Desistance Isn’t Futile

Figuring out how to end recidivism has been an issue since humanity started punishing people for committing violations of law and other moral imperatives. Unless the punishment involved permanent exile or capital punishments such as stoning, burning or beheading an offender, societies have been confronted with how to reintegrate the person back into the culture, with little or no risk that the person would offend again. The current theory is known as desistance. It involves the process of getting a person to abstain from crime “after showing a previous pattern of offending,” according to Her Majesty’s Inspectorate of Probation. However, the matter has always been more easily said than done.

When a person tries to re-enter society, they may encounter obstacles outside of their own control. For example, there are occupations that limit or entirely restrict justice-impacted people from entry. In addition, many employers are reluctant to hire a person with a criminal conviction record. This is true even if the prospective employee never spent a day inside of a prison or jail. Finally, many justice-impacted people find it hard to locate suitable housing. In many cases, they end up in the so-called “wrong side of town,” getting back into the same patterns that led to the offending in the first place. Desistance theory seeks to overcome these barriers while providing a framework for the justice-impacted person to “desist from” committing future crimes.

The Age of Innocence

The earliest desistance theories revolved around an understanding of psychology and biology. In general, the human mind does not complete its full development until a person is somewhere between the ages of 25 and 30. As a result, things like impulse control do not fully form until later in life. Impulse control has been defined as the ability to understand the ramifications of our decisions and to control those negative impulses that compel us to offend.

The theory is that, in time, the majority of people will “grow out” of the compulsion to commit crimes. This is borne out by data that suggests that a person is more likely to commit a crime from their mid-teens through their late twenties.

Problems With Waiting for People to “Age Out”

There are a number of major problems with waiting for people to “age out” of their prime crime-committing years. The primary issue is the negative impact of incarceration on the growth of an individual. While a person is spending those prime years inside of a prison, his or her peers are going through the normal life-developing rituals of completing their education, entering the job market and starting families.

Thus, when they leave incarceration, these justice-impacted individuals find their growth stunted by the experience of incarceration. While their peers are all dealing with the usual successes and travails of 30 and 40 year olds, the justice-impacted people are just starting out. It’s not unlike what Roger Waters sang in the classic Pink Floyd song “Time”: “And then one day you find ten years have got behind you. No one told you when to run, you missed the starting gun.” 

The other key problem is the innate passivity of this approach. If we wait around for individuals to grow out of this youthful, impulsive behavior, we may find ourselves waiting around a long time to address the problem. Furthermore, it doesn’t account for the large number of nonviolent crimes committed by middle aged or older people, such as drug offenses, driving while intoxicated and white-collar crimes. There is no aging out for these justice-impacted people.

Stable Homes = Stable Lives

More recent approaches to desistance theory posit that the key to reducing crime is by providing people with stable homes and jobs. As the theory goes, this, in turn, will lead to stable lives. There is some strong support for this concept. People who have stability are less likely to commit crimes.

As former Philadelphia District Attorney R. Seth Williams points out, “One of the most profound ways we as a city can save young men caught up in violence is by giving them a skill that can provide them with a purpose in life.” Williams then goes on to argue that vocational training programs will help those youths who are at risk avoid the downward spiral that begins with their first arrest. At the same time, he says, it provides a pathway to re-entering society after incarceration for those already negatively impacted by the criminal justice system.

From Prison to Prosecutor

Williams knows what he is talking about. Not only was he the DA for Philadelphia, but he is also a justice-impacted individual. As he explains: “I served three years in federal prison and saw first-hand the challenges for prisoners without the basic skills necessary to function in the workforce. While in prison I taught other prisoners a variety of skills from writing to music and poetry.” It is this education that can provide a pathway toward ending the school to prison cycle for so many individuals.

Moreover, the goal of desistance theory is to help at-risk individuals develop strong and stable relationships within their community. For example, there is some evidence that people in stable marriages are less likely to commit offenses. However, this is not in and of itself a panacea for criminality. There remain plenty of happily married people who wind up on the wrong side of a criminal indictment. Still, a justice-impacted person leaving prison to come home to a loving and supportive family and a steady income-producing job is less likely to become a recidivist.

Ending the “Perma-Felon” Label

One of the biggest obstacles for desistance programs is the “perma-felon” label handed out to anyone convicted of a felony. Currently, there are few ways for a justice-impacted individual to escape the permanent label as a felon. At the federal level, the only remedy is a Presidential pardon.

During the Trump administration, Americans submitted more than 1,969 petitions for a pardon to the Pardon Attorney. The administration only granted 144. Filing a petition for clemency will not remove the continuing restrictions that apply to people who still have a felony record. Depending on the state, there are often more ways to remove a felony conviction from one’s record at the state level. But this involves a great deal of time, effort and money, resources that most justice-impacted individuals find in short supply. 

The problem is that our American perma-felony undermines all the efforts at building successful desistance programs. As Shawn D. Bushway and Christopher Uggen of the Brookings Institute make clear, “It makes little sense for a system to encourage or support the adoption of an identity if the people who pass through it are marked as unredeemable. The expansion of broad-scope collateral consequences restricting access to education, employment, public assistance, parental rights, voting, volunteer service, and virtually every aspect of adult life assumes that people who engage in crime are irredeemably criminal.”

Making it more difficult for justice-impacted people undermines the work of re-entry programs. The situation becomes self-defeating, with the system literally working at cross-purposes. Only through eliminating these collateral, post-incarceration consequences can the programs developed through the desistance theory have a real chance at success.

A Positive Approach to a Negative Situation

Desistance theory’s biggest proponent is that it is a positive theory to a very negative situation. This nation has become very good at punishing people for committing crimes. So much so that we have become the world’s largest jailer, with the US contributing on 1 in 25 people to the world’s population but 1 in 4 people to the world’s prison population. Nevertheless, as good as we are at jailing people, we are not very adept at helping them re-enter society.

As Bushway and Uggen point out, “Continuing to punish people beyond their sentences is fundamentally contrary to the structure of this system of punishment.” We have spent practically the entire history of this nation punishing people, yet the problem of recidivism has actually worsened in the last few decades.

Clearly, punishment has not worked. Crime rates show that no matter how many people get incarcerated, there is little deterrence from this. Desistance is based on the fact that people will respond better to something that improves their lives. Placing the focus on integrating justice-impacted people back into society will have a better chance of success than relying solely on threats of re-incarceration for future offenses.

Meanwhile, removing the barriers to re-entry will make it more likely that the positive approach of desistance will succeed. We have yet to try this desistance approach here in the United States. But if this country is serious about criminal justice reform, then it needs to enact laws and bolster programs to provide a positive route to re-entry for justice-impacted people.