As Scott Greenfield properly points out, I am big on empiricism at sentencing, particularly the use of actuarial data, including age, race, and gender. See Scott H. Greenfield, Prisons, Off The Hook (November 16, 2014). In a forthcoming article in the Federal Sentencing Reporter (which I have shared with Scott but asked him to withhold until publication), I will develop my thoughts further.
Nonetheless, using his powerful analytical skills, Scott now poses an important question: For those like me who push empiricism, where is the empirical analysis of the failure of prisons? He answers his own question. In a response to a comment, Scott cites to Paul Gendreau and Claire Goggin, The Effects of Prison Sentences on Recidivism, Corrections Research, Department of the Solicitor General Canada (1999).
Here is the executive summary of that article:
The use of prisons to control crime has increased in frequency in the last decade. Most recently, mandatory minimum sentencing policies have gained widespread popularity throughout the United States, severely limiting judicial discretion in sentencing. The principle rationale for mandatory minimums is the belief that length of time in prison acts as a deterrent to future recidivism.
Three schools of thought dominate the area. The first is that prisons definitely suppress criminal behaviour. Given the unpleasantness of prison life and the negative social stigma associated with incarceration, these should serve as deterrents to later criminal behaviour. The second, the “schools of crime” viewpoint, proposes just the opposite, that is, that prisons increase criminality. By this account, the barren, inhumane, and psychologically destructive nature of prisonisation makes offenders more likely to recidivate upon release. The third school of thought, which we label the “minimalist/interaction” position, contends that the effect of prison on offenders is, for the most part, minimal. This view states that prisons are essentially “psychological deep freezes”, in that offenders enter prison with a set of antisocial attitudes and behaviours which are little changed during incarceration. This perspective also suggests that lower risk offenders may be more adversely affected by greater lengths of incarceration through exposure to an environment typically dominated by their higher risk, more hard core peers.
Fifty studies dating from 1958 involving 336,052 offenders produced 325 correlations between recidivism and (a) length of time in prison and recidivism or (b) serving a prison sentence vs. receiving a community-based sanction. The data was analysed using quantitative methods (i.e., meta-analysis) to determine whether prison reduced criminal behaviour or recidivism.
The results were as follows: under both of the above conditions, prison produced slight increases in recidivism. Secondly, there was some tendency for lower risk offenders to be more negatively affected by the prison experience.
The essential conclusions reached from this study were:
1. Prisons should not be used with the expectation of reducing criminal behaviour.
2. On the basis of the present results, excessive use of incarceration has enormous cost implications.
3. In order to determine who is being adversely affected by prison, it is incumbent upon prison officials to implement repeated, comprehensive assessments of offenders’ attitudes, values, and behaviours while incarcerated.
4. The primary justification of prison should be to incapacitate offenders (particularly, those of a chronic, higher risk nature) for reasonable periods and to exact retribution.
For now, my response to this article and Scott’s larger point is muted. Suffice it to state that for the utilitarian judge like me, and keying upon 18 U.S.C. § 3553(a)(2)(C) commanding that the “court, in determining the particular sentence to be imposed, shall consider . . . the need for the sentence imposed . . . to protect the public from further crimes of the defendant . . . .,” I am in general agreement with the authors of the study* that the primary goal of sentencing ought to be incapacitation, with a dollop of retribution thrown in for good measure. As a matter of fact, I believe that an empirical approach to sentencing may allow us to refine our decisions about offenders who require longer incapacitation versus offenders who require shorter prison sentences (or perhaps none).
In summary, thanks to Scott for his thoughtful views on this subject.
*I note that the article relies on data that is fairly old–86% of the studies examined in the meta-data analysis were from the 1970s.