By JSP Team

It was the mid-1970s and as I sat in my graduate classes at the SUNY Albany School of Criminal Justice, the debate raged on regarding if deterrence worked. There was not a strong body of research and belief ruled the day. Al Blumstein who had wisely counseled we needed to build more prison beds to accommodate the demographic bulge when the baby boomers hit the crime prone years could never have imagined that the country would go on the insane building campaign that lasted for over twenty years. Fueled by a media needing hot stories and public policy makers who did not understand demographics and thought a crime wave was underway, the best campaign promise for political candidates became “get tough on crime.” It was clear that feminism was causing women to become more criminal and longer sentences for even minor offenses was the way to stop the crime wave that never was. Data, why bother to look at data?

Thirty years later we have more and better research. And yet we continue to let “belief” rule the day. Media pundits like Rush Limbaugh continue to influence the public debate. Are we really still arguing about the efficacy of deterrence?

Jeffrey Toobin’s article, The Milwaukee Experiment published in the New Yorker, May 11, 2015, brilliantly lays out the current state of this debate. Toobin (and if you have not read his book, The Nine, you are missing out) describes how John Chisholm, District Attorney in Milwaukee County, opens his office’s practices to be studied by the Vera Institute so he can learn about possible ways to be even more effective. Anyone who works in the criminal justice system for a reasonable period of time can not help but notice convictions and even jail and prison time do not seem to deter many people from committing another crime. Most front line criminal justice practitioners quickly come to see that many of the people who churn through the system are victims in their own right and are in need of help not more punishment. Some even look to other systems like public health and note that they use strategies other than punishment to get behavior change.

Whether it is the law enforcement officer on the street, the prosecutor, public defender, judge or probation officer everyone grows frustrated by the revolving door of what Chisholm rightfully labels the “irritating defendants.” The defendants and offenders who are not a great threat to society but clog the criminal justice system. (Perhaps we could look at our European counterparts and figure how it is that they manage these people in the community and not in the extremely expensive criminal justice system…or we could just look at the research and maybe follow it…)

Disturbed by the data on disproportionality, Chisholm’s office began to experiment with ways to address the issue. Like other thoughtful prosecutors across the country, Chisholm uses research and data as one tool to help provide him the fullest picture of ways in which his office can improve.

And let’s be clear, this is not a political issue. While Chisholm is a democrat, his republican counterparts (one of my favorites being Dan Satterburg, Prosecutor in King County in Washington State) are also studying and using data to develop options that they hope will provide a more fair, equitable and efficient criminal justice system. Yes the fact is most prosecutors would like to focus their time on the seriously violent defendants who most threaten our communities not on the petty offenders who are “irritants.”

Whether the issue is what Toobin focuses on as a criminal justice system that “fails African- Americans,” the fact that US jails and prisons are now housing absurdly high levels of the mentally ill or the revolving door of low level drug offenders, smart prosecutors use all tools at their disposal. Not the least of which is research. Ironically they don’t need research to tell them that deterrence does not work with the irritants. Their day-to-day experience tells them that these people would like to avoid jail and prison but threats of more extreme punishment fails to deter them. Behavioral change does not come from threats but from rewards. We only have to look to the medical literature that is grounded in data and research to understand this. Remember what we learned in the HIV/AIDS epidemic? People change difficult patterns when they are rewarded and supported, not punished.

This is not to say that some of the conservative pundits are wrong when they say violators must be held accountable. What they get wrong is that the hardest type of accountability is not sitting in a jail cell but changing your every day behavior. Chisholm’s program is asking low-level offenders to do something much more difficult and in the best interest of our communities. Changing the behaviors that get you into trouble is the long-term solution not punishing you yet again for the same failed behavior.

Deterrence works well on the law abiding but not so much with those who have criminogenic thinking patterns or who are living in a world where there is no support for developing new behaviors. Saying that public officials who use data and research to evaluate the best course of action are foolish is foolish. We need criminal justice practitioners who use all the tools our toolkit has to offer.

And just maybe before I die this country will end this pointless debate about deterrence and unite to achieve a future where we only spend public dollars to incarcerate the most serious offenders and use the rest of our precious public dollars to help the many people who commit minor offenses to change their behaviors. Maybe, like the rest of the developed world, we can reward criminal justice practitioners for finding ways to support people to change their criminal behavior not just punish them for it. And not to be too radical but maybe not see data as the enemy but as a useful tool.

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