Thinking About Crime Again
James Q. Wilson has been regarded as a leader of American criminology—we have more criminologists (and more crime) than most countries—at least since he collected his work in Thinking About Crime eight years ago. Deservedly so: his essays continue to throw a bright beam of light on the current tangle of obscure and sometimes obscurantist theories and statistics. The publication of a revised and greatly enriched edition of Thinking About Crime,1 coinciding, as it does, with the appearance of Crime and Public Policy,2 a compendious volume he edited, confirms Wilson’s status, and is cause for both celebration and critical evaluation of some of his policy proposals. For Wilson is policy-oriented above all.
Thus, he strenuously argues that it is possible to influence events without knowing their causes. This is a point that should be obvious: one can extinguish a fire without knowing what caused it. Indeed, we often learn about causes from cures: if ingesting a chemical cures a disease, we may learn that the disease was caused by a lack of that chemical.
Even if likely to be correct, theories of crime causation do not help much at present. We know that a disproportionate number of crimes is committed by young males. But even if we wanted to, we could do little to reduce the proportion of young males in the population. Our knowledge helps us understand some fluctuations of the crime rate and to explain (in part) why the black crime rate is higher than the white crime rate: there is a higher proportion of young males in the black than in the white population. There is not much to be done about that either.
In one of the essays included by Wilson in Crime and Public Policy, Travis Hirschi brilliantly links crime to the control, or rather lack of control, of families and other groups over their members, particularly the young. Perhaps we will find ways of changing harmful family behavior or of replacing family emotional bonds in the future. For the time being nobody knows how to do it: the policy consequences even of correct causal theories are quite limited. Therefore, knowing about crime control is more important, at present, than knowing about crime causation.
Unfortunately, many hitherto influential criminologists have been less interested in controlling crime than in justifying social reforms by way of theories, usually unsubstantiated, about crime causation. They insist that social injustice is to blame for crime, not criminals. Crime is merely the punishment for our sins: poverty, inequality, “labeling” deviants, racism. Criminologists who think this way often have opposed building prisons; indeed they have opposed all crime-reducing measures other than the social reforms—in extreme cases the revolution—which their ideology (usually some variant of egalitarianism) demands. Everything else they regard as, well, irrelevant. It is, of course, to them, though not necessarily to crime reduction.
Wilson gives short shrift to theories blaming crime on the injustices of society. As a fine essay by Richard B. Freeman in Crime and Public Policy shows, the relationship between crime and unemployment is quite weak. Lack of money (as distinguished, I would say, from the presence of the wish for it) has little to do with crime: released convicts who are subsidized do not commit fewer crimes than released convicts who are not subsidized.
Nor do rehabilitation programs work. Summarizing research done by many hands, Wilson persuasively concludes that such programs—we have an infinite variety of them—rarely make any difference to the behavior of convicts upon release. Whatever the cost of the program, the rate of recidivism is unaffected. Wilson also finds that the behavior of convicts after being released from prison is no worse than the behavior of offenders who had been diverted to supervision (work release, probation) without imprisonment. So much for the “prisons are schools of crime” theory, which has helped many reformers—not to speak of the convicts themselves—to blame prisons for the crimes they punish.
Fortunately, however (another point Wilson strenuously argues that should be obvious), most criminals are quite deferrable. They respond to incentives and disincentives as people usually do, the cost of crime (mainly punishment multiplied by the likelihood of suffering it) being the disincentive, the advantage expected from crime being the incentive.3
To be sure, some offenders—not the most successful ones—may be so far gone that they are not discouraged by anything. But I would be content to deter the offenders who commit crimes because they expect a net advantage. The net advantage differs from person to person, according to character and opportunity. Punishments cannot ever be made harsh enough to discourage all prospective criminals. Yet even actual offenders seem to be quite responsive to punishment (and therefore to credible threats), as shown by their sedulous attempts to avoid it.
What weakens deterrence is that criminals succeed in avoiding punishment most of the time. Crime pays: for most offenders committing crimes is a rational response to the expected net advantage. According to Wilson, only three out of a hundred felonies ever lead to imprisonment. In New York such offenses as car theft, minor muggings, and minor burglaries have been de facto decriminalized. That is, they are hardly ever punished, as is evident when the number of these offenses is compared with the number of persons imprisoned for them (fewer than ten per year for car theft in the last few years).
What then is to be done? In view of the cost, Wilson is properly skeptical about increasing rates of arrest. And arrest rates certainly matter. So, however, do our scandalously low conviction and punishment rates, which Wilson does not mention. Even when caught, criminals are rarely punished. And the threat of punishment, however severe, becomes ineffective when it becomes incredible, whether because of low apprehension or because of low punishment rates.
