The Discrepancy between Empirical Knowledge and Crime Policy

THE KNOWLEDGE & POLICY DISCREPANCY1

The Discrepancy between Empirical Knowledge and Crime Policy

Globally, evidence-based risk assessment tools such as

the Level of Service Inventory-Revised (LSI-R; Andrews &

Bonta, 1995) and the Adult Actuarial Risk Instrument (AARI;

Maller & Lane, 2002) are continuously being developed and

refined to assist criminal justice institutes with the

management of offenders (Simon, 2005). These tools are based

on data collected over a certain point in time, which is

subsequently analysed according to particular offender

variables that correlate with recidivism risk (Andrews &

Bonta, 1995). Evidence-based risk assessment tools arose from

the need for administrators of criminal justice to predict,

with a reasonable degree of accuracy, whether recidivism (to

the offender and the community) was likely once an individual

was released from custody (Baird, Heinz, & Bemus, 1979). The

need was realised in the 1970’s after a number of court

challenges to the validity of laws and procedures under which

these persons were held in custody as ‘dangerous’ (Simon,

2005) were successful. This caused an academic backlash, and

prompted calls for existing procedures – specifically the use

of unstructured clinical judgements – to be discontinued (e.g.


Ennis & Litwack, 1974; Monahan, 1981). Academics also began to

raise questions about an issue that remains fundamental to

criminal justice some forty years later: should criminal

justice authorities or officers confine individuals on the

basis of their ‘future dangerousness’ (i.e. risk) rather than

because criminal punishment is deserved? (e.g. Edgely, 2007;

Robinson, 2001; Simon, 2005).

Presently, risk assessment is more important than ever to

criminal justice, given the constant political demand for

strategies to prevent crime (Ogloff & Davis, 2005). States are

constantly enacting new laws that either create new offences

(e.g. ‘one-punch’ laws) or that provide for the ‘treatment’ of

certain serious offenders (Edgely, 2007; Ogloff & Davis, 2005;

Robinson, 2001; Simon, 2005). Andrews and Bonta (1994) assert

that there are two types of risk factors, namely, static

(fixed) and dynamic. Dynamic risk factors are also referred to

as ‘criminogenic needs’ (Andrews & Bonta, 2003), and have been

identified as among the strongest predictors for recidivism

(Andrews et al., 1990a; Bonta, 1989). Some examples of

‘criminogenic needs’ are: 1) the offender’s family

relationships; 2) education and employment; 3) substance


abuse; and 4) emotional stability (mental health) (Gendreau,

Little, & Goggin, 1996). Ideally, legislation should recognise

these domains of risk and need, and be structured so that this

empirical understanding in integrated into decisions regarding

at-risk offenders, and that ‘what works’ according to science,

subsequently works in relation to the law. However, and as

will be discussed in several paragraphs time, the makers of

these laws consistently fail to utilise the established

principles of risk assessment, and subsequently, such

legislation is often ambiguous and unsystematic, not to

mention unjust (Ogloff & Davis, 2005).

Another concept to feature in the discussion to come is

‘deterrence’. Deterrence is widely understood to be the theory

that connects increased criminal penalties to a decrease in

crime rates (Bagaric & Alexander, 2011, p 269). When law-

makers introduce a new criminal law, they almost always cite

deterrence as being one of the principle objectives of that

law (Tonry, 1996, 2009). Although stricter criminal sanctions,

such as extended prison sentences, achieve various objectives,

deterrence unfortunately is not one of them (e.g. Anderson,

2002; Bagaric & Alexander, 2011; Pratt et al. 2006; Schiraldi


& Ambrosio, 1997; Tonry, 2009). In short, deterrence does not

work. As Anderson (2002) points out, a longer term of

imprisonment fulfills victims’ retribution desires (p 296). In

addition, incarceration has an incapacitating affect on

individuals; and a lengthened sentence inevitably prevents

convicted offenders from being able to commit further offences

for its duration, at least outside of the prison environment

anyway (Anderson, 2002, p 296). However, neither of these

factors have much value when it comes to a) deterring others

who might be contemplating a criminal act, or b) deterring the

incapacitated individual from committing new offences once

released (Anderson, 2002; Greenwood, 1983; Levitt, 1998). This

is because violent offenders do not commit violent crimes

frequently enough for incarceration to cause any significant

crime reduction (Anderson, 2002). As for theft offences; the

possible consequence of incarceration has little to no affect

on whether an individual does or does not commit one

(Anderson, 2002).

