In this module, we read about the current crime and policy landscape nationally, in particular, recent crime trends and the growth in all parts of the cri

2

Irrational Criminal Justice Policy

A CENTRAL GOAL OF THIS BOOK IS TO CONTRIBUTE TO EFFORTS TO

improve criminal justice policy and to do so by showing how the sys- tematic use of evaluation research can lead to less bad policy and more good policy. The ultimate aim is to help place criminal justice policy on a more rational footing, one where it has a chance of providing the accountability and the effectiveness that the public expects of it. At present, and as detailed in subsequent chapters, too many criminal justice policies are ill founded, ineffective, or inefficient, or they lack sufficient evidence to support them. Put differently, we have too much irrational criminal justice policy. I argue that increased reliance on the evaluation hierarchy in all parts of the crimi- nal justice system and in the development and assessment of policy provides one critical platform for correcting this situation and fulfilling the public’s desire for effective government.

This chapter sets the stage for this argument and the subsequent chap- ters in several ways. First, it briefly introduces the evaluation hierarchy as a framework for critiquing current policy. The details of the hierarchy are discussed in Chapter 3, but a discussion here provides a foothold for understanding the context – in particular, the lack of accountability and effective criminal justice policies – that motivates this book. Second, it pro- vides a portrait of national crime and justice system trends, and, specif- ically, the dramatic increase in criminal justice populations and expendi- tures. This discussion serves to illustrate the stakes involved and to highlight the need for creating the types of research that can allow for accountabil- ity and evidence-based policy. Third, it describes some of the prominent factors that have been argued to influence criminal justice policy. This discussion highlights the fact that many barriers to research-based pol- icy exist. In so doing, it underscores the importance of institutionalizing

7

8 AMERICAN CRIMINAL JUSTICE POLICY

evaluation research as a critical part of an effort to place the criminal jus- tice system on a more rational – that is, a more accountable and effective – foundation.

The Evaluation Hierarchy and the Irrationality of Criminal Justice Policy

Imagine someone tries to sell you a used car. Before responding, you may well ask yourself five questions. The first question is, “Do I actually need a car?” Perhaps you do. But perhaps you do not. In some areas, having a car is practically a requirement for getting to and from work. In others, especially metropolitan areas, public transportation may suffice.

Assuming that you do need a car, the second question presents itself: “Is this the kind of car I need?” For example, if you have a daily two-hour commute, you likely would want a car with good gas mileage, so a large pickup truck might not be the best option, all else being equal. Even so, gas mileage may not be the only relevant consideration. If you are more than six feet tall, some gas-efficient cars may feel uncomfortable. In addition, your work may involve shorter trips and carting large equipment from one place to another. A compact vehicle may not be the best option in such cases.

If you determine that the car indeed is appropriate for your purposes, you then likely will ask a third question, namely, “What is its condition?” That is, how has it been used and how well has it been maintained? For example, if it is a manual-shift vehicle, did the person shift in a way that wore the clutch down? If so, you may need to pay for a new clutch soon. Was the car ever in an accident? If so, there may be problems not immediately evident that could surface and lead to many costly repairs. Conversely, if the owner supplies detailed records, including regular tune-ups, oil changes, and the like, you may have more trust that the car will be reliable and that it will perform in the way you expect.

Should you determine, upon inspection of the car, that it passes muster, you might well entertain a fourth question: “What do reviews about this type of car say about its performance?” For instance, are claims about the car’s gas mileage supported? How often are repairs typically needed? Put differently, how much can you trust that the car will get you where you want to go on a regular basis with minimal maintenance?

In the event that all of the preceding questions lead you to believe that the car is indeed worth purchasing, you typically will ask a final question: “Do the benefits of this car outweigh the costs, especially as compared to other cars or to other pressing needs that I may have?” Presumably, if another

IRRATIONAL CRIMINAL JUSTICE POLICY 9

car passed all of the previously mentioned criteria comparably well but cost less, you would go with it. Similarly, if you determined that some other pressing need was more important – say, payment for a medical procedure not covered by insurance – you might well pass on what otherwise seems to be a good deal.

This example is by no means accidental. Car ownership is widespread in America, and so such questions are far from academic. Even so, the reality is that most of us make similar sets of calculations about many decisions in our everyday lives. I work in a university setting and students typically need to take classes to graduate. But they do not need to take all of them. Rather, they will want to select those courses best suited to help them complete their major. They also will want courses that are taught well, and they will want to learn something as a result of taking them. At a more general level, by attending a university, they, or their parents, are proceeding on the assumption that the benefits of additional years of schooling offset the costs of not immediately entering the workforce.