But what about increasing the severity of punishment? Wilson seems illogical when he contends that added severity of punishment would not increase deterrence, whereas a higher probability of suffering it would. If one commits a high number of crimes every year, it cannot make much difference whether in a three-year period one is caught and punished twice, serving one year each time, or once, serving two years. Only for the amateur who commits a few crimes a year is there a difference: he might escape punishment altogether, if the probability of apprehension were low. But Wilson throughout focuses on career criminals.
I stress the importance of the severity of punishment for a more general reason as well. People who buy tickets to a lottery, as many of us do, are persuaded by the size of the prize; they discount the low probability of winning it. Might not disincentives work as incentives do?
If so, for persons tempted to commit crimes, the size of the threatened punishment could be dissuasive, despite the low probability of suffering it. They would discount the low probability of punishment, just as lottery-ticket buyers discount the low probability of winning the prize. I could be wrong: but only if fear and hope lead to different discounts—if the improbability of winning in a lottery is discounted more and the improbability of losing, of being punished for a crime, is discounted less.
Be that as it may, there must be an optimal (most deterrent) combination of punishment size and the probability of suffering it.4 Neither, therefore, can be neglected. Surely, trivial punishment, even if inflicted with high probability, will not deter. Thus the popular clamor for severity does not seem unreasonable to me.
In another instance as well Wilson clings too closely to statistics. While favoring foot patrols by policemen because they reduce petty nuisances by prostitutes, vagrants, drug dealers, drunks, groups of rowdy youths, etc., and thereby enhance a sense of order and civility, Wilson points out that increasing such patrols does not reduce crime. He bases this conclusion on experimental comparisons between similar areas, some with frequent foot patrols and others without, which show no difference in crime rates. But the increased foot patrols in question lasted only for one or two years. If they were continued for ten or twenty years, might not the orderly environment produced by them reduce the crime rate? No environmental change is likely to modify criminal habits once they have been formed, but when it comes to the formation of habits, an orderly environment—if it lasts long enough to influence the outlook of the young—may well reduce crime by favoring noncriminal habits.
Although he believes in deterrence as a way to control crime, Wilson believes in incapacitation more. “Almost no one doubts that incapacitation works: a man in prison cannot harm persons outside.” On the (questionable) assumption that imprisoned criminals are unlikely to be replaced, he also seems to identify a reduction of the number of crimes committed by each prisoner, or by all prisoners, with a reduction of the crime rate.
The same assumption explains why, for some time now, prosecutors have tried to focus on career criminals in securing convictions and long-time imprisonment. By keeping career criminals behind bars, prosecutors hope to decrease the crime rate. But as Wilson points out, career criminals tend to be identified only after they have been convicted often and are reaching the end of their criminal careers. Most criminals become less active as they reach middle age, and before middle age few are convicted often enough to be identified as career criminals. Therefore Wilson proposes to imprison for a long time not (or not only) those who have the most convictions, but the offenders who are most likely to commit additional crimes in the future.
Peter Greenwood (another contributor to Crime and Public Policy) has made careful investigations in California (and others have indirectly confirmed his results elsewhere) concluding that, on the basis of such indications as juvenile convictions, drug use, etc., one can predict, with an 81-percent success rate, who will be a “low-rate” offender (committing slightly more than one burglary and slightly less than one robbery annually) and who will be a “high-rate” offender (no fewer than 93 burglaries and thirteen robberies per year). Greenwood calculates that if all convicted high-rate robbers and burglars served seven years in prison (most now serve less), “the number of robberies in the state would drop by about 20 percent.” If the time served by low-rate robbers and burglars were reduced simultaneously to two years (most now serve longer), there would be no increase in the prison population.
Accordingly, Wilson proposes a system of “selective incapacitation” which would involve “keeping sentences for [low-rate offenders] short so as not to consume scarce prison space needed [for the high-rate offenders].” In effect, “Most offenders would probably have their sentences shortened and the space thereby freed would be allocated to the small number of high-rate offenders whom [sic] even the most determined opponents of prison would probably concede should be behind bars.”
Wilson is aware of many potential objections to his proposal for selective incapacitation, ranging from doubts about the identification of high and low-rate offenders to objections against punishing convicts for what they are likely to do, in addition to punishing them for what they have already done. He deals as well with these objections as one can. But he does not deal seriously with objections that seem more serious to me.
One concerns prison space, the scarcity of which he takes for granted. It requires between $50,000 and $75,000 to build a prison cell and about $15,000 a year or more to keep a prisoner in it. Wilson does not mention that these outrageous costs—which help explain the scarcity—are the effect not of uncontrollable factors, but of mismanagement. Expensive locations for construction are selected on entirely unwarranted grounds. Available buildings, unless built as prisons, are not utilized. Security features, included in all prisons, are needed only in some. Further, prisons, properly managed, could be self-supporting. But prisoners are given no incentives, and often no opportunity, to do productive work.
