INTRODUCTION 770 I. DEFINING SUCCESS IN CRIMINAL JUSTICE 777 II. RECIDIVISM AS A SUCCESS METRIC 783 A. Defining Recidivism 783 B. Reporting Recidivism 790 III. BEHAVIORAL CHANGE AND DESISTANCE FROM CRIME 794 A. Understanding Change 794 B. Measuring Progress 801 IV. THE LIMITS OF RECIDIVISM DATA 806 A. Data Gaming 807 B. Premature Termination of Promising Programs 813 C. Risk Aversion 815 CONCLUSION: TOWARD MARKERS OF DESISTANCE 816 INTRODUCTION
The U.S. criminal justice system operates on an estimated annual budget of more than 180 billion dollars. (1) At any given time, the system employs more than 870,000 police officers, (2) 32,800 prosecutors, (3) an untallyable number of criminal defense attorneys, (4) and over 502,000 correctional officials. (5) It prosecutes more than fifteen million cases each yearc, and imprisons or supervises more than 6.6 million people. (7) Given the size of the criminal justice infrastructure, it is not surprising that policymakers and the public at large have pressed for more transparency about the effectiveness--or ineffectiveness--of various criminal justice practices and programs. (8) The fundamental question is whether the system is worth its significant costs in both resources and human lives.
While demands for accountability are both prudent and fair, determining how to measure effectiveness is difficult. Whether the focus of evaluation is on the success of system actors (such as police, prosecutors, or judges), participants (such as arrestees, defendants, or prisoners), or specific interventions (such as drug courts, probation supervision, or restorative justice programs); it is not always clear how success should be defined or measured. If the goal of the criminal justice system is to advance public safety and promote proportional accountability for wrongdoing (9) then the best metrics would be those that reveal how well system actors prevent criminal harm or restore community confidence that justice has been served. Such outcomes are difficult to quantify, however, and policy analysts often default to measurements that are easier to gather: number of arrests made, amount of restitution collected, or number of convictions secured. (10)
Those within the criminal justice system and those outside it rely heavily on another measure of success: rates of recidivism. Recidivism rates are one of the primary ways that legislators, policymakers, grant funders, media outlets, and criminal justice system actors determine whether specific criminal justice interventions have succeeded or failed. (11) As Joan Petersilia wrote in her authoritative article on recidivism:
Defining and measuring recidivism are ... central to answering the question "How well are we doing?" It has been said that recidivism rates are to the criminologist what the Geiger counter is to the geologist. In other words, they are the most objective overall basis we have for evaluating the performance of justice agencies. (12) While criminologists have developed nuanced ways of gathering and interpreting recidivism data, criminal justice agencies typically examine recidivism rates in isolation from other available measures of success. (13) On its face, recidivism seems a sensible metric: re-offense is what recidivism rates purport to measure, and a reduction in crime is undeniably a primary goal of the criminal justice system. Moreover, when a convicted person does not offend again, that is a success. Even so, there is a difference between commending those who abandon crime entirely--whether by virtue of a criminal justice intervention or otherwise--and saying that the criminal justice system fails whenever it does not fully transform law-breakers into models of perfect compliance.
One problem with recidivism is that it is a binary measure: either a person commits a new crime, or he does not. Absent from data that measure rates of recidivism is an appreciation for the nuances of human behavioral change. The addict who stops selling drugs (but shoplifts a few canned goods) and the batterer who again assaults his wife are both "recidivists," but there is a clear distinction between them. Recidivism as a metric is not sensitive to reductions in the severity or frequency of offending, even though such reductions often serve as markers of progress and indicate a reduction in harm caused to the community. (14) By over-relying on recidivism rates to gauge success, policymakers and system actors alike risk underappreciating change by individual defendants and undervaluing the criminal justice interventions that move people forward. Moreover, by looking only at whether past offenders have recidivated, rather than at how often and in what ways they recidivate, system actors risk missing clues about escalating dangers or underestimating the harm inflicted by ill-conceived interventions.
So, how should success and failure be measured when it comes to the criminal justice system and those in it? Much of that depends on what we are trying to measure and what resources we have available to capture data. While there are many ways to gauge individual and programmatic success, (15) this Article focuses on one particularly simple alternative to recidivism: markers of desistance.
Criminologists have long studied what makes people stop committing crimes. Studies have examined youth and adults at various life stages and have identified a myriad psychological, social, physical, and environmental factors that are correlated with desistance (16)--that is, the process by which people disentangle themselves from criminal behavior and connect to prosocial activities and associates. (17) While the path to desistance is not always a straight one, (18) the data by which sociologists track behavior often focuses on the severity and frequency of an individual's criminal behavior. (19) Serious "persisters" can be identified by their often frequent involvement in crime and sometimes by an escalation in their offense severity. (20) "Desisters," by contrast, can be identified by their sometimes instant, but more often gradual, termination of criminal behavior. (21) This more nuanced, academic approach to gathering and analyzing crime data has, for the most part, not translated into changes in the way criminal justice administrators measure and report rates of recidivism. (22)
When desistance is discussed in the legal criminal justice literature, it is often used as an antonym for recidivism, rather than as a description of the process by which one progresses toward the end-goal of complete compliance with the law. (23)
Some of the metrics gathered by criminologists--particularly intervals between offenses and offense severity over time--are easily ascertainable by reference to the recidivism data already collected and analyzed by the criminal justice system. While such data remain an imperfect measure of change, utilizing these "markers of desistance" would enable policymakers and criminal justice stakeholders to develop a significantly more nuanced picture of offenders' aggregate and individual behavioral change and of how criminal justice interventions positively and negatively affect that change. Rather than limiting the definition of "success" to those state interventions that (rather implausibly) claim to fully eradicate criminal behavior among some fraction of their participants, success should also be understood to include those programs that move people forward on the path of desistance. Similarly, by seeing desistance as a process, system actors might better discern both positive and negative behavioral changes in repeat offenders, allowing them to contextualize the statistical predictions of individual recidivism risk currently used by criminal justice agencies at all stages of the criminal process.
This Article speaks broadly to criminal justice scholars, administrators, and stakeholders but especially to those who lack specialized training in the statistical methods used by criminologists to study recidivism and desistance. It explains to a legal audience the limitations of relying on recidivism rates as a measure of systemic or individual "success" and encourages the adoption of desistance over time as an alternative measure. It does so for three reasons. First, it is relatively easy to do: markers of desistance can be easily derived from existing recidivism data. Second, focusing on markers of desistance increases the system's ability to accurately discern which criminal justice programs are improving offender behavior and which are causing greater harm. Finally, training system stakeholders to see success in markers of desistance, and not just in the absence of recidivism, can shape the way judges, lawyers, and correctional administrators employ the recidivism risk prediction tools that are increasingly being adopted by criminal justice agencies.
Part 1 describes the many ways recidivism is currently used to measure and predict the success or failure of programs and people within the criminal justice system. Part II dissects the concept of recidivism, examining the many ways in which it has been defined and measured and translating for legal audiences the meanings of recidivism rates as they are reported by program analysts. Part III explores how criminology and analogous fields understand the phenomenon of behavioral change and measure the success of programmatic interventions. In light of the mechanisms of behavioral change discussed in Part III, Part IV examines the problems created directly and indirectly by overreliance on recidivism data, including incentives for data gaming, the premature termination of otherwise promising programs for advancing public safety, and excessively risk-averse behavior by system actors. Part V concludes with a call for change in how policymakers and criminal justice system actors think about and measure success in the criminal justice system. It encourages administrators and policymakers...