Such calculations are the stuff of life and affect even our most mundane decisions. Each week, my son and I go grocery shopping and must select from what seems to be about fifty or more different types of toothpaste. We have determined (or, really, I have) that we definitely need toothpaste. We are not entirely clear why toothpaste helps, but we proceed on faith. We are pretty clear that we need to put the toothpaste on the toothbrush for it to have any chance of having an effect. However, we have not the foggiest idea which toothpaste produces the best effects. Does brand X produce fewer cavities? How about brand Y? Even if brand X is better at reducing cavities, perhaps it is not as good at preventing tartar buildup, which seems like a good thing to avoid. Perhaps it is a draw when it comes to whitening teeth. Is one brand better at reducing tooth sensitivity? Then there is the whole question of how well it freshens your breath. After making many assumptions about the relative benefits of one brand versus another, we then consider the cost of the toothpaste. Some toothpastes seem to do everything at once, but they also tend to cost more, and there is the concern that perhaps they do some things (e.g., cavity prevention) less well than others (e.g., tartar reduction). In the end, I am not at all sure we end up making the best choice. But, the steps we go through – that all of us go through in making decisions throughout the course of every day – involve a logic and sequence highly relevant to policy debates.

In particular, most of us employ an evaluation hierarchy in our decision making, especially if it involves serious financial investments. Indeed, viewing our everyday decisions as policies, and the evaluation hierarchy, as depicted

10 AMERICAN CRIMINAL JUSTICE POLICY

1. Needs evaluation: Is there a need for

the policy?

2. Theory evaluation: Is the

policy grounded in a clear or well-

established theory?

Yes

3. Implementation/ process evaluation: Is implementation

of the policy consistent with its theory or design?

4. Outcome and impact evaluations:

Is the policy associated with and

does it cause intended outcomes?

5. Cost-efficiency evaluation: Does the

policy achieve outcomes cost-

efficiently?

Yes

Yes

Yes

Yes

Consider continuing, expanding, or

terminating policy

Figure 2.1. The evaluation hierarchy. Adapted from Evaluation: A Systematic Approach, by Peter H. Rossi, Mark W. Lipsey, and Howard E. Freeman, 7th edition, 2004, p. 80. Used with permission from Sage Publications.

in Figure 2.1, proceeds as follows. First, we assess whether a need for a policy exists; this is a needs evaluation. Second, we then assess whether the theory underlying the policy is logical; coherent; and, ideally, supported by research; this is a theory evaluation. Third, we assess how well a policy is implemented; this is typically termed an implementation or a process evaluation. Fourth, we assess (1) whether the policy actually is associated with intended outcomes (this is typically termed an outcome evaluation) and (2) whether it likely causes the outcomes (this is typically termed an impact evaluation). Fifth, we assess whether the policy’s benefits outweigh its costs and whether the benefits, relative to costs, are substantially greater than those of another policy; this is a cost-efficiency evaluation. The first type of cost-efficiency evaluation is a cost-effectiveness analysis, which compares the costs of two or more policies aimed at achieving the same goals. The second type is a cost-benefit analysis, which compares the costs and benefits of two or more policies that have different goals. In a cost-benefit analysis, the impacts on goals are monetized (i.e., we assign monetary values to them) so that we can make apples-to-apples comparisons between two or more policies.

IRRATIONAL CRIMINAL JUSTICE POLICY 11

Each type of evaluation can be viewed as involving a particular question. In the car example, the five questions are: (1) Do we need a car? (2) Does the theory for selecting the car make sense? That is, are particular types of cars best suited, by design, to meet our needs? If so, what are the relevant considerations (e.g., appearance, comfort, gas mileage)? (3) Has the car been implemented well in the sense that it has been well maintained? If not, we can be reasonably sure that we may not obtain the benefits (e.g., low-cost transportation) that we want from the car. (4) Does the car actually achieve the impacts that we expect? Does it, for example, actually get the expected fuel savings, and is it as comfortable as reported? (5) Is the car the most cost- efficient way to travel from one place to the next or are there other options that would be as effective but cheaper? Alternatively, is there another, more pressing need (e.g., medical care) that, if addressed, would result in more benefits than would be gained by better transportation?

The basic logic of the hierarchy is that we do not typically want to proceed with a policy if the questions associated with each level of the hierarchy have not been adequately answered. Consider, again, a car purchase. We typically would proceed with buying a car only if we needed it. If we do need a car, most of us would buy one that fit our particular need (e.g., a compact car for commuting or a pickup truck for carting heavy equipment). Even then, we likely would not make a purchase unless we felt confident that the car had been well maintained and needed no expensive repairs. We would also be likely to refrain from a purchase if we learned that the car’s performance was or would be poor. For example, a car may be touted as getting thirty miles per gallon, but perhaps independent tests establish that, in reality, the true performance lies closer to twenty miles per gallon. Finally, most of us would hold back on buying a car that performs no better than another but costs twice as much; similarly, most of us would not buy a car when the money could be used to pay for a life-saving surgery that we need.

