A Commentary on Three Recent Publications: Part 2 of 3

In my last post, I gave a general summary and reaction of a forthcoming law review article suggesting policy changes to the criminal justice system.  Today, I follow up on that post by discussing a briefing by the Sentencing Project.


First of all, some background.  I learned of this through the Sentencing Law and Policy blog, which I follow regularly.  You can download the report I’m discussing here.  It’s much shorter than the law review article I discussed previously, I promise!

The main thrust of the report is that certainty, not severity, of imprisonment is what works to effectively deter crime.  As with the law review article I summarized, this article places public safety as the bedrock goal, which we should be attempting to achieve.  The report contains collected research from criminologists which all advance this sentiment: “severity of punishment will have little impact on people who do not believe they will be apprehended for their actions” (found on page 2 of the report).

This is, doubtless, true.  There is an issue nevertheless with focusing on certainty, which the author does briefly acknowledge.  The author suggests that increasing certainty of incarceration across the board may not be very effective; if your likelihood of getting caught for even minor crimes increases then the result may only be reduced stigmatization of criminal behavior.

My own argument differs.  I suggest you cannot have effective deterrence without both severity and certainty.  Does it matter much that I will be caught of stealing a candy bar should I think that the punishment will only be a slap on the wrist?  Of course it does not.  Take any minor offense where jail time is an unlikely outcome and you will again find that likelihood of being caught does not matter much.  A crime has to, after all, appear unattractive to the committing party.  A potential offender needs to believe not only that he will be caught but that being caught is a meaningfully bad thing he wants to avoid.

There is another problem with the report.  It rightly points out that the rationality assumption required by formal economic models of deterrence makes little sense when nearly half of all criminals are under the influence of mind-altering substances when committing crimes.  Yet, if we accept this, why would we expect a potential criminal to form an accurate probability assessment?  Both risk calculations (certainty and severity) require rationality as their cornerstone.  Economic models can tolerate isolated irrationality but they cannot tolerate 50% irrationality.  I fail to see how the author has distinguished certainty evaluation from the problem she accuses severity of having.

My biggest complaint about this report is different still.  This report presents a decent review of past criminological work showing that increased certainty also increases deterrence.  It presents data that severity alone has not been working as is evidenced by recidivism rates.  It presents a strong argument that our tax dollars are being spent on policies that don’t work very well to deter.  Yet it provides basically no solution to how we can change the current setup.  I ask, what would lead to increased certainty of being caught?  Is it smarter policing?  More community involvement?  Education reform?  All of those possibilities are suggested by the law review article I previously reviewed.  I think those methods have merit but are not without costs of their own.  It would be nice to see this report address that.  Regrettably, it did not.

I don’t want to diminish the value of this report.  It might get some people to listen and consider reform.  It might put statistics and data in the hands of people who are otherwise uninformed.  Nevertheless, it unnecessarily reduces the interdependence of severity and certainty.  It fails to acknowledge their symbiotic relationship and their mutual reliance on rationality.  I find that hard to overlook.  I do recommend reading it and using it for any data you might want … just don’t expect an airtight analysis.

I think the real value of this piece is the conversation it can be placed into.  It pairs well with the law review article in considering what might work to reform or “reimagine” criminal justice.  It gets us thinking, which is always a great place to start.  To that end, the article is actually quite helpful.  Yet there is another piece to the puzzle of reform: the public.

Getting a community (or the public in general) on board will present new difficulties.  In my next post, I will discuss that in some detail by using a recent Gallup poll to illuminate the issue.  Stay tuned!

-Zachary Cloud


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