For all the talk there has been of the huge increase in crime across the nation, not nearly enough attention has been put on the single greatest reason for the problem: recidivism. It has been fueled by a mindset in our criminal justice system in which levels of crime have arbitrarily been labeled low-level or high-level. In the process, judicial discretion to deal with defendants has become severely limited based solely on that label.
As a result, offenders have become emboldened to break the law repeatedly, especially as an increasing number face slap-on-the-wrist consequences for their actions. According to the US Justice Department, “Recidivism is one of the most fundamental concepts in criminal justice. It refers to a person’s relapse into criminal behavior, often after the person receives sanctions or undergoes intervention for a previous crime.” The department reported that a very small fraction of individuals—about 2 to 5 percent—are responsible for half or more of all crimes. Therefore, stopping a small percentage of recidivists can have a massive impact on the rise in crime.
We need look no further than New York State to see how its policies of defining persons as “low-level” forced judges to ignore the stark reality of recidivism. In a New York Post article published in February, Jim Quinn, a former executive district attorney, explained that the average person described as a “low-level defendant,” had a shocking 18 prior strikes against them, broken down to include 10 prior arrests, six prior convictions and two prior bench warrants for failing to appear in court. These individuals, considered poor and unable to afford bail, were released under the state’s bail reform law and had a 43 percent new crime rate while out on bail.
The failure of criminal justice policies across the country has resulted in an attempt by bail reform advocates to create a new narrative. They have espoused the “new” idea that the problem of repeat criminality can be solved by allowing the system greater discretion to request and impose bail, rather than restricting it as has been done in the past.
In Los Angeles County, embattled District Attorney George Gascón, who is currently fighting a recall vote on this very issue, recently reversed his no-bail special directive for certain crimes. Gascón implemented this controversial edict on his very first day on the job. Despite rising crime that was already making headlines, he said last December that he would “not be intimidated by political rhetoric.” It was difficult to accept either the sincerity or wisdom of the action with so many officials publicly in opposition, including Los Angeles Sheriff Alex Villaneuva, who called it “an absolute disaster for the community.” But Gascón’s Chief Deputy, Sharon Woo, insisted that the move to allow greater discretion to request monetary bail was about “protecting public safety,” while ignoring the growing numbers of failures to appear in court as the reason for the new policy.
Another prime example of failed policies that encouraged recidivism can be found in Houston’s Harris County, where numerous misdemeanor bail reforms, that centered on low-risk crimes that supposedly required little attention, resulted in a nearly unprecedented rash of re-offenses. The Houston Police Officers’ Union released a telling report earlier this month (May 2022) based on a simple premise and methodology: pull Harris County’s publicly-available court files and see what the cold, hard facts revealed. What the data showed was startling: 76 percent of misdemeanor defendants skip court. Meanwhile, 72 percent of all misdemeanor charges are dismissed, due to a 170 percent increase in backlogs caused by the fact that no one is showing up for court. In sharp contrast, the dismissal rate was only 26 percent prior to the implementation of these reforms.
In greater Houston, justice delayed is truly justice denied. Unfortunately, law enforcement knows the reality of the situation they face every day and have all but thrown their hands up in frustration. Despite the fact that the area has one of the highest DWI-related fatality rates in the nation, it is no secret that the best strategy for fighting a DWI charge is to simply not show up for court. The statistics bear this out: in Harris County, there is only a 28 percent chance of being convicted for a crime for which an individual has been arrested.
Similar results can be expected in California, Michigan and Ohio, where bail reform legislation has been proposed. If these policies are approved in more jurisdictions, it would restrict the discretion of judges to impose bail based on what is labeled “low-level” crimes, thus ignoring any criminal past and pretrial failures, no matter how extensive.
In a 2016 study, the National Institute of Justice concluded that two things deterred criminal behavior: 1) increasing the perception that criminals will be swiftly caught; and 2) increasing the probability that they will be punished. To that, I would add increasing the speediness of criminal cases. Research has shown that delayed punishment greatly decreases its effectiveness. The quick resolution of cases may also reduce or completely eliminate the negative impact of extended pretrial detention.
While the presumption of innocence is fundamental to our legal system, it does not exist to excuse the conduct of previously convicted recidivists who are re-victimizing our communities. These individuals must be made to understand that they are subject to arrest and must post bail on any new charges or possibly even remain in jail.
Sadly, there is a seemingly endless list of state lawmakers around the country who would love nothing more than to push through a bill increasing sentences for a long list of crimes. While that might grab the headlines they seek, doing so would actually not deter crime. The only way out of our current mess is to send a strong signal to recidivist criminals that they will be held strictly accountable and then demonstrate that we mean business. What must fundamentally change is our present toothless stance that “low-level” crimes remain so even if they are committed a hundred times. Instead, we must stand firm that any qualifying crime, committed often enough, will now be treated as “high-level.” Defining the specific criteria and what that line is will be one of our prime legislative and legal policy challenges in the years ahead.
As our nation continues to wrestle with its out-of-control crime problem over the next few years, here is a simple test to determine how our state legislatures should proceed: Do their actions increase the perception and reality that repeat criminals will be swiftly caught and prosecuted? And do they increase the probability of recidivists being punished? Forget any political noise you might hear. Anything that does not directly address these issues will not help us right now.
For richer or poorer, recidivist criminals dwell at the center of our criminal justice problems. Rather than helping them maintain the status quo they currently enjoy, if we are ever to get a handle on the problem, we must do everything we can to prevent them from continuing to victimize our communities.
Jeffrey J. Clayton is the Executive Director of the American Bail Coalition. He has worked as a public policy and government relations professional, and also as a licensed attorney, serving a variety of clients in legal, legislative, and policy matters. Mr. Clayton also worked in government service, representing the Colorado Judicial Branch and State Labor Department, and the US Department of Transportation. He is also a prior Presidential Management Fellow and Finalist for the US Supreme Court fellows program. Mr. Clayton holds a B.B.A. from Baylor University, an M.S. in Public Policy from the University of Rochester, N.Y., and a J.D. from the Sturm College of Law, University of Denver.
Suggested citation: Jeffrey J. Clayton, Responding to the National Crime Wave: New Framework Needed to Combat Recidivism, JURIST – Professional Commentary, May 30, 2022, https://www.jurist.org/commentary/2022/05/jeffrey-clayton-new-framework-combatting-recidivism/.
This article was prepared for publication by Katherine Gemmingen, JURIST Co-Deputy Executive Editor. Please direct any questions or comments to her at commentary@jurist.org
