Prison Was For Punishment. Until 2017

California Penal Code section 1170 used to read as follows: “[t]he Legislature finds and declares that the purpose of imprisonment for crime is punishment.” The clarity of this finding is breathtaking. There are no references to incapacitation, rehabilitation, or anything else. In California, the reason for prison is punishment. Until 2017.

Former section 1170 stood in stark contrast with the Model Penal Code, the New York Penal law, and the prevailing ideas about criminal justice in American politics. These sources shy away from the idea of punishment. It’s almost a dirty word. Instead, they focus on ideas that are more palatable to the public, like rehabilitation. Even if there is overwhelming evidence that rehabilitation is a mirage, a concept that sounds good but doesn’t actually work. Restorative justice is equally vague and crowd-pleasing phrase, that I would describe as pablum if the stakes weren’t so high. No one can seem to agree on what it is: the Wikipedia article alone has at least three competing definitions. But most importantly (and unfortunately), there is no empirical evidence that it reduces crime or recidivism. Incapacitation is a concept that is commonly included in the purposes of punishment, but was also missing from section 1170. Up until 2017, punishment stood alone as the function of prison.

Assemblymember Shirley Weber

Penal Code section 1170 was amended on January 1, 2017 by AB2590. Assemblymember Shirley Weber sponsored the bill. She called it the “Restorative Justice Act.” Weber is a former professor of African-American Studies at San Diego State University. Chased out of Hope, Arkansas, her family moved to Los Angeles when she was child. She went to UCLA, where she earned a doctorate in communication in 1975. She is the widow of judge Daniel Weber and a mother of two.

That bill changed the legislative findings and declarations so that “the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice.” It also directed the California Department of Corrections to change its mission statement to conform to the new purpose of sentencing. The new section reads, “[t]he Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice.” (Pen. Code section 1170(a)(1).)

I think it’s worth noting that AB2590 did not actually change anything about how the criminal justice system works. Even though the bill is named after the concept of restorative justice, the bill didn’t actually implement any ideas associated with that concept. All AB2590 did was change the legislature’s mission statement and CDCR’s mission statement. It looks like a political gesture, not actual law-making, but then again, the legislature is a political place.

Before 2017, Penal Code section 1170 could’ve solved a lot of arguments. Especially arguments about mass incarceration, recidivism, and the purpose of prison. In California, before 2017, the purpose was brutally clear. Now, like many things in our justice system, this issue is up in the air.

Nothing Works Except Castration

Robert Martinson was a socialist during his life and would be a reformer if he were alive today. He ran for mayor of Berkeley as a socialist. He was active in liberal causes, and was even arrested as a freedom rider in the South in the 1960s.

He spent over a month in Mississippi jails, and wrote about his experience. His incarceration inspired him to study prisons and inmates as a professor later in life. In 1966, the New York State Governor’s Commission on Criminal Offenders commissioned a study by Martinson. He conducted it with two other academics, Douglas Lipton and Judith Wilks. They were tasked with determining an effective way to rehabilitate prisoners by reviewing 231 studies on the subject. The studies were conducted between 1945 and 1967.

Martinson reviewed:

  1. Educational and vocational training;
  2. Individual counseling;
  3. Group counseling;
  4. Transforming the institutional environment;
  5. Reducing sentences;
  6. Decarceration;
  7. Psychotherapy;
  8. Probation or parole instead of prison;
  9. Intensive supervision;
  10. Treatment in the community; and
  11. Medical treatment.

Once his review was complete, Martinson concluded that government had not found a way to rehabilitate prisoners. “[T]he represent array of correctional treatments has no appreciable effect – positive or negative – on rates of recidivism of convicted offenders.” In other words, none of the methods used in the 231 studies he reviewed were successful. He concluded, “rehabilitative efforts that have been reported so far have no appreciable effect on recidivism.”

He concluded that none of these work. He has “very little reason to hope that we have in fact found a sure way of reducing recidivism through rehabilitation.”