Over the last two decades, mandatory sentencing laws have

proliferated in common-law jurisdictions, particularly ‘three-

strike’ laws (Tonry, 2009). Typically these law provide that


for certain crimes (property, violent or drug etc,), those

facing their third conviction crimes be incarcerated for

lengthy period of time (Tonry, 2009). Although popular with

the public, these laws are a blatant example of the

discrepancy between knowledge and policy in the criminal

justice system (Tonry, 2009). Law-makers typically offer three

justifications for the imposition of mandatory sentencing,

namely 1) it ensures they who do the crime also do the time;

2) it provides transparentness whereby justice will be done

and society can see to this; and 3) it deters others from

committing crime (Tonry, 2009). Despite these justifications,

an overwhelming body of research indicates that, for each

political justification, the opposite is actually caused by

mandatory sentencing. In a comprehensive systematic review,

Tonry (2009) analysed multiple decades of research concerning

the impact of mandatory sentencing laws on the criminal

justice system in the U.S and other common law jurisdictions

including Australia. Tonry (2005) subsequently illustrated the

profound gap that exists between empirical evidence and law-

making, as well as a number of additional ‘unintended

consequences’ that mandatory sentencing has on the


administration of justice. One example of a consequence is

when judges and lawyers who believe a mandatory sentence would

be unfair, devise ways to circumvent mandatory sentencing. Not

only does this lead to inconsistency (some are spared the

penalty while others are not so lucky), but it is completely

adverse to the policy objectives in relation to transparency

and justice (Tonry, 2009).

As for the political justification that mandatory

sentencing has a deterrent effect on crime, the scientific

evidence to the contrary is abundant. For example, US

researchers Kovandzic, Sloan and Vieraitis investigated

whether three-strike laws influence crime rates (Kovandzic et

al., 2004). Two decades of crime rate data was collected from

188 US cities populated by 100,000 or more people. The

researchers found that cities in states that had passed three-

strike laws demonstrated no statistically significant

reduction in the crime rates due to either incapacitation or

deterrence (Kovandzic et al., 2004). These results are

consistent with other research findings (e.g. Kovandzic, Sloan

and Vieraitis, 2002; Marvel & Moody, 2001; Stolzenberg &

D’Alessio, 1997; Zimring, Hawkins, & Kamin, 2001).


Furthermore, and in support of Tonry’s (2009) argument about

‘unintended consequences’, three-strike laws are actually

linked to higher levels of homicide. For example, Kovandzic et

al. (2004) found a positive correlation between homicide rates

and some of the cities in states with the laws, supporting the

earlier findings of Marvel and Moody (2001) and Kovandzic et

al. (2002).

One of the most tenacious issues facing criminal justice

is the question of how to handle violent sexual recidivists

(Edgely, 2007). Sexual offences are considered among the most

heinous of crimes, and the very idea that those who perpetrate

them may be present amongst the community is troubling to the

public (Mercado & Ogloff, 2007; Robinson, 2001).To ease this

public concern, many jurisdictions have enacted several types

of laws which effectively deprive these serious offenders of

their right to liberty. The first type of law, that which

enables the ‘preventative detention’ of serious high-risk sex

offenders, aims to protect the community through detention

that continues after the expiration of their custodial

sentence (Edgely, 2007; Mercado & Oglaff, 2007). The other

type of law relates to community notification as to convicted


sex offenders; who they are and where they live (Robinson,

2001). These laws, commonly referred to as ‘Megan’s law’, are

a form of civil commitment compulsary to those high-risk sex

offenders convicted in at least half of the US states (Mercado

& Ogloff, 2007). While yet to enacted in Australia, there is

ongoing political discussion for similar legislation here

(Edgely, 2007). However, because of this jurisdictional

difference, discussion will be limited to ‘preventative

detention’ laws.

It’s perhaps necessary to point out here that sexual

offenders are considerably less likely to reoffend than other

types of offenders such as those who commit arson, drug or

theft crimes (Hanson & Bussiere, 1998), and that such offences

are relatively rare to begin with (Broadhurst & Maller, 1992;

Hanson & Bussiere, 1998; Hanson & Morton-Bourgon, 2005). On

average, the observed sexual recidivism rate – where a

convicted sex offender recommits a sexual offence – is between

10% to 15% (Hanson & Bussiere, 1998). Compared to the

recidivism rates for burglary and drug offences, the rate for

sexual offenders is therefore remarkably low (Hanson &

Bussiere, 1998). Given their infrequent occurrence, it’s


therefore interesting that sexual offences are able to conjure

such profound public outrage and concern (Mercado & Davis,

2007; Ogloff & Davis, 2005).

In 2004, shortly after Queensland became the first

Australian state to enact legislation specific to high-risk

sexual offenders, the constitutional validity of this QLD

legislation was challenged in the High Court case, Attorney-

General (Qld) v. Fardon (HCA 46, 2004). The QLD Act – the Dangerous

Prisoners (Sexual Offenders) Act (2003) – allowed for the post-sentence

preventive detention of sex offenders considered high-risk

sexual recidivists (Edgely, 2007). Robert John Fardon, the man

challenging the law, was the first offender to be affected by

it. Fardon had a history of recidivistic sexual violence, and

his imminent release was stirring significant public anguish

(Edgely, 2007).

