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  • Criminal Law Section Blog
    October 15, 2021

    New Recidivism Study Contains Surprises

    A recent Bureau of Justice Statistics study says that most former prisoners are reconvicted of a new offense or are returned to prison within 10 years of their release. Michael O’Hear outlines the study’s results, which also say that, for those who avoid rearrest in the first three years, recidivism rates drop sharply over time.

    Michael O'Hear

    prison cell door

    The recidivism risk of individuals who have been sentenced to prison often figures prominently in criminal justice policy debates.

    Nationally, the most frequently cited recidivism figures come from a series of large-scale studies conducted by the U.S. Department of Justice’s Bureau of Justice Statistics (BJS). The BJS recently released its latest recidivism report, and this one is its most ambitious yet – covering repeat-offending over a ten-year period following release from prison.

    About the Study

    The BJS tracked recidivism by a randomly selected sample of about 73,600 individuals released from prisons in 24 states in 2008. This sample provided a basis for estimating recidivism among the entirety of the 409,300 prisoners who were released from the 24 states that year. Wisconsin was one of the participating states.

    Michael O’Hear Michael O’Hear, Yale 1996, is a professor at Marquette University Law School, Milwaukee, where he teaches criminal law and related courses.

    The results are not encouraging. In all, the BJS estimated that nearly 82% of the released prisoners were arrested for a new offense within 10 years. Excluding two states for which court data were not available, about 69% of the released prisoners were convicted of a new offense. Finally, excluding six states for which the necessary corrections data were not available, nearly 61% of the released prisoners were returned to prison, either on a new sentence or for violating a release condition.

    Overall, the data suggest that a majority of released prisoners fail in some way that matters to the legal system.

    Post-release Recidivism

    It bears emphasis, however, that not all of these failures represent major new incidents of criminal victimization. Murders and rapes were relatively rare among all of the repeat-offending. Only 1.2% of the released prisoners were subsequently arrested for a homicide, and only 2.5% for a rape or sexual assault.

    In all, about 40% were rearrested for a violent offense of some sort, overwhelmingly non-sexual assaults (including misdemeanor-level assaults). More commonly, rearrests were for drug offenses or public-order offenses (a broad catch-all that includes OWI, felon in possession of a firearm, and violation of a release condition).

    Notably, and perhaps contrary to widespread beliefs, the recidivism rates of those who were convicted of violent crimes do not stand out as much more troublesome than those who were convicted of nonviolent crimes. Indeed, individuals serving time for violent offenses were less likely to be rearrested than those serving time for property, drug, or public-order offenses. They were, however, somewhat more likely to be rearrested for a new violent offense (44% of the time, in comparison with the overall rate of about 40%).

    Those who had been convicted of homicide or sexual assault had the lowest rates of rearrest and rearrest for a violent crime, but had somewhat elevated rates of rearrest for a new homicide or a new sexual assault, respectively.

    Time Matters

    Perhaps the most encouraging aspect of the data is the declining likelihood of rearrest over time. Rearrests were relatively common in the first three years following release. However, for those who made it through the first three years without a rearrest, fewer than 15% were rearrested in year four.

    That figure continues to decline in subsequent years. By year 10, for those who still had not been rearrested, the odds of a first rearrest were only about 4%. This pattern suggests that long periods of post-prison supervision are normally unnecessary, as are collateral consequences that persist long after the completion of the sentence, such as prohibitions on working in certain fields.

    The BJS results thus dovetails with another notable body of research summarized ​in Criminology & Public Policy in 2017, indicating that an ex-offender who manages to go about six to 10 years without a new arrest is not much more likely to be arrested in the next year than a person of the same age with no criminal history.

    Policy Implications

    More broadly, the policy implications of the new data will surely be a matter of debate.

    On the one hand, high rates of post-release recidivism seem to call for longer terms of imprisonment.

    On the other hand, in light of evidence suggesting that the experience of imprisonment itself may sometimes contribute to post-release recidivism (see, e.g., this 2016 study in the Journal of Criminal Law and Criminology), greater consideration of alternatives to imprisonment may also be warranted.

    Some will also see in the grim recidivism data a reason for society to invest more resources into evidence-based rehabilitative programming in our penal institutions (see, for example, articles in the Journal of Contemporary Criminal Justice and Criminal Justice Reform) and more effective methods of post-release supervision as discussed in the Marquette Law Review in 2020.

    This article was originally published on the State Bar of Wisconsin’s Criminal Law Section Blog. Visit the State Bar sections or the Criminal Law Section webpages to learn more about the benefits of section membership.





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    Criminal Law Section Blog is published by the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Michael O'Hear and review Author Submission Guidelines. Learn more about the Criminal Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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