Martinson and his colleagues submitted a draft report to the Commission. The coauthors were reluctant to come out and say what the results of the report were. Martinson was not. “I undertook, on my own responsibility, to supply what the authors of this work could not or would not supply – a conclusion.” The Commission, whose purpose was to come up with a rehabilitation program in New York, was not happy to hear that they were wasting their time. His conclusion was suppressed. It later become available after an unrelated court case.

His conclusion caused a sensation and made him a public figure in the mid-1970s. “The press has no time for scientific quibbling and got to the heart of then matter better than I did.” Media asked, “is rehabilitation a waste of time?” His study became known as the “Nothing Works” study. Martinson himself often said that treatment added to the networks of criminal justice is “impotent.” James Q. Wilson’s thinking on the subject captured the moment:

It requires not merely optimistic but heroic assumptions about the nature of man to lead one to suppose that a person, finally sentenced after (in most cases) many brushes with the law, and having devoted a good part of his youth and young adulthood to misbehavior of every sort, should, by either the solemnity of prison or the skillfulness of a counselor, come to see the error of his ways and to experience a transformation of his character… We have learned how difficult it is by governmental means to improve the educational attainments of children or to restore stability and affection to the family, and in these cases we are often working with willing subjects in moments of admitted need. Criminal rehabilitation requires producing equivalent changes in unwilling subjects under conditions of duress or indifference.

(James Q. Wilson, Thinking About Crime, (rev. ed. 1980), at Ch. 9, p. 151.)

Wilson and Martinson were not alone in their conclusions. Other concurring scholars include R.G. Hood, Walter C. Bailey, and Leslie Wilkins. Wilson (and these scholars) point out that, although the press described the finding as “nothing works,” it would be more accurate to say that nobody has proved that “something works.” There have been many hints that some reductions in criminality for some kinds of offenders under some circumstances are possible. But no one has discovered a method that is consistent and effective enough to base public policy on. In fact, Wilson’s book presents evidence that treatment may actually increase the criminality of certain offenders. (Wilson, supra, at p. 157.)

Martinson’s conclusion is still controversial today. In recent years, reformers and the public at large have reached a consensus that rehabilitation should be one of – if not the only – goal of our prison system. The California Department of Corrections added “and Rehabilitation” into its name. But Martinson suggests that this movement is built on wishful thinking. The recent political consensus that we should rehabilitate not incarcerate is based on the assumption that we can rehabilitate. But what if that is not true? Martinson’s study has the potential to upend our politics on prisoners, and to radically change the way we treat them.


There was a strange finding amid Martinson’s bleak conclusions. “One type of surgery does seem to be highly successful at reducing recidivism.” Castration works. Not chemical castration: a Danish study on this subject, which was paired in treatment with therapy, showed that it was ineffective. Actual castration, however, reduced the rate at which a criminal committed additional sex crimes by 90%, and all crimes by 50%. Interestingly, castrated criminals still committed sex crimes 3.5% of the time. Martinson observed, “where there’s a will, apparently there’s a way.”

Does Something Work?

Martinson partially reversed himself later in life, writing “contrary to my previous position, some treatment programs do have an appreciable effect on recidivism. “[N]o treatment program now used in criminal justice is inherently either substantially helpful or harmful. The critical fact seems to be the conditions under which the program is delivered. Specifically, some programs work for prisoners but not parolees, work in group homes but not in juvenile detention, etc.”

However, in order to arrive at the conclusion that rehabilitation is possible, Martinson had to relax his standards. He reviewed less rigorous studies with fewer people. Importantly, he gave up understanding causality: “we reject this perspective as premature and focus on uncovering patterns which can be of use to policymakers in choosing among available treatment programs.” Here he seems to be saying that he cannot determine whether rehabilitation caused decreases in recidivism, despite his early statement that the programs have an “appreciable effect on recidivism.”


Martinson committed suicide in 1979 by jumping from his 15th floor Manhattan apartment, while his teenage son looked on.

“Consider the work of God: for who can make that straight, which he hath made crooked?” (Ecclesiastes 7:13.) “That which is crooked cannot be made straight: and that which is wanting cannot be numbered.” (Ecclesiastes 1:15.)

