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In criminal sentencing, surety trumps length

One Saturday night, my wife and I went out to dinner.

We came home to find our door kicked in.

It was a heart-sinking moment but could have been far worse. The burglar grabbed just a few readily sellable items and fled. He was already driving away before our neighbor, who saw the whole thing from her kitchen window, got off the phone with 911.

One of the things he stole was a Walkman, which dates both the incident and myself.

We replaced that smashed door with a far stronger one, and had a security screen door installed, too. I’m happy to report our family’s burglary rate has since plummeted.

America’s national crime rate began climbing in the mid-1960s, rising to crazy heights during the first Bush administration. But then it abruptly dropped. From the mid-1990s into the early 2010s, the trend lines on all the graphs of criminal activity pointed consistently down.

And not just in America, either. The crime drop was international.

Different countries adopted different approaches but obtained comparable results, which complicates all efforts to understand the cause. For example, incarceration rates went down in several European countries as they went up in America, yet both regions saw a crime drop.

I think the most plausible explanation is the “security hypothesis” of criminologist Graham Ferrell.

His hypothesis builds on the observation that ordinary people around the world responded to out-of-control crime by fortifying their homes, as my wife and I did. They fortified their workplaces, too, and bought cars that are harder to steal. They radically changed the way they raise children.

The declining crime rates were measuring the changing behavior of non-criminals.

That’s one reason why those of us who lived through the crime drop didn’t experience it as sunshine breaking through the clouds. There’s a parallel with the pre-vaccine stage of the pandemic: We took security measures to protect ourselves, which reduced the rate, but only so long as we kept up the security measures.

A more sustained reduction in crime will require changing the behavior of criminals instead, and that’s much harder to accomplish.

I worked as a prosecutor, representing the state of New Mexico on criminal appeals, for many years. I noticed that the criminals we convict (a subset of the whole) tend to have a few features in common. They skimp on the advance planning, for instance, and/or they can’t keep their mouths shut.

So I wasn’t surprised by the results of a meta-analysis of 42 studies measuring the incidence of ADHD in prison populations. Published in Psychological Medicine in 2016, it found that a full quarter of prisoners met the formal diagnostic criteria.

Our prisons are crowded with people who acted on impulse, or in a temper. They didn’t think ahead. That’s how they got caught.

I hope you can see the problem inherent in any crime-fighting strategy that depends on asking criminals to think ahead about the possible long-term consequences of their actions.

Yet that’s the strategy embraced by every politician who talks up tougher penalties as the solution to soaring crime rates, as if tacking a few months onto the end of an already-long sentence, somewhere in the hazy future, will make all the difference.

For 40 years, America has pursued mass incarceration as its primary crime-fighting strategy. The Prison Policy Initiative estimates that on any given day, no fewer than 2.3 million Americans are in prison or jail.

A 2019 paper by Cornell’s Peter K. Enns and colleagues asked in its title, “What Percentage of Americans Have Ever Had a Family Member Incarcerated?” The answer: “The data show that 45% of Americans have ever had an immediate family member incarcerated.”

If harsh penalties were the secret to reducing crime, we’d have reached our low-crime paradise by now. Instead, as we know only too well, crime is rising again.

America’s violent crime rate is by far the highest among rich countries. So is its incarceration rate. Taken together, those two figures sum up the comprehensive failure of our criminal justice system, which is maximally punitive but minimally protective. That ought to be a contradiction but somehow isn’t.

Another approach is possible.

Imagine you have to run a brief errand at UNM on a hot day. You could leave your car in the parking structure, pay the fee and hike across the broiling concrete. Or you could park illegally right outside the air-conditioned office you need to visit.

Which risk scenario would make you less likely to park illegally: a 10% risk of a $50 ticket, or a 90% risk of a $20 ticket?

Politicians who promise harsher sentences are focusing on the wrong variable.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at