Under these circumstances I think it is misleading to base policy proposals on the scarcity of prison space, as though it were an altogether exogenous and unavoidable fact—although, even at the present cost, imprisonment is cheaper than the increase in crime to be expected if we did with less imprisonment. The trouble is that the cost of imprisonment is borne by taxpayers, whereas most of the cost of crime is borne by the victims.
Another objection concerns Wilson’s belief that imprisoned criminals will not be replaced. This seems quite unrealistic. Suppose the most active dentists, shirtmakers, prostitutes, burglars, or car thieves in New York were incapacitated. I am sure that after a short drop the rates of dentistry, shirtmaking, prostitution, burglary, or car stealing would remain unaffected. These rates do not depend on whether particular persons engage in these activities, or are incapacitated. Rather, the rates depend on the net advantage actual practitioners obtain, and prospective practitioners expect, from these activities, compared to other activities available to them.
Expected comparative net advantage determines both the number of jewelers and of jewel thieves, of cars and car thieves. Incapacitation determines neither. If the expected comparative net advantage remains unchanged, so will the rate of activity, regardless of who is, or will be, active or incapacitated. If the advantage rises, so do the crimes. More of the gold chains people wear around their necks were snatched from them when the gold price was higher. In this respect, unlawful occupations do not differ from lawful ones except that some of the latter, such as dentistry, require training and a license, whereas burglary does not. It is easier to become a burglar.
But are there enough people ready to be enticed to replace the criminals currently practicing when they are incapacitated? Not everybody is willing and able to become a burglar or a dentist. And the net advantage of dentistry or burglary certainly is different for each person, depending on his moral preferences, his dexterity, and his situation in life, which determine the range of his other opportunities.
Yet experience indicates that there are enough potential dentists, or burglars, to replace any incapacitated ones if the average net advantage rises enough. These potential dentists or burglars were not lured into dentistry or crime before, because the average net advantage sufficed to attract neither more nor fewer than the current number of practitioners. But if more than the usual number of actual or potential practitioners were incapacitated, the rate of dentistry or burglary would drop temporarily. This would increase the net advantage to the remaining practitioners (the price of dental care, or of stolen goods, would rise), encouraging more new ones to enter, until enough did to decrease the net advantage once more to a level which would diminish the inflow of new entrants. Since the expected comparative net advantage is the benefit over cost, it can be influenced by increasing the cost—in the case of crime, the expected punishment. But incapacitation per se—i.e., apart from its punitive side-effects—plays no role.
I am not claiming that prospective dentists or burglars will engage in elaborate rational calculations to determine which profession to enter. Nonetheless, such calculations are useful in explaining their behavior, just as they help to explain the behavior of people migrating, or doing any number of other things.
The actual or future high-rate offenders Wilson wants to incapacitate are indeed responsible for a high proportion of crimes: 6 percent of the criminal population commits about a third of all crimes. I have suggested why I think that their incapacitation will not affect the crime rate. But what about the low-rate offenders who commit the remaining two-thirds of all crimes? By reducing their punishment, Wilson’s selective incapacitation would, I fear, encourage these low-rate offenders and actually increase the aggregate crime rate.
Wilson appears to believe that the high-rate offenders he wants to incapacitate start their criminal careers as identifiable future high-rate offenders. This seems unrealistic. They are likely to start as low-rate offenders and work their way up. They become high-rate offenders only because they find their offenses rewarding. And their offenses will be the more rewarding the milder the punishments they suffer initially, while they are still low-rate offenders. Wilson proposes to make their sentences shorter than they are now. This would encourage more nonoffenders to become offenders and more low-rate offenders to become high-rate offenders.
In discussing his proposal for selective incapacitation, Wilson scarcely mentions deterrence. He may well be right to neglect any deterrent effect on those he wants to incapacitate. Once offenders are identifiable as prospective high-rate offenders, they are likely to be too committed to be deterred by threats of punishment.
But Wilson is not right to neglect the decrease in deterrence to be expected from his proposal to shorten the imprisonment of low-rate offenders. They are deferrable precisely because they do not have—at least not yet—the characteristics of high-rate offenders. Low-rate offenders now average one burglary and one robbery a year. They will average more, once the threat of punishment is reduced; and there will be more of them. This could more than offset any likely decrease of the crimes committed by high-rate offenders.