There is little evidence that those who create

legislation for the management of sexual and/or violent

offenders give any consideration to the extensive body of

research that exists in relation to risk assessment, a concept

which featured early in this paper. The enactment of the

Queensland legislation was soon followed by law reform in


Western Australia, with the introduction of the Dangerous Sexual

Offenders Act in 2006. Both provide for the indefinite detention

of at-risk sexual recidivists upon the expiration of their

custodial sentence, however neither specifies a systematic

procedure for the assessment of individuals to be affected

(Ogloff & Davis, 2005). In determining whether an offender is

a serious danger to the community, the QLD Act, for example,

simply calls for ‘acceptable, cogent evidence, with a high

degree of probability’. This was translated by the High Court

to mean ‘unacceptable risk’ – a worryingly ambiguous term.

Fardon argued this concept of unacceptable risk lacked

practical content and that such a definition made decision-

making a ‘meaningless charade’ (Ogloff & Davis, 2005). In

their attempt to clarify what they meant by unacceptable risk,

the Fardon majority went on to suggest that the degree of risk

in question be understood as a ‘risk of serious harm’; ‘an

element of risk’; or a risk that carried ‘a real possibility’

(Edgely, 2007; Mercado & Ogloff, 2007).Needless to say, the

majority did little to help demystify what was meant by this

idea of unacceptable risk.


Domestic violence is another area of the criminal law

where politicians are eager to respond to community concern

and enact laws for the protection of victims. Laws such as

Queensland’s Domestic and Family Violence Protection Act 2012 and Western

Australia’s Restraining Orders Act 1997 formed from public policy

considerations that police were not taking this type of

violence seriously. These laws empower police to arrest,

without a warrant, any individuals whom they believe are

responsible for perpetrating violence on an intimate partner

(Iyengar, 2009, p. 85). WA is the only state that mandates

police take action (such as arrest) upon having suspicion that

violence is occurring (Ennis & Litwack, 1974; Monahan, 1981).

However, as most of the empirical research in this area has

been conducted in the US, studies from this jurisdiction will

be used to analyse whether these laws ‘work’.

Domestic violence mandatory arrest laws are in effect in

most U.S. states (Iyengar, 2009, p. 86). Like the WA law, the

US laws require police to arrest, without a warrant, any

individuals whom they believe are responsible for perpetrating

violence on an intimate partner (Iyengar, 2009, p. 85). In

support of these laws, US politicians cited the problematic


results from the government funded Minneapolis Domestic

Violence Experiment (MDVE) (Sherman & Berk, 1984). The MDVE

was a randomized experiment whereby arrests were found to be

an effective means of deterring future violence. However, as

warned by the researchers themselves and numerous critics, the

experiment had a number of limitations which influenced the

reliability of the findings (Sherman & Berk, 1984). Numerous

researchers have attempted to replicate its findings, and have

been widely unsuccessful (Davis, Smith, & Nickels, 1998).

Regardless, these doubtful MDVE results continue to form the

basis for domestic violence policy in the US (Davis et al.,

1998; Iyengar, 2009).

Fairly recently, Iyengar (2009) investigated whether

mandatory arrest laws affect the level of reported domestic

violence, as indicated by the MDVE. Like the earlier research,

Iyengar’s findings did not support the MDVE findings. In fact,

Iyengar (2009) found that mandatory arrest laws actually are

linked to increased domestic homicides, a finding clearly

adverse to the purpose of such laws. Similarly, Davis, Smith

and Nickels’ (1998) investigated whether the type of

prosecutorial avenue taken against perpetrators of domestic


violence offences affected the incidence of recidivism (Davis

et al., 1998). Regardless of the prosecutorial avenue (e.g. no

prosecution, case dismissed at trial, conviction and

incarceration), no evidence that it had any affect on

recidivism was found. These results are consistent with

related research which failed to show any link between

prosecution of DV and deterrence.

This paper has endeavoured to show that the rationale

behind the punitive and policy-driven laws which feature so

heavily in the criminal justice of common-law jurisdictions,

are greatly at odds with the empirical literature. Policy

discussions and debates about crime and justice are too often

emotionally charged and express political ideologies rather

than ideas (Zimring et al, 2001). It is understandable that

debates of this nature conjure intense feelings. After all,

the stakes in crime are high, extending from community safety

to matters of life and death. Given this emotional element, it

is all the more important that debate and discussions about

crime and justice be coherent, with passion kept to minimal

levels. Similarly, policy decision-making in this area should


be at the highest level of political discourse, and informed

by replicated and reliable scientific evidence.


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The Discrepancy between Empirical Knowledge and Crime Policy

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