Crime and Punishment

Recidivism doesn’t prove that prison doesn’t work.

New figures published by the U.K. Ministry of Justice last week show that three quarters of prisoners are convicted of another crime within nine years of their release. Since most crimes result in no conviction, it seems reasonable to assume every ex-prisoner remains a criminal.

Many take this unsurprising fact to be both surprising and an indictment of the prison system. Even the new Justice Secretary, Ken Clarke, has concluded that his former colleague, Michael Howard, was wrong when he claimed that “prison works.”

This is a peculiar objection to imprisonment—rather like complaining that your TV is not working because it does not defrost chickens. Reducing repeat offending is not the purpose of prison. Its purpose is to reduce offending. It does this in two ways: by deterring people from committing crimes and by positively preventing them from doing so while they are inside.

But doesn’t the high recidivism rate show that prison is not an effective deterrent after all? It does not. Testing the deterrence effect of prison by observing the proportion of ex-prisoners who commit crimes is a bad case of the statistical error of “sample bias.” Prisoners are, by hypothesis, people for whom the threat of prison is an insufficient deterrent to crime. That prison does not deter ex-prisoners tells us nothing about how much it deters the rest of the population, nor therefore by how much it reduces crime.

Once you think of criminal punishments as deterrents, 100% recidivism is unsurprising, because the first conviction is the most expensive for a criminal. This is when he incurs the one-off, irrecoverable costs of becoming a known criminal, such as diminished career and social prospects. If the chance of incurring these costs (in addition to the penal costs) did not deter him from committing a crime, then the inevitably lesser costs of subsequent convictions are unlikely to deter him. This is true whatever the legal penalty for crime—be it torture, prison or “community service”—and however effectively it deters first crimes. Recidivism is a red-herring.

Alas, those who complain about recidivism do not think of imprisonment as a deterrent. They think of it as being more like a medical treatment, aimed at “rehabilitating” people who have succumbed to a behavioral disease that they caught from our unhealthy society or, perhaps, from their genetic inheritance. Crimes are not the actions of people weighing costs and benefits; they are the symptoms of a condition, like the suppurating blisters of an impetigo sufferer. Criminals need to be cured, not punished.

To understand the mistake here, consider my misspent youth. I often achieved mediocre grades for my schoolwork. This would prompt my teachers to speak rudely to me, usually accusing me of being unacceptably lazy. Yet I noticed that when one of my notoriously stupid classmates achieved the same mediocre grades, praise was heaped upon him. This struck me as unfair because, as I pointed out to my teachers, I could no more help being lazy than he could help being stupid. And then they spoke rudely to me again.

Whatever the justice of it, my teachers’ unequal treatment was justified. For, although we may all have dispositions that we did not choose, some of these dispositions still respond to incentives. Because I was lazy, I required more badgering than most pupils did. Nevertheless, enough badgering would make me work. We lazy people are not immune to incentives. No amount of badgering or other punishment, however, would have improved the mental powers of my stupid classmate. Because stupidity does not respond to incentives, scolding him for it would have been pointlessly cruel.

Many criminals may well have unchosen dispositions that incline them toward violence or disobedience, or that make it harder for them to find paid employment and hence incline them toward illegal sources of income. Discovering such causes of crime makes many people move into the anti-punishment camp. But it should not. Punishment would be misguided only if, like stupidity, such criminal dispositions did not respond to incentives.

Yet they obviously do. Imagine that some technological advance meant that every theft resulted in a correct arrest, and that the convicted thieves were brutally tortured. Can anyone doubt that thievery would go into sharp decline? Or, if you prefer real world examples, compare the amount of drug-related crime in the U.K., where convicted drug dealers are imprisoned, with the amount in Singapore, where they are executed.

The new British government plans to replace punishment with attempted rehabilitation. Since this will reduce the cost of committing crimes, it will increase the number of people who become criminals. In other words, the policy will encourage criminality for the sake of then curing it. This would be absurd even if a cure for criminality existed, even if attempts at rehabilitation were generally successful. Given that rehabilitation remains no more than a fantasy of penal reformers, however, the policy is not merely absurd but positively wicked.

Mr. Whyte is a management consultant and author of “Crimes Against Logic” (McGraw Hill, 2004).


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