Mimesis Law
22 February 2017

The Glass is Half Empty; Go Back to Jail

Mar. 25, 2016 (Mimesis Law) — Bill Otis was probably not friends with Stephen Covey. And Otis is probably a glass half-empty sort of person. Dr. Covey wrote that, “the way we see the problem is the problem.” Although he’s best known as a self-help and business author, the statement is applicable to many things. The essence of the observation is a mental phenomenon usually referred to as framing.

A couple of psychologists upended economic dogma with the conclusion, among others, that the way a choice is presented influences the way the choice is made. While it’s one of those things advertisers had figured out by the 1940s, it sometimes takes a while for what practitioners are doing to be intellectualized. Building off of what those two psychologists “discovered,” two other professors wrote a whole book on “choice architecture” and so-called libertarian paternalism. Tenure track requires neat-o inside jargon.

Recently, the U.S. Sentencing Commission released a report that concluded that half of the federal offenders studied were re-arrested within eight years. Those reading that summary probably had one of two reactions to it. Either it was good news that half of all offenders stayed out of trouble, or it was bad news that half of all offenders got into trouble again. Count Bill Otis in the latter group.

Framing the report as illustrating a disaster certainly appeals to those that view anything other than life plus cancer as soft on crime. To be sure, ideally society would like felons to learn their lesson the first time and never recidivate. But perhaps there is cause for framing the report as registering hope that something about the federal criminal justice system appears to work at least half the time.

The report went further than simply looking at re-arrest rates:

  • Over an eight year follow-up period, almost one-half of federal offenders released in 2005 (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions.
  • Almost one-third (31.7%) of the offenders were also reconvicted, and one-quarter (24.6%) of the offenders were reincarcerated over the same study period.
  • Offenders released from incarceration in 2005 had a rearrest rate of 52.5percent, while offenders released directly to a probationary sentence had a rearrest rate of 35.1 percent.

So, in reality, only one quarter of offenders did something serious enough to re-incarcerate them. That appears to be even better news. Although many people make it through their lives without being arrested, so it still suggests underlying behavior problems. Still this relatively smaller number is hopeful considering that the Commission broadly considered what counted as re-offending conduct:

The Commission also considered all recidivism events (including felonies, misdemeanors, and “technical” violations of the conditions of supervision) except the Commission excluded minor traffic offenses.

And the Commission explained what those original offenses were:

Over two in five (41.7%) federal offenders released in 2005 and included in this study group were released after receiving a conviction for a federal offense of drug trafficking. Other federal offenses which were common to this study group are fraud (13.6%); unlawful receipt, possession, or transportation of firearms (12.8%); robbery (4.3%); larceny (3.9%); and immigration (3.5%). All other offenses constituted the remaining 20. 3 percent.

Drugs and guns are the bread and butter of federal prosecutions; so, no real surprise there. It should be noted how less likely federal offenders were to recidivate than state-level offenders:

Compared to a cohort of state prisoners released into the community in 2005 and tracked by the Bureau of Justice Statistics, federal offenders had a lower recidivism rate. BJS found that 76.6 percent of offenders released from state prison were rearrested within five years. The Commission, using a comparable five year follow-up period and including only federal offenders released from prison (i.e., excluding those sentenced to probation or a fine-only), found the recidivism rate for these federal offenders was 44.9 percent.

Using reconviction as the measure of recidivism, BJS found that 55.4 percent of state offenders had an arrest within five years that led to a conviction. The reconviction rate for federal offenders over the same length of time was 26.0 percent. When recidivism is measured by reincarceration, BJS found a 28.2 recidivism rate for state offenders within five years that led to an incarceration, compared to 20.7 percent of the federal offenders in the Commission’s study.

Also of note, only about 2.5% of the studied offenders were classified Career Offender/Armed Career Criminal. And of that group, just about half recidivated. Plus, the study concluded what we all already know that age and criminal history remain the best predictors of future criminality. With the debate going on over the Sentencing Reform and Corrections Act (SRCA), this data is timely.

In the above linked post, Bill Otis concludes that the SRCA will lead to more crime. And in this post Otis argues the following:

—  The SRCA would release criminals not crimes.  The pertinent question for deciding whether to reduce an existing legal sentence is whether the criminal  is violent, not whether the specific crime for which he went to jail is.

— A huge number of potential releasees  —  much larger than the Post lets on  —  have violent backgrounds, whether or not violence was undertaken in the particular crime they were jailed for (often a bargained-down version of more menacing behavior).  Indeed, they can be violent men in ways unconnected to their drug dealing (e.g., Wendell Callahan, the early release/child killer from Columbus, Ohio).

—  As Sen. Cornyn and Sen. Grassley, among many others, have correctly pointed out in the past, the dealing of hard drugs is an inherently violent business.  The fact that there was no (or not much) violence in the particular offense of conviction scarcely means the person convicted did not or will not engage in violence, and still less that he is at “low risk,” as we are constantly told.

Of course the first statement is true with regard to retrospective relief. Yet, as the Sentencing Commission report demonstrates, a relatively small number of federal offenders get re-incarcerated. There are lots of potential reasons for this fact, but it certainly indicates that only a quarter of federal offenders do anything so harmful as to require re-incarceration. Further, it would be interesting to see if most of the recidivism was misdemeanor-type offenses rather than violent felony offenses. In any event, there is at least the possibility of finding better screening or supervision methods for those that will not recidivate.

Regarding the second statement, not everyone agrees that drug trafficking is inherently violent. But, on this score, Bill is at least partially correct. Because illegal drugs are, well, illegal, sellers and producers cannot turn to the courts or police to protest their interests in their product. So, it is inevitable that traffickers will have to, at a minimum, threaten violence. But that does not mean that the person engaged in that business is now and forever a violent person. If nothing else, the data demonstrates that OGs tend to age out of the life.

Some offenders may well be irredeemable. Charles Manson is a frequently used trope to that end. But there is evidence to suggest that’s not the case with a significant number of federal offenders. The fact of the matter unless we return to the old days where every felon is executed or impose LWOP on every offender, eventually, one day, felons will re-enter society. That is unless going forward federal sentencing policy will be directed towards creating the reality version of “No Escape.”

Given that fact, it behooves us to determine how best to use our public resources. For example, by greatly increasing the breadth of data collected, the NSA has been faulted for making the haystack bigger and thus the needle (a terrorist) more difficult to find. If the data shows that some offenders can be rehabilitated, then perhaps there are less costly methods to achieve the same end result. Or perhaps there are specific elements of the federal system responsible for better outcomes that can be adopted by states. Or perhaps it will turn out that positive outcomes are the result of randomness, and we can divert resources away from pre-trial programs. But at least for the time being, the data in the report suggests possibilities.

Ultimately, the specifics of the SCRA might not be the best policy for the feds. And it may not represent the best type of reform state-level crime, which typically involves more crimes of violence. And, of course, this is all tempered with what is hopefully an obvious disclaimer that we need to incapacitate some people for significant lengths of time. (Charles Manson!) But we can look at the glass half full when potentially good news arrives on the doorstep; not every offender is a criminal for life.

3 Comments on this post.

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  • Jay
    25 March 2016 at 10:11 am - Reply

    Don’t prosecutors get shunned for life for criticizing Otis?

    • shg
      25 March 2016 at 10:18 am - Reply

      He won’t be invited when Otis gets sworn in to the Supreme Court, that’s for sure.

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