The progressive movement to divert nonviolent offenders to treatment rather than charging them with a crime has faced a drumbeat of criticism over the years focused on the same central theme: Criminals who don’t pay for their offenses are more likely to commit a crime again.
Now, a first-of-its-kind independent research study conducted in Suffolk County has undercut this opposition. The study, which analyzed nearly two decades of data, found that not prosecuting low-level crimes was more successful in directing nonviolent offenders away from the criminal justice system.
“Keeping these individuals out of the criminal justice system seems to have an effect; it seems to stop the path of criminal activity from escalating, and that’s the takeaway from this study,” said Anna Harvey, a professor at New York University, who partnered with colleagues from Rutgers University and Texas A&M University to conduct the review, which was published Monday by the National Bureau of Economic Research.
The report is among the first to support, with data, the progressive criminal justice movement away from tough-on-crime tactics and toward policies that divert defendants accused of certain low-level crimes to social service programs, rather than the criminal justice system. The belief is that the diversion prevents a cycle of incarceration and repeat offenses.
Suffolk District Attorney Rachael Rollins won a surprise victory in 2018 touting these types of policies, overcoming more conservative opponents who vowed to be tougher on crime. Since taking office in 2019, Rollins has had to fend off criticism that her effort to effectively decriminalize 15 categories of nonviolent low-level crimes such as shoplifting and driving offenses is too easy on criminals; her opponents argue that letting criminals go without punishment encourages them to commit more crimes.
Her critics have included police officers and commanders, as well as her fellow district attorneys. Former police commissioner William Gross, who retired in January, blamed Rollins’s policies for spikes in street crime last year during the pandemic.
A spokesman for Boston police said Monday the department had no official position on Rollins’s policies, and that he had not seen the data and could not comment on the report. A spokesman for the Boston Police Patrolmen’s Association, which represents hundreds of police officers, did not respond to a request for comment.
Former Boston police commissioner Edward Davis, who now works as a security consultant, said that the report’s findings seem promising, but he suggested that any decision on whether to prosecute crimes should reflect the concerns and needs of individual communities. Davis said he had not seen the report, so could not comment on it directly, but he opposes any wholesale decision to not prosecute crimes.
“At one point you have to draw a line,” he said. “There’s definitely too much incarceration, and I’m glad to move away from that. But if you want to protect neighborhoods, you also have to look at behavior and address disorder. People want to be safe in their neighborhoods.”
Rollins granted the researchers’ request for unprecedented access to the data in February 2019, a month after taking office. She vowed it would be a real-time test of her public policy positions, and committed to using the research findings to shape her future policies, even if the findings turned out to be contrary to her efforts.
“We would be adapting right now because at the end of the day, it’s not about policies, it’s about what are we doing to keep the people of Suffolk County safe,” she said in an interview about the findings.
She added, “What I hope this does is say we are really serious about data-based, and evidence-based solutions. This data shows the policies we proposed are working.”
The review, titled “Misdemeanor Prosecution,” found that defendants whose misdemeanor charges were dropped before arraignment were 58 percent less likely to return to the criminal justice system for a subsequent offense within the next two years, and were more likely to avoid charges for any serious violent crimes: Only 24 percent returned to court for another offense within two years, compared with 57 percent of defendants whose misdemeanor charges were fully prosecuted.
The study initially reviewed cases from Suffolk County — including Boston, Chelsea, Revere, and Winthrop — from 2004 to 2018, during the tenure of former Suffolk district attorney Daniel F. Conley. Though Conley never implemented a wholesale policy to dismiss certain charges, and had a more conservative approach, it was not uncommon for his prosecutors to exercise their discretion and drop nonviolent cases.
But a review of cases in 2019 and 2020 over the first two years of Rollins’s administration, which had a more deliberate approach, found the same success in diverting defendants away from subsequent offenses and a return to the criminal justice system.(The study of the more recent data in 2019 and 2020 could only measure whether defendants returned to the system within one year, rather than two, but the trends were similar.)
Harvey said the goal of the study was to find out the effects of dropping certain misdemeanor cases: Did it help divert defendants from the system? Did it encourage them to commit a new crime?
She said researchers focused on Suffolk County data because Rollins gave them access, in what Harvey called a rare agreement by a prosecutor to put their political policies to the test.
“She said, ‘I want to know the truth,’” Harvey said. “‘I need to know: Are these policies harmful to the public or beneficial?’”
Alexandra Natapoff, a Harvard Law School professor who was not involved in the study but has conducted similar work, said the research — and Rollins’s willingness to make the data available — reflects a broader realization in criminal justice circles that tough-on-crime approaches don’t always work, and that prosecutions for minor crimes can have lasting, unintended consequences for a defendant.
What’s more, the burden of having a case proceed through the criminal justice system could cause hardships to a defendant, economic and otherwise. The study found that charges not dismissed at the outset could take six months or longer to proceed through the courts. And even then, only a quarter of those cases end up with a guilty finding, the study found, suggesting that a policy to drop such cases earlier in the process can help reach the same conclusion far sooner.
“This [study] is extraordinary insight into the way this public policy actually operates on the ground,” said Natapoff, author of the book “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.”
“The potential for greater justice, greater public safety, and greater cost savings are enormous,” she said.
Rollins said that since taking office two years ago, she has given community groups and law enforcement officials a greater say in the process, and their involvement has influenced a prosecutor’s decision to move forward with certain charges, such as in cases of shoplifting, or when a defendant was arrested as a last resort after being given a chance to correct their behavior. She also said that she recognizes that even nonviolent crimes can still plague communities and that they deserve their own consideration.
But she returned to her message from three years ago that the current criminal justice system has created undue hardships and created inequities in communities of color, and that officials should focus on directing defendants away from the cycle of the criminal justice system.
“Accountability does not need to have incarceration,” she said. “That’s the key point, where once I’m arraigned, that’s a tattoo or a brand that goes on my criminal history, that cannot be undone.”