Can Criminal Justice Be Quantified?

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A cost-benefit analysis recommends early release for cooperative prisoners and behavioral interventions to deter future offenses, but critics will see such measures as being soft on crime

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There's an interesting study out from the NYU School of Law which buttresses the argument that America would save a ton of money down the road, and make life easier for many of its citizens, if lawmakers today were able to muster up the moxie to remodel criminal justice systems. It's a concept that requires political foresight and a patient public, which means most politicians and their constituents will blindly reject it, but I hope serious people everywhere take a long look at this.

The report is called "Balanced Justice," a joint project by the Institute for Policy Integrity and the Center for the Administration of Criminal Law, and it again urges policy makers to aggressively employ economic cost-benefit analyses when evaluating decisions about their criminal justice systems. "Public safety can be prioritized and even improved at a lower cost than traditional incarceration," the report concludes, "using techniques like behavioral therapy for young offenders, intensive supervision, or a new iteration of a drug court."

Details from the report: 

For example, in 2009, the Washington State Institute for Public Policy ("WSIPP") evaluated the effect of a 2003 law that increased "earned early release time" for offenders who exhibited good behavior in prison. WSIPP's cost-benefit analysis demonstrated that by allowing offenders to earn 'credit' for earlier release, the new law (1) shortened the length of prison stays by 63 days on average, which reduced prison costs; (2) decreased recidivism rates by 3.5 percent; and (3) and increased long-term earnings for released prisoners. Overall, the program generated a net social benefit of $1.88 per dollar of cost.

More details from the report:

The North Carolina Youth Accountability Planning Task Force worked on the project with the Vera Institute for Justice, an independent nonprofit organization dedicated to reforming criminal justice practices and institutions. They assessed the efficacy and cost-effectiveness of to transfering 16- and 17-year-old misdemeanants and low-level nonviolent felons to the juvenile system. Analysts determined that the plan's total cost to taxpayers would be $70.9 million per year, which included the costs of law enforcement, court administration, and other expenses.

On the other hand, the total benefits to taxpayers and to the juveniles affected by the program would be $123.1 million per year, consisting of cost-savings to the adult system, reduced costs of victimization, and the long-term benefits to society arising from having fewer youths with adult criminal records (such records markedly decrease employability and long-term earnings potential). Subtracting the costs from benefits, Vera and its partners concluded that the program would generate a net benefit of $52.3 million per year.

There are two main challenges that cost-benefit advocates face. One is practical. To achieve more rigorous results, you need to spend time and energy developing "hard, quantitative evidence" -- and that costs money. Garbage in, garbage out, right? From the report:

Significant gaps in the literature must be filled before robust cost-benefit analysis can be conducted for many criminal justice policies and interventions. Numerous public and private institutions are already dedicated to improving the body of scientific knowledge upon which criminal justice decisions can be made, but they need substantial financial support in order to broaden their findings and confirm the validity of preliminary results. The central reason why research gaps persist is a lack of adequate funding.

It's a chicken-and-egg problem. State and local governments, and the feds, have to invest in the research that will reveal where and how the future cost-savings will occur. But no one wants to spend money now on some long-term project. Why? That brings us to the second problem the cost-benefitters must face. Its a political problem. And mostly a partisan one. From the report:

Charges of being "soft on crime" can have serious political repercussions. To avoid this fate, politicians have adopted "get tough" stances on crime, favoring harsher penalties in the form of three strikes laws, mandatory minimums, and longer sentences. Anecdotal evidence and sensational headlines have driven this trend, and public support seems to affirm the longstanding conventional wisdom that being uncompromisingly "tough on crime" gets votes.

Thus, there are political disincentives to adopt new approaches, and supporting new evidence-based methods may be perceived to entail some political risk. Additionally, institutional constraints may act as obstacles to long-term criminal justice reform. Legislators may be reluctant to take actions when the benefits of those actions will not be felt until after the next election cycle; this is especially true in situations where those actions may generate short-term financial or political costs.

It's been 23 years now since George H.W. Bush used the infamous "Willie Horton" campaign advertisement to portray Michael Dukakis as "soft on crime." It's been nearly twice that long since the so-called "silent majority" took back the streets. Violent crime is down. But  generations of Americans have come and gone accepting the shibboleth that the easiest answer about criminal justice -- lock 'em up and throw away the key -- is the best answer about criminal justice.

The price we have paid for this lazy calculus is dear: our prisons now are teeming with inmates, the highest population in the world, and many of our states can no longer afford to adequately house them. Of course, many criminals  deserve to be there. But many do not. For years there has been a strong economic case for legalizing (and taxing) marijuana. And now, more broadly, there is a stronger economic case for keeping more criminals out of prison.

The NYU study represents a smart new way of looking at an old problem; an economic evaluation that strips away some of the emotion (and demagogeury) that surrounds any discussion of crime and justice. It's easier to be "tough on crime" when you can pay the price, right? But now we can't. And the collective poverty within our criminal justice systems isn't going to ease on its own. So bring in the economists! And let the stale, old law-and-order crowd step aside.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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