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National Review

Progressives are overreacting to a surprising police study

Every year, something like 13 million misdemeanor charges are filed in the United States. These charges, ranging from traffic violations to serious assaults, may be less striking than crimes, but they are the main way in which Americans experience the criminal justice system. We prosecute misdemeanors because, among other things, we want there to be fewer of them and we believe the prosecution prevents a repeat offense. But a highly successful recent newspaper makes a surprising claim to the contrary: prosecuting illicit offenses actually increases the likelihood that they will offend again. The newspaper was announced by defenders of progressive prosecutors who used their position to unilaterally enforce reforms to the criminal justice system, including the refusal to prosecute many offenses. Boston DA Rachael Rollins, who provided the data for the study, said this confirms the wisdom of his approach. The same happened with other reformers, such as Chicago area attorney Kim Foxx and San Francisco district attorney Chesa Boudin. Policymakers, however, must exercise caution before reaching such broad conclusions. The document can be read just as easily to endorse more modest reforms – especially keeping in mind the long-established criminal justice principles on which it is silent. The article is the work of three researchers: Amanda Agan of Rutgers, Jennifer Doleac of Texas A&M and Anna Harvey of NYU. Doleac and Agan previously published research that defies the political preferences of progressives, so their new discoveries were probably not motivated by the desire to achieve a politically convenient outcome. To conduct the study, the three obtained data on all criminal cases reported in Suffolk County (where Boston is located) between 2004 and September 2018. They analyzed the relationship between whether a crime was prosecuted and whether it was subsequently reported, indicating that he was a repeat offender. The effects are staggering: not being prosecuted for a misdemeanor reduces the likelihood of a future misdemeanor complaint by 60 percent and a future crime complaint by 47 percent. It also significantly reduces the likelihood of future violent crimes, motor vehicles and disorder / theft, although not drug offenses. In other words, the prosecution not only does not prevent subsequent crimes, but increases the chance of a repeat offense. The authors of the article suggest that this is because any deterrent effect is outweighed by the effects on offenders’ job market prospects. Unemployment can lead to crime and prosecution can increase the chances of someone becoming unemployed. It also creates a criminal record, making the offender less employable and therefore more subject to crime. How did the researchers arrive at these conclusions? To understand how the prosecution affects the risk of recidivism, we cannot simply compare prosecutors and prosecutors to see which ones commit the most crimes. A person may not be prosecuted precisely because he is not considered a risk – there are confusing variables determining both of which we must control. To circumvent this problem, the article uses an “instrumental variable” that is not correlated with these confounding factors. All misdemeanors charged in Suffolk County are indicted by an assistant public prosecutor (ADA). Using the other cases of each ADA, the authors construct a measure of their “leniency”, that is, their propensity to prosecute a specific offender. Most of the time, ADAs seem to agree with the lawsuits – they would normally sue about 70% of cases and, in general, would fall by about 20%. But about 10 percent of the time, they vary in their inferred leniency. The attribution of these 10 percent of offenders to ADAs of varying leniency becomes a source of randomness. What this means is that most of the article’s results apply to these “marginal” offenders. Failure to prosecute all misdemeanors will not cut everyone’s risk of offending in half, but refusing to prosecute the marginal misdemeanor – the one between prosecution and non-prosecution – greatly reduces your chance of recurrence. At the end of the article, the authors generalize from these marginal offenders. They found that non-prosecution has a big effect on all offenders, an average reduction of about 15% in the risk of recidivism on average. The effect is more concentrated among those who were normally prosecuted: being prosecuted, write the authors, made them much more likely to recur. Strangely, the effect on those who are not normally prosecuted is indistinguishable from zero. If the ADAs had sued those who would not normally do so, there would have been no medium effect on their future propensity to offend. When I asked Doleac about this discovery, she suggested that this may reflect the ADA’s judgment on guilt: The people most likely to reoccur may also be those with whom ADAs are most tolerant – young people, the mentally ill, etc. – well-adjusted adults who have made a mistake – are those for whom ADAs are less sympathetic, but for which prosecution can have a large and negative impact. This suggests, in Doleac’s view, that there is a fundamental difference between guilt and risk. For me, this also indicates that ADAs are not great judges of the effects of their process choices. There is a second important detail that the authors address, but that has been overlooked in some comments on the article: most of the non-prosecution effect that they measure is the result of primary offenders, who become much more likely to commit crimes if prosecuted. . On the other hand, prosecuting repeat offenders 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 finds that a small, crime-prone population is responsible for most crimes. For those outside that population – including many primary offenders – the prosecution is unlikely to stop them from doing something they wouldn’t do anyway, but it can have adverse effects that push them into crime. So, should we prosecute misdemeanors less? We cannot draw a very dramatic conclusion from a county study, no matter how well designed. And although this depends on the most recent statistical techniques, we must always be cautious with the discoveries that can only be reached through extensive statistical inquiries. The sheer complexity of the instrument the paper uses, combined with the very large effects it encounters, should temper the enthusiasm – there are simply too many degrees of freedom for the researcher not to do so. That said, we can cautiously conclude that the best evidence says that the marginal misdemeanor should be prosecuted less often. But if the ADAs are bad at judging the effects of their accusation, then we should not assume that they are good at differentiating the marginal offense from the future serial offender. Therefore, if the results of the study are wrong or if the ADAs misjudge how the prosecution will relate to the future offense, we must be careful not to give them too much leeway to decide who is or is not a marginal case. Instead, we can offer a rule of thumb: when in doubt, make a mistake and choose not to prosecute the crimes committed for the first time. Diverting these offenders, with the threat of more serious punishment if they reoccur, could help clean up the lawsuits and minimize crime. It would also free ADAs to focus on recurring misdemeanors. Targeting repeat offenders would mitigate the risk of misuse of diversion for the first time, making it clear that a “second chance” will not be followed by a third, fourth, fifth and so on. Research on California’s “three-strike law,” for example, indicates that increasing punishment for repeat offenders can have a powerful deterrent effect. The above approach is different from the idea that we should, in general, prosecute contrary offenses much less – a valid interpretation of the article’s conclusions, but not necessarily the correct one, for two reasons. First, deterrence is not the only reason to prosecute a criminal. Supporters of not prosecuting misdemeanors tend to invoke “victimless” crimes, such as drug possession and prostitution. But misdemeanors can also include crimes like simple assault and car theft – crimes that harm others. These crimes reasonably arouse a demand for retributive justice. It offends our moral sensibility to think that a person who commits a serious attack, but not a criminal, can get away with it. Second, systematic reductions in leniency can affect the decision-making of all criminals, increasing their propensity to offend in the long run. The article shows that Rollins’ move towards non-accusation of misdemeanors has not increased counter infractions in total, but the data he uses represents only the period between his election in January 2019 and March 2020, when the coronavirus crisis it started. It is quite possible for criminals to adapt and the misdemeanor will increase in the long run. Changes in general policy can lead to an increase in crime. California’s rise in 2014 to the limit for criminal theft, for example, predictably led to an increase in theft in the city, indicating that offenders change their behavior in response to these changes. Being face to face with the justice system can be time-consuming and exhausting and can, on the margins, increase rather than reduce a person’s propensity to offend. Even those of us highly concerned with public safety must be interested in creative solutions that minimize crime and disorder. At the same time, policymakers should not be too hasty – as some have been in a hurry to evict police departments and cut back on the use of more serious accusations. Good research is the basis of good policy, and that research makes a valuable contribution to public security policy. But we have to be careful where we go with this – careful changes to the edges are always safer than general changes.