Foundation research

Criminal Justice Legal Foundation research debunks DA Gascón claims about sentence length and recidivism

A new research project from Criminal Justice Legal Foundation debunked claims that “science and data” show that shorter sentences for violent and habitual criminals promote public safety have no basis in published research.

This matters because when Los Angeles County District Attorney George Gascón was elected last November, minutes after being sworn in, he announced that he would get rid of all crime enhancements, eliminate cash bail and would tackle sentencing and recidivism, as the Globe reported.

DA George Gascon. (Photo: Wikipedia)

Early December, Gascon issued seven special directives that took effect immediately:

  • SD 20-06: Provisional release
  • DS 20-07: Reform of offenses
  • SD 20-08: Penalty Enhancements/Allegations
  • SD 20-09: Youth Justice
  • SD 20-10: EMPOWER
  • SD 20-11: Death sentence
  • DS 20-12: Victim Services
  • SD 20-13: Conviction Integrity Unit
  • SD 20-14: Reconviction
The Criminal Justice Legal Foundation has undertaken a review of published research on this topic to determine if, in fact, “studies show” what Gascón claims. The CJLF published the results in a working paper on Wednesday, Sentence Length and Recidivism: A Research Review. The Globe spoke to CJLF legal director Kent Scheidegger on Wednesday about their findings and research.

The authors of the research paper, Research Associate Elizabeth Berger and General Counsel Kent Scheidegger, to dig in punishment, deterrence, incapacitation, and rehabilitation, and finding that there is not much conclusive evidence for what Gascón claims.

“There is no strong basis in published research to claim that longer sentences increase recidivism compared to shorter sentences,” Berger said. “Most studies of the effect of sentence length suggest either no effect on recidivism or small reductions in recidivism.”

“Choosing a single unpublished paper for what ‘studies show’ when the body of published literature is to the contrary is a blatant misrepresentation,” Scheidegger said. “The state of our knowledge in this area is still limited, but what we know tends to refute rather than support Gascón’s claims.”

Here is what Gascón said in December:

“These policies are, by any measure, major departures from how this office has approached this work before. We are, at least in part, in the business of assessing future human risk. It’s not an exact science, but available science, data and research tell us that excessive sentencing exacerbates recidivism and leads to more victims in the future. I know there are pressures in our profession to seek the maximum possible sentence to ensure that you will not be blamed if an accused reoffends in the future. Know that I will never blame you for seeking appropriate alternatives to incarceration, even if an intervention fails.

The Criminal Justice Legal Foundation has done extensive research on the science, data, and research that Gascón claimed to use regarding the effect of length of incarceration on the recidivism rates of released offenders.

“In Special Directive 20-08, the new DA supported this policy by stating that ‘studies show’ that longer sentences lead to a large increase in the rate at which felons commit new crimes upon release, so significant that it overcomes the benefit of preventing them from committing new crimes while they are in prison,” the CJLF said. “In a March 17, 2021 press release, Gascón asserted in support of this policy and others: ‘We are doing all this because the science and the data tell us so.’ However, with respect to sentence length and recidivism, the district attorney’s office cited only one unpublished, non-peer-reviewed manuscript in support of the claim.

Their research led the CJLF to find a single “study” according to Gascón justifying its policy change; except that this study has not been published and has not been peer reviewed.

“This policy is justified by a statement regarding empirical research in the field: “While initial incarceration prevents crime through incapacitation, studies show that each additional year of sentence results in a 4-7% increase in recidivism that ends up outweighing the advantage of incapacity” (Gascón, 2020, p. 1)”, the CJLF research paper reported. “Despite the plural of ‘studies’ referred to, only one unpublished manuscript is actually cited in support (Mueller-Smith, 2015). In addition, the methodology of the study has certain nuances that make it difficult to compare with previous literature on the subject. Thus, it is concerning that such a drastic policy change is based on a single study selected from the body of research on the subject.

The CJLF went on to reveal how this unpublished article became the rationale:

“The assertion that longer periods of incarceration disproportionately increase the risk of recidivism has nevertheless attracted significant support from members of the university community. An opinion piece co-authored by the Dean of UC Berkeley Law School asserts that “sentence enhancement approaches have exacerbated recidivism, creating more victims of crime” (Chemerinsky & Krinsky, 2021, para. 5). A hyperlink in the online version of the article again points to Mueller-Smith (2015) as the authority for the claim. A “friend of the court record” filed in policy litigation, by one of the same co-authors, makes a similar claim also citing the 2015 article (Romano & Chemerinsky, 2021).

The CJLF explained that there has not been much consistency in support of claims like Gascón’s regarding conviction and recidivism across the breadth of research (Nagin, Cullen, & Jonson, 2009; Rhodes , Gaes, Kling and Cutler, 2018; Tony, 2008). “On the contrary, the general assertion that longer sentences lead to a greater likelihood of recidivism compared to shorter sentences contrasts sharply with the findings of the latest extensive review of the literature on the subject.”

They say that policies such as that of Gascón (2020) are too often based on selectively cited research rather than the body of research as a whole. Regarding the impact of imprisonment on recidivism, rather than having a simple empirical explanation, it is more likely that people react to policy changes in various ways that may or may not be directly or indirectly related to the risk of recidivism (Mears et al., 2016; Miles and Ludwig, 2007; Tonry, 2008)

According to the CJLF, “estimating the causal relationship between length of incarceration and recidivism is difficult for a variety of reasons (Rhodes et al., 2018). Since the 2009 review by Nagin et al., there have only been a handful of methodologically rigorous studies that have attempted to do so. Taken together, the results are still very mixed, providing little conclusive evidence for or against the specific deterrent effects of imprisonment (Rhodes et al., 2018), similar to the findings of Nagin et al. (2009).”

Finally, “evidence-based practice should involve critical examination of the breadth and depth of existing empirical research before adopting sweeping policy changes with potentially irreversible effects. When considering the body of research, there is some evidence to suggest that certain sentences can be an effective deterrent to crime, although this effect is not always consistent or strong. Moreover, among the substantial number of published studies with varying methodologies, none found a significant criminogenic effect at the aggregate level. Again, this underscores the need to consider the totality of findings from research studies and the contexts to which they apply when implementing policy change.

the Criminal Justice Legal Foundation “is a non-profit public interest law organization dedicated to restoring a balance between the rights of victims of crime and those of criminal defendants.”

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