Certainty and Severity

We usually expect crime to be more responsive to the certainty of punishment than to its severity in terms of fine or sentence imposed. The best explanation I've seen is that having any criminal record comes with a very large fixed cost regardless of sentence imposed: your chances for professional employment diminish and social sanctions apply. Consequently, differences in delivered sentences have only minor effect on the likelihood of offending if the informal penalty is large relative to the formal penalty and is not particularly increasing in the judicial penalty assessed.

A Canadian Ministry of Justice report finds that differences in first offence drink drive sentencing do not predict an offender's likelihood of re-offending. A straight punishment severity story would have that a more harshly punished offender will be more nervous about reoffending than will someone let off with a light sentence; that wasn't found.

The CTV piece concludes this is due to the severity of sentencing having little effect; they then conclude that Conservative crackdowns on repeat drink-drive offenders will not affect the likelihood of reoffending. But I'd be a bit nervous about drawing that conclusion without seeing the internal report cited. A few things I'd worry about:

• Suppose a judge assesses costlier penalties on offenders who are more likely to re-offend and lighter ones on those less likely to re-offend. In the absence of any penalties, there would be strong differences in likelihood of re-offending; in an equal-penalty treatment, there would also be reasonably large heterogeneity in recidivism rates. The higher penalties assessed to those perceived to be high risk may bring their recidivism rates down to those exhibited by lower risk offenders. You need some instrument to sort out causality.
• Drink driving convictions in Canada come with a one-year driving suspension for first time offenders. The costs of this are massive relative to a $600 or $1000 fine. How much would you be willing to pay to avoid a one-year license suspension? $5k? More? We'd need to know a lot more about the monetized value of the variance in imposed first-time penalties to know whether it's washed out by the fixed cost of losing your licence.
• If the variation in penalties for first offenders is small relative to the increase in penalties assessed for recidivists, it's hard to draw conclusions from the former about the latter.

HT: @DanGardner

Sentencing floors

Dan Gardner is right that mandatory minimum sentencing often yields perverse outcomes.

Now look at that first mandatory minimum sentence again: It means that anyone who grows six marijuana plants with the intention of sharing even a single joint with a friend will be guilty of an offence punishable with a mandatory minimum sentence of six months in jail.

And remember the phrase "real property that belongs to a third party"? That's what a rented apartment is. Imagine a university student living in a rented apartment with her boyfriend, suggests University of Toronto criminologist Tony Doob. She grows a single marijuana plant. She rolls a joint for her and her boyfriend. And just like that she's a "trafficker" subject to a mandatory minimum sentence of nine months in jail.

Are these outcomes simple, clear, and predictable? Hardly. They're shocking as hell. But mandatory minimums have a nasty tendency to do that.

He argues mandatory minimum sentencing has no deterrent effect. I'm not familiar with that literature, but mandatory minimums in the form of three-strikes legislation have substantial deterrence effects. They just may not be worth the candle.

Gardner nails one other point though:

But mandatory minimums don't actually do away with discretion.

They merely transfer it from judges, by restricting their ability to choose the sentence, to prosecutors, who choose the charge. The system is still ambiguous, uncertain, and unpredictable. It's just ambiguous, uncertain, and unpredictable in a different way.

Discretion lets prosecutors extract plea bargains to lesser charges from risk-averse defendants facing ridiculous minimum sentencing if convicted.