First published: January 2016
The issue of the “best sentence” is one of modern societies’ trickiest problems. Prison is at the core of the State’s punishment and regulation system. Yet the shortcomings of incarceration are well-known: detrimental effects on offenders’ future labor market outcomes due to stigma and human capital depletion, disruption of family ties, strict detention having criminogenic effects partly to mutual influence of criminals in prison. All these contribute to increase recidivism rate. In this post I discuss the notion of a “good” sentence according to a retributive and utilitarian perspective, then apply the latter to the analysis of prison and recidivism and finally empirically gauge to what extent EM might be a more effective punishment based on the recent analysis by Henneguelle et al..
What is a good punishment?
There are two main perspectives to tackle this question. According to a retributive point of view, which can be also labelled “backward looking view”, the appropriate response to crime is a proportionate punishment. The criminals have to forfeit something in return for what she did to morality and society. Punishment is fully and only justified by the damage that have been done. On the opposite side of the Assembly sit Utilitarians who favor a forward-looking perspective on punishment: the latter should be chosen so as to maximize future social welfare which includes recidivism.
For example, from the first perspective, prison may be a good punishment for severe crimes as it deprives criminals of the most sacred rights, namely freedom, and the length of the sentence should be proportionate to the severity of the crime. From a Utilitarian perspective, prison are good because it deters people from committing crimes as incarceration costs prisoners a lot – the latter lose their freedom and incarceration offers really tough life standard of living.
Our modern systems have been navigating between these two principles. These two perspectives may sometimes be conflicting since the backward looking proportionate response may not be the one that achieves the highest future social welfare.
Many countries have adopted EM as an alternative sentence to prison. This move is mainly justified by forward-looking type of argument. What are these underlying theoretical arguments?
Utilitarian perspective on prison and EM and channels of recidivism
From a utilitarian perspective, a good punishment should minimizes recidivism. To that regard, prison’s performance is disappointing: 77% of ex-prisoners are rearrested in the following 5 years in the US. What are the main channels through which prison may increase or decrease recidivism? The following paragraphs are based on Henneguelle et al. first section.
First, incarceration deplete the criminals’ human capital and attach to them a stigma that will have long-lasting detrimental effects on the labor market. Secondly, incarceration disrupts family relationship and together with the labour market outcomes makes it more difficult for ex-prisoners to be and feel part of a society again. Thirdly and importantly incarceration could be more criminogenic through the violent psychological effects it has on prisoners as well as through the well-documented channel according to which prison are like schools of crime in which prisoner learn from each other and build new networks. All those effects tend to foster recidivism.
Regarding all those arguments, EM seems to be a good solution as it didn’t break somebody’s labour market and family ties and doesn’t stimulate the accumulation of criminal capital. Finally the authors also give a more specific argument in favor of EM that relies on the gift/counter-giftanalysis by Mauss: if EMis perceived as a gift – as the wording “sentence reduction” makes it clear – from society to convicts, then the latter might give back to society by reoffending less.[1]
All these channels play against incarceration as a good punishment with regard to recidivism. However they are heavily counterbalanced by the fact that the deterring effect of EM is much lower than the one of prison. Let’s go to the real world, what is the estimated net effect on recidivism of EM rather than prison?
Empirical estimation
The author’s strategy exploits the fact that the EM was introduced in an arguably random sample of courts in France in 2000-2001 so that they can compare the rate of recidivism for two nearly identical convicts, one benefiting from EM and the other not. The IV estimation show that fully converting prison sentences into EM has beneficial effects on recidivism by decreasing the probability of reconviction by 7 percentage point – the average rate of recidivism in the whole sample being 64%.
They then explore the conditions in which EM work best and show that it was most effective when it was associated with control visits at home, a longer surveillance period, younger population, obligation to work and prior incarceration – the latter supporting the gift/counter-gift hypothesis.
Conclusion
Exploiting a quasi-random testing experiment in France, the paper by Henneguelle et al. convincingly shows that electronic monitoring can help reduce the rate of recidivism by 7 percentage points (with an average rate over the whole sample of 64%). EM – although questionable from a retributive justice perspective – might be a good alternative to incarceration from a Utilitarian perspective as it avoids the loss of social ties, the accumulation of criminal capital in prison and is based on a gift/counter-gift virtuous dynamics. However, this figure should be taken with care. Firstly it remains really low: EM doesn’t solve the recidivism problem at all. Secondly, it doesn’t say that it reduces recidivism for anybody because the subsample on convicts on which it is estimated have themselves been selected by judges based on their chance of “success”: in technical words, the coefficients is identified through the treated people! Finally, there are conditions for the EM to work well: control visits at home, obligations to work, prior conviction.
[1] Notice here the slight internal inconsistency between the beliefs of the judicial system and the beliefs that would support such a gift/counter-gift mechanism: if it is optimal from the point of view of the judicial system to move to EM because of forward-looking arguments, then EM is the fair sentence and the wording “sentence reduction” loses its meaning. The beliefs that could support the idea of true “sentence reduction” and consequently this gift-counter-gift mechanism are only consistent with a retributive perspective. Overall, it is as if the judicial administration was optimizing using forward-looking beliefs but trying to make convicts adopt backward-looking beliefs so that they see the change in the sentence as a gift – while it is actually optimal – and therefore fair – from the utilitarian perspective of the State.