Longer Sentences Reduce Recidivism

At a courthouse in Seattle, Washington, defendants who plead guilty prior to trial are randomly assigned to a different sentencing judges.  These judges, as you would expect, have a range of ideas about sentencing.  Some are more likely to hand down prison time than others.  The luck of the draw can have a great effect on a defendant, who is understandably hoping for a lenient judge.  Moving from the most lenient judge to the harshest judge could double an offender’s sentence length.

This sentencing scheme is also fertile ground for researchers who want to study the effect of prison sentence length on recidivism.  Michael Roach and Max Schanzenbach, professors of economics and law respectively, studied the sentencing variations in this courthouse.  They found that “one-month extra prison sentence reduces the rate of recidivism by about one percentage point, with possibly larger effects for those with limited criminal histories.”

The authors caution that “extra prison time does not yield a statistically significant reduction in recidivism for offenders with more significant criminal histories.  They also note that they only studied relatively short sentences.  “The average sentence length in the data is nine months, and the median sentence is three months.  Thus, the results pertain only to low-level offenders mostly convicted of non-violent property crimes.”

Even with these caveats, this study has broad application for prosecutors and judges at sentencing.  Reducing recidivism is one of the chief goals of the criminal justice system.  This study seems to provide a clear way to do it.  Many defense attorneys believe that it is in the best interest of their client to obtain the shortest possible period of incarceration.  This study proves that belief wrong in many cases.  Judges should take note that they can rehabilitate a prisoner and reduce his recidivism rate simply by giving him more prison time at the outset.  This approach is backed up by more than slogans like “tough love.”  It’s now backed up by hard data.  And in addition to its rehabilitative benefit, additional jail time also accomplishes the purposes of general deterrence and rehabilitation.

I hope the criminal justice system takes note of this data.  Maybe we can improve the way we protect our communities while at the same time rehabilitating defendants.

Back I Fall

The word recidivism comes from the Latin recidīvus, which is composed of re- “back” and cedō “I fall”.

California has one of the highest rates of recidivism in the nation.  According to a 2014 report by the California Department of Corrections and Rehabilitation, 61% of those released from California’s prison system return within three years.  And nearly 50% of inmates who recidivate within three years do so within the first six months.

Definitions are important here.  The CDCR rate is calculated by counting those released from prison who return to prison, either in the form of parole violations or new crimes.  It does not count the number of former CDCR inmates arrested, convicted, or given probation.  Thus, a CDCR inmate may be released, commit a misdemeanor, be convicted, and sent to county jail, and still not be counted in the CDCR recidivism rate.  Nor does this rate include those who re-offend out of state.  As the Public Policy Institute of California points out, realignment also reduces the recidivism rate under the CDCR definition by moving prisoners to county jails.  Thus, even though the CDCR rate is shockingly high, it actually understates the problem of recidivism by using a narrow definition.

As the California Innocence Project puts it, these recidivism rates “represent a complete failure of the prison system to achieve its supposed goals of deterrence and rehabilitation.”

These statistics have implications for prosecutor during plea bargaining and sentencing.

Plea bargains should anticipate the likelihood that the Defendant will recidivate.  This may mean more incarceration time.  Studies show that an extra month in prison reduces the recidivism rate by 1%.  If a judge is resistant to this fact, prosecutors may want to suspend execution of sentence in order to make sure that the Defendant suffers actual consequences from a parole violation.  Judges are often resistant to these types of plea bargains because they take away a judge’s decision as to what kind of punishment to impose for a parole violation.  But light sentences given by these same judges may play a role in the sky-high recidivism rate.  Moreover, if a Defendant’s parole violation is merely run concurrent with a new violation, she suffers no actual consequence for the violation.  She will serve the same amount of time that she would if she had just committed the crime the constituted the parole violation.

Prosecutors and judges should craft sentences that reduce the risk of recidivism, particularly during the first six months, when most parolees reoffend.  The seriousness of an inmate’s commitment crime is often inversely related to her recidivism risk.  For example, second-degree murderers have a recidivism rate of 10.3% while car thieves have a 72.5% recidivism rate.

Both of these goals are especially difficult now that realignment has weakened the threat of returning the parolee to prison.