Member Submission: Sentencing Commission’s recidivism work “should come with a warning label”

What the Sentencing Commission was supposed to do: promote “sound sentencing practices”

The Sentencing Reform Act of 1984 envisioned a Commission overseeing a “research and development program” for implementing “sound sentencing practices,” with the USSC systematically collecting and disseminating research concerning sentencing practices and their effectiveness, including “information concerning sentences actually imposed, and the relationship of such sentences to the factors set forth in section 3553(a).” 28 U.S.C. § 995(a)(12), (15), (16). Section 3553(a) references several factors, but the four primary sentencing purposes stand out: retribution, deterrence, incapacitation, rehabilitation. So the USSC website’s search tool should be a portal to mountains of data and analysis on these four primary sentencing purposes, all gathered and curated by the Commission since the late 1980s. It’s not.

What the Sentencing Commission does instead: promote a “preference for imprisonment”

For years, the Sentencing Commission has focused its considerable resources on collecting data and reporting on post-sentencing, post-release “recidivism.” This focus has recently been subjected to a withering critique in The U.S. Sentencing Commission’s Recidivism Studies: Myopic, Misleading, and Doubling Down on Imprisonment, to be published in the next edition of the Federal Sentencing Reporter. The author, Professor Nora V. Demleitner, shows that the Commission’s recidivism studies subtly promote imprisonment in several ways, including by: 

•        framing recidivism data negatively, i.e., describing the data in terms of failure rates rather than desistance rates;

•        defining “recidivism” over-broadly, including not only convictions for serious crimes, but also mere arrests that didn’t result in conviction, as well as technical violations of supervision (even the Administrative Office of the U.S. Courts’ annual recidivism study doesn’t do that); and

•        failing to consider the criminogenic effects of imprisonment or the rehabilitative value of prison and reentry programming, and the influence of post-sentence supervision.

The article contrasts the USSC’s approach with the more balanced approach of  Germany, where “recidivism” is defined more narrowly, and desistance rates are emphasized over failure rates.

Do your judges rely on recidivism rates when sentencing? If so, read this article, and prepare your defenses to the wrongheaded notion that “the past predicts the future.”