Needless to say, when we employ the evaluation hierarchy in our day-to- day lives, we may not make accurate assessments, and we may lack sufficient information to make good judgment calls. (In all likelihood, I have been using the wrong toothpaste for many years.) But that does not negate the importance of the hierarchy in guiding our decision making and helping us to arrive at better decisions.

Here is the catch – even though most of us proceed through the evaluation hierarchy in our day-to-day decision making, criminal justice policy typically proceeds without recourse to it. That is, quite simply, irrational. The pursuit of crime prevention and justice constitute critical societal goals. No one wants to be a victim of a crime. No one wants a society in which justice

12 AMERICAN CRIMINAL JUSTICE POLICY

is arbitrarily meted out. And, of course, no one wants to expend scarce resources willy-nilly without obtaining some type of return, ideally the most possible one, especially when the stakes are high.

The Policy Context and the Stakes Involved

A central aim of this book is to argue, through the use of the evaluation hierarchy, that many of the nation’s most prominent criminal justice policies lack a solid theoretical and empirical foundation and that the necessary ingredients for holding the criminal justice system accountable and making it effective do not yet exist. I elaborate on this argument in subsequent chapters. Here, however, I want to turn to the national criminal justice policy context to highlight some of the stakes involved in allowing criminal justice policy to be irrational.

Crime Rates

To begin, let us first focus on crime rates. Many different sources of data can be used to examine crime. For example, arrests and calls to the police frequently serve as the basis for establishing whether crime has increased, decreased, or remained stable. Many news accounts focus on such data. If the number of robbery arrests increases from, for example, 100 to 110, a news account may well report that crime is up 10 percent. That would be incorrect. Law enforcement data reflect two factors: crime and law enforce- ment behavior.1 Observe, for example, that a community’s true crime rate could decrease, but if the number of police officers doubled you likely would see a dramatic increase in arrests and possibly reported crime. So, a more accurate news account would say that arrests have gone up 10 percent and that the increase reflects increased crime, increased law enforcement activ- ity, or both.

If we want to determine what the true rates of crime are, it would be far better to conduct offender and victimization surveys.2 The first would allow us to determine how many offenders exist and how much crime they com- mit, while the latter would allow us to identify the total number of victims of crime. No large-scale, nationally representative offender surveys exist in the United States, though a number of small-scale studies exist. By contrast, the U.S. federal government has invested a considerable amount of money and effort into conducting a large, nationally representative victimization survey, titled, appropriately enough, the National Crime Victimization Sur- vey (NCVS). The first data collection for the study began in 1973 and today

IRRATIONAL CRIMINAL JUSTICE POLICY 13

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includes more than 60,000 households and the victimization experiences of persons ages twelve or older.3

When we examine the trends in violent crime (rape or sexual assault, robbery, and aggravated and simple assault), which typically seem to garner the most concern among the public and policy makers, we see that such crime remained relatively stable throughout the 1970s and declined in the early 1980s, as shown in Figure 2.2. Then, around 1986, it began to rise steadily, peaking in 1994 before beginning a steady decline during the next decade. The victimization survey entails the interviewing of individuals and so does not capture homicides. However, for that offense, law enforcement data tend to be relatively accurate; analyses of such data reveal that the trend in homicides during the same time period largely mirrored the trend for violent crime generally.4 When we turn to property crime (burglary, motor vehicle theft, and theft) – as depicted in Figure 2.3 and as measured by the NCVS – we see a steady decline over three decades.5 In short, except for the

14 AMERICAN CRIMINAL JUSTICE POLICY

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rise in violent crime from 1986 to 1994, crime has been stable or declining since 1973.

Correctional System Growth

On the basis of analysis of these trends, we might reasonably hypothesize that the criminal justice system would have increased modestly in the 1980s to early 1990s to address the rise in violent crime but that it otherwise would have remained stable and perhaps even decreased in size. Such a prediction would be wrong. Juxtaposed against the overall decline in violent and property crime has been unprecedented growth in the criminal justice system. The growth in corrections alone is striking, as can be seen in Fig- ure 2.4. In 1980, there were 1.8 million individuals under some form of state or federal supervision or incarcerated in jail or prison. By 2008, that number more than quadrupled, rising to 7.3 million.

