Young parents are often surprised when they realise that punishment does not work for their children very well, if at all. The reason is the assumption of rationality that has to be satisfied for the punishment to have the expected effect. The target of the punishment is assumed to be free to make choices and govern them by understanding the trade-offs. The assumption obviously fails for children. Some parents, as a joke, even equate their children with miniature drunks. They bump into things, laugh, cry, and fall asleep on toilets.
This intuition carries over into many other settings. The assumption of rationality fails in a large class of crimes. In these crimes, the offender’s behaviour is so heavily preconditioned by the socioeconomic environment that they effectively lose agency in their actions. A leading example of these crimes is illicit drug use.
Criminal justice system as an ongoing trial
Most drug users apprehended by the police are sanctioned. This “lesson” aims to discourage users from using drugs or committing any other crimes in the future. But does it? Our new study, which uses a novel robust design, shows that fining users of illicit drugs does not achieve these goals. All it does is saddle users with debt.
How do we know that fining those who use illicit drugs does not work as intended? We cannot run an experiment, as it would be highly unethical. Instead, we use a quasi-experimental design that ingeniously combines two aspects of the criminal justice system.
The first aspect is the “equality before the law” principle that all cases should be treated impartially. In practice, this is implemented by randomly assigning judges to cases. The second aspect of the design is judicial disparity. Some judges are more likely to select a penalty than others. So for a given case and knowing the judge, we can predict the verdict. This prediction and the fact that defendants face judges randomly allow us to interpret the criminal justice system as a large-scale randomised trial, where each judge is a treatment arm.
This is the cutting-edge design that is currently revolutionising the field of criminology. It allows receiving convincing answers to challenging and otherwise intractable questions. The design has been recently used in highly influential studies in the USA and Europe. One thought-provoking discovery underpinned by this design is that parental incarceration may be beneficial for a child. This is because parental figures prone to criminal activity transmit criminal behaviour to a child, while incarceration severs this transmission. Treating other factors unchanged, this severance benefits the child.
Pain for pain’s sake?
In our study, we focus on the NSW population of drug use offenders and ask if fining them affects three future outcomes: (1) any crimes committed following the fine; (2) any drug crimes committed; and, lastly, (3) any drug crime involving the same drug as the one that attracted the fine.
Before applying the quasi-experimental design, we first treat the data as an observational follow-up (cohort) study (the traditional approach in medicine or criminology). We show that the fine did not only not discourage criminal activities but also exacerbated the problem, as those fined were more likely to commit crimes in future. Australian penal abolitionists commonly cite findings of this sort to support their views.
But there’s a problem with this approach. For example, to some extent, the fines do not make people re-offend, but people who get fined are more likely to be serious or repeat offenders. However, the follow-up design mistakenly attributes all possible reasons for re-offending to the punishment.
The results are different when we use the allocation of judges to cases to randomise fines among defendants. Similarly to a randomised trial, this design pins down the causal effect of fine on the outcomes. None of the estimates is statistically significant. The fine does not reduce the probability of future crimes. Not only that, but they also do not cause future crime, as many fear.
In effect, fining those who use illicit drugs is simply taxing (or licensing) them. It’s a regressive tax because most of those arrested for drug use reside in lower-income neighbourhoods. This is a meaningless policy objective and, one could argue, a waste of chronically overused criminal justice system resources.
Sanctioning can be a powerful tool to promote public safety. For example, the same quasi-experimental design has convincingly shown that imprisonment can reduce criminal activity reliably and substantially. But generalising this conclusion to drug offenders is dangerous, as it ignores the complexity of the addiction epidemic and fools us into complacency.
Regardless of how the public feels about the drugs, criminalising addiction does not work (except in the rarest cases). A feasible way out of the addiction epidemic involves a combination of many different approaches, united by the principle of harm reduction.
The Wire, a successful TV show, offers a great visual introduction to this approach. A key third-season storyline is the creation of “free zones,” in which illicit drugs could be sold and used without police interference as long as there is no violence. Crime rates dropped, the use and sale of substances were kept out of the public eye, and community morale improved. The initiative was quickly shut down once high-level politicians learned about it. This unfortunate scenario repeats itself in real life over and over again, even today.