Both sides of the political fence in the U.S. agree that mass incarceration isn’t working. It is expensive, discriminatory and has serious societal consequences. Crime has, in general, been trending down for decades (even in 2020, despite public perception) while prisons just keep filling up. The partisans may disagree on the best way to lower the prison population, but the good news is they agree it has to happen. The present system is unsustainable.

Credit: NYU Brennan Center

One way of reducing mass incarceration is to simply start ignoring certain laws. Some 80 percent of cases filed nationally are for misdemeanors. These are the types of crimes that are often victimless, but that can mess up the life of the person prosecuted for them. A few places have addressed this in the most straightforward way possible: by not automatically prosecuting these crimes. What has happened as a result? Studies have shown that these places reduced their prison populations without putting the public at risk. Crime did not go up. In fact, in many cases, it went down. And, surprisingly, often not just for misdemeanors. 

A seemingly radical idea

The consequences not just for the individual but for society and the economy begin well before someone is actually incarcerated. Simply being prosecuted, having a record, becomes a disadvantage for life. It can make it harder to get a job, to vote, to get a loan for an education or a mortgage for a home. Minor nonviolent infractions can leave one disadvantaged forever. They can effectively ruin a life. 

Rachael Rollins
Rachael Rollins

Rachael Rollins, the district attorney of Suffolk County, which includes Boston, was well aware of this when she did something that seemed radical upon being elected in 2018. The county stopped automatically prosecuting people for small crimes: minor drug possession, shoplifting, disorderly conduct and other nonviolent offenses. A study released a year later showed that this change prevented a large number of folks who were charged with these offenses from being funneled into the criminal justice system. But it also had a broader effect: violent offenses in Suffolk County went down by 64 percent, and even traffic offenses decreased by 63 percent. 

Why would declining to prosecute people for low-level crimes also reduce other types of crimes? The study, by the National Bureau of Economic Research, found that the key is keeping folks out of the criminal justice system. Doing so reduced the odds by 58 percent that these folks would engage with that system in the future. So, to be clear, this doesn’t suddenly empty out the prisons — it’s not retroactive — but it dramatically slows the flow of folks being incarcerated, which, in turn, reduces the chances that those people will commit future crimes. As the presently incarcerated end their sentences and leave, there won’t be the same flow of new prisoners coming in to replace them. It seems to me this is incredibly good news — both sides of the political divide should be happy.

I decided to call up the three authors of this study to see what they felt were the implications of their research on this policy. It turns out they were as pleasantly surprised by the results as I was. 

The authors of the study are Amanda Agan (Rutgers University), Anna Harvey (New York University) and Jennifer Doleac (Texas A&M University).

DB: Can you summarize your results for our readers?

AA: Our study found that, at least for certain defendants [mostly first time offenders], non-prosecution — not moving forward with charging an individual defendant — actually reduces the probability that that individual ends up back in the criminal justice system, and so reduces recidivism and reduces future criminal justice contact. 

We wanted to study this because there’s a potential tension: if we’re going to choose to not prosecute somebody, is this going to embolden them to go on to commit more crimes? Or is it going to kind of put them on a better path and allow them that second chance to potentially reduce their criminal justice involvement?  And we’ve found it’s the latter, that this is reducing recidivism in the future.

DB: What presently happens when these minor offenses are prosecuted?

AH: This is really important for your readers to understand: in most jurisdictions, when you’re arrested for a crime, that goes on to what is potentially a lifetime permanent criminal record maintained by the state criminal record agency, that potentially, depending on the state statutes, can show up to employers when they conduct a background check, and it can show up to law enforcement, police officers and prosecutors in the future. 

There’s really good evidence to suggest that [being prosecuted] changes people, the way you’re treated down the road, potentially, for a lifetime. What we’re studying are nonviolent misdemeanor arrests, which are, in most of the cases we study, later dismissed. What we’re finding is that defendants whose cases in which the prosecutors don’t prosecute them, they don’t receive a criminal record. And that seems to have a really beneficial effect.

DB: How did you, as the authors of the study, know for sure that it was leniency in prosecuting that had this effect? 

AA: What we were doing was a little different. We were taking advantage of the fact that in Suffolk County, the person who decides whether to charge you with a crime or not is basically randomly assigned to your case. You have no control over whether me, Jen or Anna is going to be the one that’s going to end up making a decision about whether to charge you or not. 

[For example], it turns out Jen is really lay-down-the-law. She’s really going to want to prosecute people. And Anna, Anna is super lenient, she really likes to give second chances, just kind of by nature. 

And so we’re using that luck of the draw, that some offenders happen to get Anna and others happen to get Jen. We try to understand what happens when you get Anna and you don’t get that criminal record. What is the effect on your future recidivism versus if you got that harsher prosecutor? 

DB: What kinds of offenses are we talking about?

AA: They’re all nonviolent misdemeanors like disturbing the peace, trespassing, some low-level kinds of theft or shoplifting, minor drug possession. There are also some more serious kinds of traffic or moving violations that move into the realm of criminality, rather than just citations or traffic tickets, that are going to kind of make up a majority of these nonviolent crimes that we’re talking about. 

AH: Misdemeanors are often things like driving with an expired registration, or driving with an expired license, driving with expired insurance — basically, driving without the right paperwork. Who doesn’t forget to renew stuff? 

