Sentencing

The Unfocused Professor: How Sentencing Connected All the Dots

When I first started building a research stream on sentencing with Anne Piehl in 1998, I was questioned by senior faculty concerned about my lack of focus. Assistant professors, especially marginal ones like me, were encouraged to build one pipeline and get tenure on that pipeline. Here I was, building a pipeline on employment, life course, methods, and also sentencing.

What was I thinking?

A Powerful Partnership and a Niche

Well, a few things. Anne Piehl was the only other economist at Stanford's Center for the Advanced Study in the Behavioral Sciences in 1998 for the summer session on violence run by Ken Dodge and Rob Sampson. Smart economists stick together on a mountain when surrounded by psychologists and sociologists.

Second, she was genuinely interested in courts as a system. Her interest in the actual system and my interest in the life course of people made a powerful combination. Although our papers are not always well cited, they are among the best papers I have written because of the beauty in the way Anne and I worked together (2001, 2011.

Third, the sentencing literature in criminology didn’t seem to take econometrics, modeling, or theory that seriously, so it seemed like a place where we could make an impact quickly. We were wrong—gatekeeping is a real thing, perhaps because we rather impolitely told people they were doing it wrong (Bushway, Johnson, and Slocum 2007).

But the fourth and real reason goes way back to the insight in Bushway and Paternoster and the criminal career model. Contact with the criminal justice system could be a real turning point towards desistance for people (Lebel et al. 2008).

My mom loves the joke about how you always find something you lost in the last place you look. The criminological version of this is that people in the system who desist always have a last spell in the system. While no one is a fan of prison, many people do talk about the positive things that happened in prison and probation that let them move to a new identity. Instinctually, I think I knew I needed to understand the sentencing process if I was to ever understand how the criminal justice system could play a role in desistance. This early career intuition was ultimately fulfilled in a series of papers with David Harding in which we looked at the impact of sentences on subsequent offending using data from Michigan (2017, 2018, 2019, 2021, 2024).

This same basic interest in how the system actors can affect offending trajectories sparked my interest in the "School to Prison" pipeline when economist Lucy Sorensen joined the UAlbany faculty. She is an expert on school finance, and we won a grant to study the impact of school resource officers (SROs) on school safety and student outcomes. We published multiple papers together, including the first national study of the impact of SROs, as well as a study of cohort differences in prison spells.

A Sobering Dose of Policy Reality

My work in sentencing exposed me to more real policy—I was on the New York State Permanent Commission on Sentencing for 10 years. Two things I learned there: the system doesn’t have a clear idea of what it is trying to accomplish (ask eight people about the goals of sentencing and get twenty different answers), and good research will lose to committed partisans who know the system every time.

During my career, I have had four reports moth-balled by clients, in each case because they were concerned about how the results might be received if published. Each time, it's been sobering and depressing, but no more so than when Greg Ridgeway and I did a pro bono report on racial disparity in sentences to prison in New York. The Commission tabled the report, and then the Commission was disbanded by the chief judge. We published the paper (Ridgeway, Moyer, Bushway), but without the names of the counties, the results had no impact on the sentencing debate. We had identified a real set of problems that people on the ground could recognize, and it got squelched anyway.

One bright spot in this miserable experience is that I just finished a paper with Derek Neal, Steve Raphael, and Andrew Jordan bringing a new approach to the study of racial disparity in the courts. It is my hope that this new framework will spark a more constructive conversation about ways to identify problematic racial bias in the system. The approach shares some features with the legal framework from Title VII that governs the identification of racial disparity in employment (and that drives the EEOC guidance around background checks).

A Demographer’s Perspective on Crime

The other thing that my work on sentencing did was expose me to the raw data on who is in prison. I was lucky enough to run into Herb Smith at a demography conference. Herb was a crazy-smart demographer at UPenn who is an expert on age-period-cohort models. One of the first things he ever said to me was that criminologists had the age-crime curve all wrong because we were taking snapshots of the age profile of people arrested or in prison in a given year. We weren’t following cohorts over time, like demographers do for other phenomena like fertility.

His comment completely baffled and intrigued me at the same time. It took me a while, but eventually we wrote two papers about the differences in criminal justice involvement across birth cohorts (Porter et al., Shen et al.). Based on this work, I predicted six years ago at a conference that the prison population would drop 30% by 2030. We are already there—and Keith Humphreys used the same data and the same insight to predict the prison population would drop 60% by 2035 even if we do nothing to change sentencing.

This work is a nice combination of my interest in trajectories and sentencing. It is also an example of how public perception and the factors often misalign. I once had the uncomfortable experience of being told after a board meeting at RAND that my work showing that crime and racial disparity in the criminal justice system were at 30-year lows couldn’t possibly be true. The good news is that the changes are so dramatic—50% drops in the number of people under the age of 30 in prison, 75% drops in the arrest rates of people under the age of 18 -- that at some point, people have to take them seriously. Or so I, the eternal optimist, believe. It's what gets me up in the morning.

Plea Bargaining

Many criminologists describe the less sentence given to people who plea as a trial penalty. But, to an economist, this lesser sentence is clearly a plea discount. An individual choosing between a trial which includes the potential for an acquittal and a plea deal will only take an offer which is less than the outcome at trial.

I teamed up with psychologist Allison Redlich on a series of cool papers showing this in both sentencing data and in a web-based experiment with working members of the courtroom workgroup (2012, 2014, 2016). This work led to an experiment in Pittsburgh where we were able to randomly assign public defenders to shifts for bail hearings. We found having a lawyer led to positive outcomes for the defendant at low/no cost to society.

Selected Papers

Bushway, Shawn and Anne M. Piehl (2001). "Judging Judicial Discretion: Legal Factors and Racial Discrimination in Sentencing," Law and Society Review 34:733-764.