Criminal Justice Legal Foundation Research Debunks DA Gascón Claims on Sentence Lengths and Recidivism

This is important because when Los Angeles County District Attorney George Gascón was elected last November, within minutes of being sworn in, he announced he would be getting rid of all crime enhancements, eliminating cash bail, and would address sentences and recidivism, as the Globe reported.

By early December, Gascón issued seven special directives that went into effect immediately: 

• SD 20-06: Pretrial Release  
• SD 20-07: Misdemeanor Reform  
• SD 20-08: Sentence Enhancements/Allegations 
• SD 20-09: Youth Justice  
• SD 20-10: HABLIT 
• SD 20-11: Death Penalty  
• SD 20-12: Victim Services  
• SD 20-13: Conviction Integrity Unit 
• SD 20-14: Resentencing

Here is what Gascón said in December:

“These policies are, by any measure, major departures from how this office has approached this work previously. We are, at least in part, in the business of gauging future human risk.  It is not an exact science, but the available science, data and research tells us that excessive sentences exacerbate recidivism and claim more victims in the future. I know there is pressure in our profession to seek the maximum sentence possible in order to ensure you will not be blamed if a defendant recidivates 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 did extensive research into the science, data and research 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 with a claim that ‘studies show’ that longer sentences cause a large increase in the rate at which felons commit new crimes after release, so large that it overcomes the benefit of preventing them from committing new crimes while they are in prison,” the CJLF said. “In a press release on March 17, 2021, Gascón asserted in support of this policy and others, ‘We are doing all of this because the science and data tell us so.’ However, with regard to sentence length and recidivism, the District Attorney’s Office has cited only one unpublished, non-peer-reviewed manuscript in support of the claim.”

Their research led the CJLF to find just one “study” Gascón said justified his policy change; except this study was unpublished and lacking in peer review.

“This policy is justified with a statement regarding empirical research in the field: ‘While initial incarceration prevents crime through incapacitation, studies show that each additional sentence year causes a 4 to 7 percent increase in recidivism that eventually outweighs the incapacitation benefit’ (Gascón, 2020, p. 1),” the CJLF research paper reported. “Despite the plural ‘studies’ alluded to, only one unpublished manuscript is actually cited in support (Mueller-Smith, 2015). In addition, the study methodology has some nuances that render it not fully comparable to past literature on the topic. Thus, it is concerning that such a drastic policy change is based on only one study selected from the full body of research on the topic.”

The CJLF continued, and revealed how this unpublished paper became the justification:

“The claim that longer periods of incarceration disproportionately increase risk for recidivism has nonetheless attracted prominent support from people within the academic community. A newspaper opinion piece co-authored by the dean of U.C. 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 links again to Mueller-Smith (2015) as authority for the assertion. A ‘friend of the court brief’ filed in litigation over the policies, by one of the same co-authors, makes a similar assertion also citing the 2015 article (Romano & Chemerinsky, 2021).”

The CJLF explained there has not been much consistency supporting claims like Gascón’s about sentencing and recidivism throughout the entire breadth of research (Nagin, Cullen, & Jonson, 2009; Rhodes, Gaes, Kling, & Cutler, 2018; Tonry, 2008). “Rather, the blanket assertion that longer sentences result in greater likelihood of reoffending relative to shorter sentences contrasts sharply with findings from the last thorough review of the literature on the subject.”

They say that policies such as Gascón’s (2020) are too often based on selectively cited research rather than the full breadth of research as a whole. In regard to the impact of imprisonment on recidivism, rather than having an empirical straightforward explanation, it is more likely that people respond to policy changes in a variety of ways that may or may not be directly or indirectly related to recidivism risk (Mears et al., 2016; Miles & Ludwig, 2007; Tonry, 2008)

CJLF says “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 findings are still very mixed, providing little conclusive evidence for or against the specific deterrent effects of imprisonment (Rhodes et al., 2018), similar to conclusions reached by Nagin et al. (2009).”

Lastly, “Evidence-based practice should involve a critical examination of the breadth and depth of the existing empirical research before enacting sweeping policy changes with potentially irreversible effects. When considering the entire body of research, there is some evidence that suggests that certain punishments may be an effective deterrent to crime, though this effect is not always consistent or strong. Further, among the substantial number of published studies with varying methodologies, not one has found a large aggregate-level criminogenic effect. Once again, this highlights the need to consider the totality of findings across research studies and the contexts to which they apply when enacting policy change.”

The Criminal Justice Legal Foundation “is a nonprofit, public interest law organization dedicated to restoring a balance between the rights of crime victims and the criminally accused.”