AA: In a sense [this is] criminalizing poverty.  [Low-income folks] don’t have the time or resources to go and handle some of these problems.

As these researchers point out, once you’ve engaged with the criminal justice system it can be a slippery slope, so keeping folks out of it in the first place can have a huge knock-on effect. It prevents future crime.

AH: One of the things that we’re finding is that even though the cases that we’re studying are only these nonviolent misdemeanor offenses, when you prosecute a first-time nonviolent misdemeanor, offender, person, individual, they’re more likely to come back — not just on another non-violent misdemeanor offense, they’re more likely to come back on a violent offense and a felony offense. 

Charm City lives up to its name

Marilyn Mosby
Marilyn Mosby. Credit: Wikipedia

In March 2020 in Baltimore, State’s Attorney Marilyn Mosby tried a similar experiment initially prompted by the increased risk of Covid spreading in prisons. Her office would no longer prosecute a host of minor nonviolent charges: limited drug possession, prostitution, minor traffic infractions, misdemeanors and trespassing. This doesn’t mean all these things became legal, but it does mean that if you get arrested for them, you probably won’t be locked up. 

What happened? Well, no surprise, crime rates dropped suddenly. Which doesn’t mean folks stopped doing these things — only that they weren’t being prosecuted for them. But what’s interesting is that it wasn’t just those nonviolent crime rates that dropped. Violent crime dropped 20 percent too, and property crime dropped 36 percent. 39 percent fewer people overall got caught up in the criminal justice system, which is what you’d expect if some charges are not prosecuted. But, as in Suffolk County, it seems the reduction extended well beyond those nonviolent crimes. This also helps reduce discrimination, as it is mostly people of color who get caught up in the system. 

This past March, after the experiment proved to be successful, it was made permanent. When police realized these offenses were not being prosecuted they stopped arresting folks for them — for instance, there were 80 percent fewer arrests for drug possession. That allowed prosecutors to focus on violent crimes instead of these misdemeanors, which, according to some research, results in an increase in public safety. 

The cops were skeptical at first. The police commissioner expected crime to rise, but it continued to go down — even when it rose in many other big cities during the pandemic. Johns Hopkins University in Baltimore did a follow up study and found that of 1,431 folks who had charges dropped in this experiment only five ended up being arrested again, which is considered pretty incredible. 

Baltimore is now also following the example of the CAHOOTS program in Eugene, Oregon, previously written about here, by directing some calls about nonviolent incidents to the Baltimore Crisis Response, Inc., a behavioral health organization, rather than to the police. People in crisis get help from trained social workers instead of dealing with the police and risking the possibility of getting locked up. The police commissioner there has since come out in support of police not being expected to be social workers

It’s catching on

From NBC News: 

Michael Kahn, director of the Institute for Innovation in Prosecution at John Jay College of Criminal Justice, said he believed Mosby [in Baltimore] was the first prosecutor to permanently shift away from minor offenses. More will likely follow if they see that their policies did not cause crime spikes, he said.

“I would expect now that the dam has broken that in the next few months we will start to see folks follow once they have their arms around the data,” Kahn said.

Other cities are taking similar actions, some of which have been prompted by efforts to reduce jail populations during the pandemic. Seattle and Brooklyn stopped prosecuting low-level offenses after the pandemic hit. The prosecuting attorney in Seattle (King County) was quoted in the Washington Post as saying he’s not prosecuting these cases “because we did no good for people struggling with substance abuse disorder.” Los Angeles has also stopped prosecuting many drug possession and misdemeanor cases.

Why reduce mass incarceration?

Shouldn’t criminals be locked up? You know: If you can’t do the time, don’t do the crime?

No one is saying that violent criminals should be given the equivalent of a traffic ticket. This is about nonviolent offenses: minor drug possession, shoplifting, prostitution and even burglary where there is no confrontation.

From a purely economic point of view this prison system is costly to maintain — by one estimate, it costs the U.S. $182 billion dollars a year and it denies these minor offenders the chance to become productive citizens, benefiting the economy and society as a whole. Folks sucked into the criminal justice system, even for minor offenses, often end up earning less money than others. And, it doesn’t do what it’s supposed to do — past a certain point increased incarceration is less and less effective.

Credit: NYU Brennan Center

Focusing on keeping people OUT of the criminal justice system reduces the huge costs of mass incarceration while enabling communities and families to stay intact. It’s a virtuous cycle — keeping people out of jail keeps people out of jail. It also reduces the chances they’ll do things that put them in jail.

AH: We’re hoping that our study will give support to the notion that these policies are in fact protective of public safety.

DB: Is there a way to estimate the financial impact of these changes?

JD: I’m an economist. I’m very comfortable with the idea that there are going to be some costs, maybe not having some of these people on probation, or something’s going to lead them to commit more crime. And the question that I brought, coming into the paper was, well, how do those costs and benefits balance? 

But then it turns out, we’re finding all benefits! So not only is the court system not spending all of this time processing these cases, and having to shuttle this person through the legal system, all the lawyer hours and everything, but also we see a reduction in the likelihood that that person commits future crime and goes back to the court system. And prison is super expensive. So it’s all wins in Suffolk County.

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