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Is prosecution counter-productive? New US research says it can be

Penelope Gibbs
09 Apr 2021

There is a strong belief that criminal sanctions reduce crime. But a new study from the USA suggests the opposite is the case for minor crimes. 80% of cases processed by the US criminal justice system are “misdemeanours”. Misdemeanour offences include minor criminal damage, “disorderly conduct, disturbing the peace, possession of small quantities of prohibited substances, trespassing, and driving without a valid license/registration/insurance”.  In some states you can be prosecuted for actions which would never see a court in England and Wales.

But the tide is turning in the States away from prosecution for non-violent misdemeanours. The criminal justice reform movement, fuelled by Black Lives Matters, has campaigned for changes in prosecution policy and for more liberal District Attorneys (state prosecutors). Nearly all senior prosecutors are subject to election in USA and local DAs have considerable discretion to sway prosecution policy and practice.

A new study backs up the policy with evidence. A team of economists studied the outcomes for those who were and weren’t prosecuted for minor crimes in Suffolk County – an area in Massachusetts. They followed up the suspects over two years to check whether prosecution seemed to make any difference to reoffending. It did. When comparing similar cases, the suspects who were not prosecuted were less likely to be subject to another criminal complaint over the subsequent two years – they were 33% less likely to be arrested. “We see significant reductions in subsequent criminal complaints for violent, disorderly conduct/ theft, and motor vehicle offenses”. Those who were “first time entrants”, who had not been prosecuted before, were particularly likely not to reoffend.

This is powerful evidence to suggest that prosecution of minor crimes is counter productive. But why? The study’s authors only had the data, but their hypotheses, based on previous research, were

  • Going through the court system disrupts defendants’ work and family lives. The average time from arrest to resolution of the case was 185 days. This disruption can result in people losing their jobs or income.
  • The prosecution process in USA can lead to a criminal record, even if the defendant is not convicted. And the criminal record is a barrier to getting and retaining a job as well as to getting promotion. “Misdemeanor convictions can decrease employment prospects, increasing the likelihood that those with misdemeanor conviction records turn to illegal forms of economic activity”.
  • If someone has been prosecuted for a minor crime, that record is on police systems. The view that “once a criminal, always a criminal”, may influence police behaviour – making police more likely to arrest someone with a record.
  • People who have never been arrested and prosecuted previously are particularly likely to benefit from diversion since they then avoid being labelled as a criminal, and seeing themselves as a criminal.

Those who support prosecution for minor crimes often argue that it is the general deterrence effect that matters – if people see others “getting away” with crime they will commit crime with impunity. The authors also analysed this. In 2019, a new progressive District Attorney, Rachael Rollins, was elected in Suffolk County. She was committed to reducing the number of minor crimes prosecuted. Her staff still had some discretion but she instructed “her attorneys to decline to prosecute a list of 15 low-level charges—or to request supervisory approval should they think prosecution is warranted. These are charges Rollins has identified as both taking up the greatest amount of her office’s time, and that stem from factors that can often be better addressed through “services, not sentences.””

As a result “estimates indicate that the increases in non-prosecution after the Rollins inauguration led to a 41 percentage point decrease in new criminal complaints for nonviolent misdemeanor cases on the Rollins list (not significant), a 47 percentage point decrease in new criminal complaints for nonviolent misdemeanor cases not on the Rollins list (p < .05), and a 56 percentage point decrease in new criminal complaints for all nonviolent misdemeanor cases (p < .05)”. The researchers tracked whether this non-prosecution approach had led to more crime being committed. It didn’t seem to. Reports of theft/fraud actually went down and reports of other misdemeanour type offences were stable. So the researchers concluded that this policy shift reduced future crime and had no “detrimental effects on public safety”.

This is just the latest in several International studies suggesting prosecution of minor offences is counter productive. We have no such study in England and Wales. Raw reoffending data suggests that out of court disposals reduce reoffending more than court sanctions, but we have no study which directly measures the effect of prosecution vs out of court disposals vs complete diversion from the criminal justice system. Given the problems caused by the Covid-related delays in court hearings, and news that the magistrates’ court backlog has increased since Christmas, studies like this should prompt a sea-change in prosecution policy. If there are still qualms, let’s do a nation-wide randomised control trial, taking 5% of the least serious magistrates’ court cases out of the list, and either offering an out of court disposal or complete diversion, and tracking reoffending over the next two years.