By far, the biggest driver of that growth has been the increase in the proba- tion population, which has risen from 1.1 million to 4.3 million. Even so, the

IRRATIONAL CRIMINAL JUSTICE POLICY 15

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Figure 2.4. U.S. correctional populations, 1980–2008. Source: Bureau of Justice Statistics. 2009. Correctional Populations in the United States. Washington, D.C.: U.S. Department of Justice. Available online: http://www.ojp.usdoj.gov/bjs/glance/tables/corr2tab.htm (accessed December 15, 2009).

jail and prison populations increased at higher rates. For example, the num- ber of individuals in jail grew from 183,988 to 785,556, an increase of 327 per- cent. Prison populations grew even more, increasing from 319,598 inmates to more than 1.5 million, or 375 percent. That growth is striking given that jails and prisons typically cost considerably more to build and operate com- pared with the costs of probation and parole or various types of community supervision and intermediate sanctions. They also, for all intents and pur- poses, constitute permanent investments. For example, once a prison is built, it generally will remain in use for decades. So, any expansion in prison capac- ity essentially represents an indefinite commitment to increased prison costs. Why? When states decide to expand prison capacity, they cannot easily undo that decision if, at a later point, they determine that less capacity is needed.

Prisoner Reentry

The large-scale increase in the number of individuals incarcerated in jails and prisons translates into a new social problem – namely, the return of large numbers of ex-prisoners back into communities, what has been termed

16 AMERICAN CRIMINAL JUSTICE POLICY

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0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

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Figure 2.5. Recidivism of prisoners from 15 states released in 1983 and in 1994. Source: Langan, Patrick A., and David J. Levin. 2002. Recidivism of Prisoners Released in 1994. Wash- ington, D.C.: Bureau of Justice Statistics.

“prisoner reentry.”6 Annually, more than 735,000 inmates leave state or fed- eral prisons7 and undergo the process of transitioning from institutional life to a context in which they have few opportunities for employment and fre- quently suffer from a number of problems, including mental and physical health problems, substance abuse, family dysfunction, histories of physical and sexual abuse, and spotty educational and employment histories.8 Of par- ticular concern is the high likelihood that these individuals will recidivate. Figure 2.5 shows the rates of recidivism from one of the largest national studies ever conducted. It reveals that, in 1994, more than two-thirds (68 percent) of released prisoners were rearrested within three years.

Remarkably, after the large-scale increases in the correctional system and the spate of “get tough” crime policies in the 1980s and 1990s, this level of recidivism was higher than it was a decade earlier. (In 1983, “only” 63 per- cent of released prisoners were rearrested within three years.) It remains unclear why the increase occurred, although it may have stemmed in part from a decline in educational, vocational, and treatment programming in prisons during this time period.9 It also may have reflected more vigorous law enforcement activity. For example, numerous efforts were taken to target

IRRATIONAL CRIMINAL JUSTICE POLICY 17

drug crimes, which would have increased drug arrests. Indirect support for that explanation can be seen at the bottom of the figure – the percentage of drug offenders rearrested increased from 50 percent to 67 percent between 1983 and 1994. Observe that recidivism in the study was measured using rearrest. That means that the study included only those crimes for which a released prisoner was arrested. If measured using self-reported offending data, the recidivism rate assuredly would have been higher.

In short, America now faces a situation in which ever-greater numbers of individuals are returning to communities and almost all of these individuals continue to commit crime. The “glass half full” view of the situation is that considerable room for improvement exists, especially given the ubiquity of reoffending among people released from prison. The “glass half empty” view, however, is that we may not be able to make much of a dent in recidivism rates given the commitment to increased incarceration. Of course, it can be argued that incarceration helps society by reducing crime through incapaci- tation or general deterrent effects. So, even if recidivism rates remain high or increase, perhaps that negative is offset by the positive of overall decreased rates of crime. There is some evidence – although far from compelling – to suggest warrant for such optimism, as will be discussed in later chapters. Regardless, recidivism stands as a concern in its own right – few of us want someone who may reoffend moving next door to where we live.

Criminal Justice Expenditures

Putting aside such concerns, the stakes involved in criminal justice policy can be highlighted by turning to economic considerations. Given the growth in the criminal justice system, it perhaps should come as no surprise that criminal justice expenditures have dramatically increased as well, as is evi- dent from Figure 2.6. From 1982 to 2006, the United States increased its investment in police more than fivefold, from $19 billion to more than $99 billion. It increased its investment in corrections almost eightfold dur- ing the same time span, from $9 billion to $69 billion. And it increased its investment in the judiciary – which is required to process the large influx of new cases – from almost $8 billion to $47 billion. Adding all functions together, from 1982 to 2006, criminal justice expenditures rose by 500 per- cent, from $36 billion to $215 billion. Inflation accounts only for $30 billion or so of that increase.10

The burden of these new costs has largely fallen to local jurisdictions and to states, not the federal government. Figure 2.7 depicts the trends in criminal justice expenditures by level of government. The most dramatic increase,

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