime if they believe the harms outweigh the benefits; therefore, the severe punishment is thought to deter future crime. Incapacitation refers to the long-term confinement of criminals and isolates them from their communities, physically preventing them from committing crime. Lastly, rehabilitation is when offenders are able to reflect on their prior actions, learn from them, and ultimately grow into better people who abstain from crime.

All of these goals of punishment are important to the criminal justice system in different ways, but the relevance of each one can vary a lot based on context. When it comes to improving public safety, policies that promote deterrence, incapacitation, and rehabilitation all can be helpful, but to varying extents depending on the situation and individual involved. Another priority is to help victims and families of victims feel safe again in their communities, which is often achieved through retribution. It is not necessarily true that any one goal is “better” or “more important” than another. It simply just depends.

Yet, according to Vera, “we must move away from retribution, deterrence, heavy reliance on incapacitation, and rehabilitation as the cornerstones of sentencing theory, policy, and practice, as the evidence shows they do not deliver safety and satisfaction.” They follow with some sweeping claims that that severe sentences do not deter crime, retribution does not help survivors of crime heal, rehabilitation best occurs in the community, and that our criminal justice system overestimates when incarceration is needed. While these snippets of research make their argument seem convincing, they are grossly oversimplified, and the data is not as straightforward as they make it seem. A deeper dive into the research shows a lot of room for nuance regarding the tradeoffs between public safety benefits and potential harmful effects of incarceration.

The Tone of the Report

One of the first things that jumped out when reviewing this report is that the tone comes across as biased aand leaning toward a certain narrative, even before any data were presented. Further, the findings from prior literature appeared “cherry-picked” and carefully placed to emphasize certain findings.

Considering that many people do not have the time or expertise to critically assess the entire 80-page report, let alone dive into the past research on this topic, it is very likely that laypersons will take these findings at face value. This is particularly evident when reviewing the main summary provided on their website, which is probably the most widely read version of the report’s findings. The summary is crafted in a way that oversells controversial findings while omitting a lot of context, however, one would not necessarily notice the missing context without taking a deeper dive into the report. Unfortunately, this is a concerning trend with different organizations, researchers, and advocacy groups — where findings are presented in a way that is purposefully misleading, but convincing enough that many people don’t question the findings.

Secondly, the report is rife with emotional and inflammatory language that is informed by subjective opinions rather than facts. This type of language is meant to stoke emotions and outrage, which biases the reader toward a certain type of conclusion before the empirical data is even discussed. For example, the executive summary includes very dramatic, emotional statements that compare incarceration to Japanese internment camps and Jim Crow laws. They follow this statement with an urgent call to action, insinuating that “we have an opportunity now to change course.”

Before even getting into the data analysis section of the report, this reads almost exactly like an advertisement. In other words: they are selling a narrative (i.e., their “product”) and try to use convincing, persuasive language to stoke emotions in the audience that subtly encourages people to support their narrative (i.e., “buy” their product). Similar to advertising, the persuasive language purposefully tries to convince the readers (i.e., “consumers”) that they have a major problem that will only get worse if they don’t take action. But then, the persuasive language shifts to a tone of hope, akin to, “if you buy this product, it will solve your problem.” In other words, advertisements typically tell a story about a problem that needs to be solved, and then provide an urgent call to action to “fix” that problem — in other words,¬† you should buy what this company is selling. We know about persuasive advertising and how much it can sway one’s opinion and decisions to buy (or not buy) a certain product. So, the fact that the Vera report reads so similar to an advertisement is very concerning.

Accuracy of the Literature Review

When it comes to the actual research cited by Vera, the first thing worth mentioning is that offenders are heterogenous and will respond to incarceration in different ways; it simply does not make sense to say that sentences always or never deter. Yet, Vera seems to imply that incarceration is never an effective deterrent despite the fair amount of research suggesting that prison does effectively reduce future crime for some people. There is a place for community-based sentences for some lower-level or first-time offenders, though there are many people for which this is not appropriate. This is particularly true for violent and/or repeat offenders, who are more likely than non-violent offenders to recidiviate. Thus, the Vera report’s findings seem oversimplified at best and disingenous at worst.

For people who are incarcerated, Vera recommends capping prison sentences at 20 years for the most serious offenses. This again seems like an arbitrary number. Even among those deserving prison time, there is variation among them. Likewise, there is variation in how much time they should serve. It seems too broad to simply cap sentences at 20 years, considering that we know people will respond to prison differently and some will require more time than others. The research on incarceration length and recidivism has grown somewhat in the last decade or so, and there is considerable evidence showing that lengthier prison sentences might be more effective in reducing recidivism among serious felony offenders. For more information on this research, check out CJLF’s recently-published research review on the topic. Official data collated by the Sentencing Commission also suggests that lengthier prison terms are benefical for decreasing recidivism among federal offenders after release.

Another thing worth noting is Vera’s suggestion that many people can be rehabiliated in the community. For some reason, community-based alternatives to incarceration are often touted as effective in reducing recidivism, but the “research” cited for these claims is not all that rigorous. For a better understanding of some of that research, check out my previous articles dissecting the effects of violence interruption programs (sometimes referred to as community violence intervention programs, gun violence reduction programs, etc.), as well as my review of California’s similarly-themed Prop 47 programs.

Conclusion

There is a lot of room for nuance regarding the tradeoffs between public safety benefits and potential harmful effects of incarceration. Offenders are heterogenous and will respond to incarceration in different ways. It simply does not make sense to say that sentences always deter or never deter. When examining the research on the impacts of imprisonment, it becomes obvious very quickly that the actual quantified costs and benefits of incarceration depend on many factors. Therefore, to claim that incarcration is 100% effective or 0% effective would be oversimplified at best and disingenuous at worst. Unfortunately, Vera’s report reeks of this.

This post gave an overview of the Vera report’s argument that severe sentences do not deter crime or help survivors of crime heal, and that the sentencing system overestimates when incarceration is needed for public safety. Unfortunately, these findings are oversimplified and missing a lot of context. Stay tuned for part two of this post, where I will perform a deeper assessment of the report in its entirety and review the specific research cited by Vera.