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Spotlight: When we look at recidivism rates to evaluate reforms, we are looking for the wrong things
The First Step Act has been in the news, three months after it was signed into law in December. Last week, both NPR and the Houston Chronicle reported on the release of a seriously ill man from federal prison in Louisiana under the compassionate-release provisions of the law. Also last week, however, the Marshall Project reported that President Trump’s 2020 budget calls for only $14 million in funds in 2020 for the “new and innovative pilot programs” of the First Step Act that are meant to prepare incarcerated people for release. This was after no money was explicitly allocated for funding the law in 2019. TMP reports, “While nothing has been written in stone, Trump’s plan indicates what the White House considers important, and it may foretell political fights to come over empowering the law or leaving it toothless.”
The First Step Act sharply divided criminal justice advocates. Criticisms of the law have been of two major varieties. The first is that the law, after getting so much attention and energy as the first major attempt at decarceration and overhauling prison conditions in the federal system in decades, was ultimately extremely modest in its reforms—its sentencing reforms are not retroactive and contain numerous carve outs that left whole groups unable to benefit from early release. Worse still, it may have closed the door to other, more ambitions reforms that could have happened in its stead. Furthermore, the improvements in prison conditions that it mandated were for the most part, already in place as regulations for the Bureau of Prisons. The second major criticism is that the law actively harms by entrenching flawed and racially biased risk assessment tools. [Marie Gottschalk / Jacobin]
In Jacobin, Marie Gottschalk, a professor at the University of Pennsylvania and author of “Caught: The Prison State and the Lockdown of American Politics,” took a close look at the First Step Act last week. In Gottschalk’s view, “The greatest sins of the First Step Act are not its modesty.” Rather, “the legislation nicks the edges of the carceral state while bolstering disturbing trends in criminal justice reform.” While Van Jones described the law as the “rare clean bill” that “does no harm,” Gottschalk was adamant that this is far from the case: “Jones is wrong,” she said, “it does much harm.” [Marie Gottschalk / Jacobin]
Among Gottschalk’s concerns was that the First Step Act reforms “risked “embedding deep racial and class bias” into early-release decisions in the federal prison system,” as civil rights organizations put it before the bill’s passage last year. Specifically, Gottschalk focused on how the “First Step Act’s preoccupation with risk assessment bolsters a disturbing tendency to valorize recidivism rates as the key indicator of what the government and the public are receiving in return for the $172 billion” spent on the criminal legal system each year. Recidivism, Gottschalk elaborated, is a flawed and incomplete measure and focusing on it leads to focusing on—and funding—the wrong things. [Marie Gottschalk / Jacobin]
Gottschalk looked at the problems of recidivism as a public safety measure and measure of justice reforms’ effectiveness. “Recidivism is a notoriously slippery concept,” she wrote. There are a few significant problems with using recidivism as the measure of justice reform effectiveness. [Marie Gottschalk / Jacobin]
First, recidivism data are both under inclusive and skewed. In 2018, researchers Jeffrey A. Butts and Vincent Schiraldi looked at how a focus on recidivism undermined the purpose of community corrections systems i.e. probation and parole. As a measure, they wrote, recidivism is “a complex, bureaucratic indicator of system decision-making,” not a “a simple measure of individual behavior and rehabilitation.” It is “at least in part a gauge of police activity and enforcement emphasis and, because of differential policing practices in minority communities, using recidivism as a key measurement may disadvantage communities of color.” [Jeffrey A. Butts and Vincent Schiraldi / Harvard Kennedy School Program in Criminal Justice Policy and Management]
Recidivism is also an unsophisticated measure. It defines any criminal activity as a failure when the reality is that, for example, someone with a long history of committing burglaries could desist from that thanks to interventions that provide stability in housing, employment, or education. But if she were arrested for drug possession, that might be considered an example of recidivism when, in fact, it is better understand as part of a pattern of desistance. Sometimes recidivism data even includes rearrests or reincarceration for violations of probation or parole conditions—which can fall well below the threshold of criminal activity. [Jeffrey Butts and Vincent Schiraldi / Harvard Kennedy School Program in Criminal Justice Policy and Management]
What is the alternative? Butts and Schiraldi urged policymakers to instead use “measures focused on social development and community wellbeing” that “are more useful for evaluating the effects of justice interventions, and they are less likely to distort policy discussions.” In a piece discussing their research in the Marshall Project last year, they wrote that rather than asking about recidivism rates in the wake of reform efforts, “we should ask an entirely different set of questions about justice interventions.” These include: “Are we really helping people convicted of crimes to form better relationships with their families and their law-abiding friends? Are we helping them to advance their educational goals? Are they more likely to develop the skills and abilities required for stable employment? Are we helping them to respect others and to participate positively in the civic and cultural life of their communities?” [Jeffrey A. Butts and Vincent Schiraldi / The Marshall Project]
These questions look beyond the negative preoccupations of recidivism to consider the broader picture of how an individual with past criminal justice system involvement is now living her life. In doing so, they elevate that person’s potential, growth, and contributions over the ways they might fall afoul of unequally enforced laws. And in so doing, Butts and Schiraldi write, “they look beyond the “yes or no” of recidivism and focus on factors that we know moderate criminal behavior—social bonds, education attainment, employment.” [Jeffrey A. Butts and Vincent Schiraldi / Harvard Kennedy School Program in Criminal Justice Policy and Management]
Gottschalk pointed to the specific programs that focus on those, more positive factors, but are chronically underfunded, whether inside prisons or for when people return home. “Opportunities to participate in meaningful employment, education, and self-improvement programs,” she wrote, “foster safer, more humane, and less degrading prisons.” Those programs “are a public acknowledgment that people who are incarcerated are still citizens who do not deserve to be warehoused in degrading, abusive environments.” Yet they are chronically underfunded “thanks to the obsession with recidivism rates.” Similarly, the focus on recidivism and risk assessment, makes the First Step Act “more about catching a person doing something wrong” rather than guaranteeing the housing, health care, and other supports people need to “successfully return to their communities.” [Marie Gottschalk / Jacobin]
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