Prosecuting Nonviolent Offenders Leads to More Mass Incarceration

STUDY: Prosecuting Nonviolent Offenders Leads to More Mass Incarceration

Mass incarceration seems to perpetuate mass incarceration, according to a study done by the National Bureau of Economic Research. They found when prosecutors are more lenient on certain nonviolent crimes — such as some drug cases, motor vehicle violations, more minor theft cases and disorderly conduct charges — people are less likely to be cycled back into the criminal justice system.

Researchers compiled data from the Suffolk County District Attorney’s Office (SCDAO) in Massachusetts between 2004 and 2018 — the first study of its kind to analyze the empirical impact of not prosecuting nonviolent crimes. 

Based on SCDAO policy, assistant district attorneys (ADAs) have the discretion to either continue to prosecute a case or throw it out the window at the initial arraignment, a term they coined “non prosecution.”

“Time spent in the criminal justice system—attending hearings and meetings with lawyers, for instance—can disrupt defendants’ work lives, increasing the risk of reoffending”

National Bureau of Economic Research

Through an analysis of ADAs decisions over whether to prosecute defendants for nonviolent crimes they measured the impact of the most lenient ADAs on a defendant’s rate of recidivism. 

“Defendants who were not prosecuted were 33% less likely to receive a new criminal complaint within two years of their arraignment,” Justin Wise, a writer for the legal news source Law360, wrote summarizing the researchers’ findings. 

Wise also added defendants were “58% less likely to get a new criminal complaint than the average defendant who is prosecuted for a related crime.”

The study indicates the decision of non-prosecution for nonviolent misdemeanors dissuades those same individuals from committing a crime in the future. 

“The result of our analysis imply that if all arraigning ADAs acted more like the most lenient ADAs in our sample when deciding which cases to prosecute, Suffolk County would likely see a reduction in criminal justice involvement for these nonviolent misdemeanor defendants,” researchers wrote.  

The study supposes by limiting interactions with the criminal justice system, especially for first time offenders, the detrimental effects of criminal prosecution such as housing and job discrimination do not occur; thus, the need to resort to crime is decreased. 

“By allowing those charged with nonviolent misdemeanor offenses to avoid the potential negative consequences of a criminal prosecution (including time away from work and family, a criminal record of an arrest, and a possible criminal record of a conviction), alternatives to misdemeanor prosecution may decrease defendants’ subsequent criminal justice contact,” they wrote. 

Other than reducing the overall population of people in prisons for nonviolent misdemeanors, which account for 80% of all cases in the criminal justice system, the study indicates how the policy of non-prosecution would benefit Black residents in Suffolk County. 

“Because nonviolent misdemeanor defendants in Suffolk County are disproportionately Black,” the researchers write, “reducing the prosecution of nonviolent misdemeanor offenses would disproportionately benefit Black residents of the county.”

Prosecuting nonviolent crime seems to be worse than simply letting people go. Deciding to prosecute an individual, then to physically wind the case through the sluggish and dehumanizing court system and to get a conviction only puts a stamp of criminality on their life. Ultimately, this will limit job accessibility, income, quality of life and increase their chances of being involved in criminal activity to support themselves and their families. 

“Time spent in the criminal justice system—attending hearings and meetings with lawyers, for instance—can disrupt defendants’ work lives, increasing the risk of reoffending,” the study found.  

“We may in fact be undermining public safety by criminalizing relatively minor forms of misbehavior,” law professor Anna Harvey, who co-authored the study, told Law360.   

Since what is considered nonviolent criminal behavior varies state by state, as well as a variation in the behavior of police in arresting people, the study suggests incorporating a policy which allows lenient ADAs to have more power. 

The study also recommends making predetermined decisions on what can be prosecuted by applying a policy of non-prosecution to frequented and unserious low level offenses. 

Incorporating these policies would reduce individuals involvement with the criminal justice system and mass incarceration. In doing, they suggest, it would keep communities safer while preventing America’s prison industrial complex from growing by reorienting the perception and purpose of the criminal justice system. 

Daniel Karny is a sophomore at the State University of Rutgers New Brunswick majoring in political science with a minor in law and history. In his spare time he enjoys strumming his six string and hiking around New Jersey.

Daniel Karny is a sophomore at the State University of Rutgers New Brunswick majoring in political science with a minor in law and history. In his spare time he enjoys strumming his six string and hiking around New Jersey.

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