Wilson is on much better ground with non-market-dependent crimes such as rape, or the taking of money by violence or fraud (as opposed to market-dependent crimes like burglary and car theft in which the proceeds can only be realized when they are sold). The rate of non-market-dependent crimes is determined, as is the rate of all crimes, by the comparative net advantage expected, which can be influenced by changing the cost—the punishment threatened. (There will be more rapes if the threatened punishment is a $5 fine than if it is five years in prison.) But since the rapist is himself the consumer of his proceeds, there is no market for rape. Incapacitated rapists, unlike incapacitated dentists or burglars, would not automatically be replaced, since their incapacitation would not raise the advantage of the crime to the remaining rapists and attract new offenders. Hence, incapacitating prospective high-rate rapists could reduce the rate of rape. However, unlike Wilson, I would not want to reduce the time served by low-rate rapists. To do so would encourage some to become high-rate rapists and it would also increase the total number of rapists.
Do I have anything reasonably feasible to propose that would reduce the crime rate, as Wilson’s selective incapacitation would not, without overly increasing the prison population? I do.
As Wilson notes, most criminals start their careers as juveniles. They are given effective immunity from serious punishment by our juvenile-court system, which is supposed to rehabilitate rather than punish them but does neither. The immunity we have sentimentally given juveniles does not deter them from crime and even lures them into self-destructive and antisocial criminal careers. My first and most radical proposal is to do away with the juvenile-court system.
When children under thirteen commit offenses, they should be dealt with by parents and—where parental control is demonstrably lacking—by social agencies acting in loco parentis. Persons over thirteen should be dealt with by the laws and courts provided for adults (though for obvious reasons juveniles should be imprisoned separately from adults). Counsel would remain free to try to persuade the court that his young client is incompetent. But incompetence should no longer be assumed automatically on the basis of age.
At present most first offenders get probation. The first crime is on the house—a prospect that does not discourage first offenses. Still, I would not object to the practice, were it individualized, so that probation were given only when the first offense was really a first offense, and not just the first (non-juvenile) conviction.
A second conviction, at any rate, demonstrates that the first did not discourage the offender. It should lead to serious punishment regardless of whether or not the convict himself is likely to become a high-rate offender. Since most crimes are committed by young males (under thirty-five and often under twenty-five), punishment for young second offenders should be harsh enough to deter them and their peers from pursuing criminal careers. For second offenses, youth should be a reason for severity rather than a ground for leniency.
But where would I get the prison space, Wilson—indeed most criminologists—will ask at this point? There are two answers. In the short run my proposal would indeed exacerbate the crowding. Shortages of space would have to be dealt with by shortening the sentences of offenders over thirty-five to whatever degree necessary to make room for the younger convicts. Perhaps the simplest way to carry out this change would be to order parole boards not to consider anyone under thirty-five for parole (with few exceptions) and to grant parole more generously to older convicts.
In the long run I expect that the proposed policy would deter more from crime than the present policy. As a result, we might have a greater proportion of criminals in prison (since they would serve longer sentences) but fewer criminals altogether and therefore not necessarily more convicts in prison than we now have.
Let me summarize. I do not expect much from selective incapacitation and think shortening the sentences of low-rate offenders would be counterproductive. But if we abolished juvenile courts and gave lengthy sentences to young offenders, particularly second offenders, I believe we could deter them from crime and thus reduce the crime rate, even if, for reasons of space, we would have to shorten the sentences of older offenders.
Until the current century the ancient profession of medicine probably killed as many patients as it cured. In its first hundred years the young science of criminology has done no better. But it is developing faster than medicine did. Wilson’s work—and fortunately he is not alone—bids fair to lead to debate, reexamination, and policy changes which may actually increase the cost of crime to criminals and reduce it for society.
1 Basic Books, 293 pp., $19.95.
2 Institute for Contemporary Studies, 334 pp., $21.95.
3 Perhaps an experiment might help. Let us significantly reduce the salary of any criminologist whenever he publishes an article against deterrence. If, thereupon, fewer such articles appear, deterrence works: criminologists can be deterred. And, since the unwritten articles would have been wrong, we would lose nothing by their nonappearance. If the number of articles against deterrence does not diminish, they would be correct. But, once more, we would lose nothing, since we would have the articles. However, in this case, I would concede that some criminologists are undeterrable. (The criminologists whose salaries were reduced were compensated by their psychic enjoyment of their writing or of their financial suffering—else they would not have opted for it.)
4 The statistics Wilson relies on are not relevant to the question he addresses. They compare combinations of seventy and probability, allowing only the uncontested conclusion that some combinations are less than optimal and may become optimal by increasing probability rather than severity. Given the current low probability of apprehension, this is likely to be the case for infrequent offenders (the majority) but not for the frequent offenders Wilson is concerned with. However, the two groups are not separated in the statistics he uses.