Blog 3: Risk Aversion
Since the “Get Tough” movement took hold in the 1980s, Americans have come to accept that a wider net of offenders belong in jails and prisons. Over time, our willingness to forgive has waned. We never hear the old saying, “I did my time” or “he paid for his crime”. Instead, we seem to be afraid of anyone who has been in jail or prison. We know that most were just there for drugs but we don’t want to take a chance on any of them, just in case. This fear has been augmented by misinformation, by politicians who use fear as a tool, and, I would also speculate, a decline in common sense. Fear has been used to persuade the public that massive criminal justice spending is necessary, and some criminal justice system actors have used the amplified and sometimes fake risk of violence to justify questionable actions and policies. But now the fear has circled back to the politicians, policymakers, and criminal justice system actors and become what I call, “risk aversion”.
Let me explain. Criminal justice actors make “discretionary” decisions that give them power over the lives of other people. Judges have the discretion to accept or reject plea bargains, and make the final determination about sentences–in some cases, whether or not you go to prison and for how long. Most scholars today write that prosecutors actually have more power, because of their discretion in deciding whether to charge at all, what to charge (from a huge menu of felonies and misdemeanors provided by state legislatures), and how to structure the charges and recommendations for sentencing. Police have the discretion to stop you (or not), pat you down (or not), search your car (or not), arrest you (or not), use force (or not), and so on. It is my argument that actors at all levels have become “risk averse”. It is not the fear of being violently victimized, themselves, it is the fear that they might decide not to stop someone, not to make an arrest, not to keep someone in jail or prison, and that person might go on to commit a serious crime, and the officer or judge or parole board will be blamed.
Risk aversion is probably particularly acute for elected officials such as judges and prosecutors who could face political fallout (but probably won’t—their risk aversion on this point is outsized; how often have you gone to the ballot box and have absolutely no knowledge about candidates for judge?). We see it among legislators who are intransigent when it comes to sensible and humane legal reforms faithful to civil rights even though they are elected to be “leaders” and, if they would cooperate with one another, would be protected by a diffusion of responsibility. Political advisers look back to the George H.W. Bush/Michael Dukakis/Willie Horton election (1988 kiddos). In case you don’t remember, Dukakis was governor of Massachusetts. They had a weekend “furlough” program. It was probably a good program. Unfortunately a man named Willie Horton was released on furlough, failed to return to prison, and went on to commit several very serious violent crimes. Even though many people likely benefitted from the program, Bush campaign ads used it to attack Dukakis. The ads blamed Dukakis for Horton’s crimes, and we ended up with President Bush, rather than President Dukakis. You can still find the ads online, if you are interested. I show them to my classes sometimes. (By the way, I find it a bit galling that those who defend police policy with the “bad apple” defense when an officer messes up, do not seem to rise to the occasion when a “bad apple” bruises the reputation of an otherwise good corrections program).
It would be difficult to empirically test this hypothesis, because police and judges and prosecutors would not likely admit that their decisions are sometimes governed by the fear of being blamed. But the proof is in the pudding, as they say. The volume of people in jail, in prison, on electronic monitoring and so on belies the fact that many of these people would have been freed with a warning or put on mild probation or given short stints in jail in the decades before the get tough movement. And for the most part, it would have been just fine. While mass incarceration was initially attributed to sentencing reforms, it has remained sticky. It has remained sticky in part because of the avalanche of “get tough” legislation that remained on the books well after we knew that many of those laws were bad policy. It has also remained sticky because the culture has changed–we just expect people to go to jail and prison all the time. Judges and prosecutors are used to keeping more people behind bars and young prosecutors and judges wouldn’t even remember anything different. Part of that culture change is risk aversion. Many people, including these professionals, live with an exaggerated fear of crime and those with discretionary powers in the system operate accordingly–ever-concerned that they will lose their jobs or be admonished by colleagues if they do not kowtow to this fear. They probably hate it, but that’s just a guess.
I am at a loss about how to address the change in culture that I have seen during my lifetime. However, one very effective way to reduce the problem of risk aversion is the use of risk assessment instruments. We will probably post a blog about risk assessment instruments at some point, because there is a lot to complain about. For those who don’t know, a risk assessment instrument is an “objective” computer application that uses data about a person and a case to estimate a risk score. The score can be evaluated based on a guidelines grid or risk matrix that provides presumptive decisions such as release or detain, imprison or supervise in community, or sentence length. Their ascendance has been supported mainly because of the likelihood that they can ameliorate racial biases in decision-making. However, risk assessment instruments can also give these criminal justice actors cover. Those who follow the guidelines take their own responsibility for a decision out of the equation. Thus, the detention screening officer can simply say, “Her risk score was 8, and the risk score triggering presumptive detention is 12, so I let her go home” and not take any blame or feel any guilt if the girl went out and did something bad afterward. In an era of risk aversion, this could be the best way to address mass incarceration (and mass electronic monitoring–a question for another day).
Risk assessment instruments are not new and are in use in many jurisdictions around the country. I am not sure what the proportion is. They are generally advisory and not mandatory. There are a variety of software packages. There are many problems with them, including the fact that the guidelines that I have seen are commonly too harsh. But they are malleable. The risk scores can be tweaked as new data come in and a jurisdiction looks at risk scores and outcomes. The guidelines and risk matrices are also malleable, as compared to state and federal law. Ultimately, they have the potential to alleviate the “risk aversion” that leads to jails filled with people who are not dangerous, prisoners waiting for extra years for release from prison, and like problems of over-control.
