The Truth about “Truth in Sentencing” in Florida: A Rebuttal to the Florida Sheriffs Association — Part 3

Note: This is part 3 of an ongoing series. To read Part 1, click here. To read Part 2, click here.

Truth in Sentencing and the Florida Crime Rate

The 85 Percent Rule and Florida’s Crime Rate

The crux of the FSA report’s argument is that crime has fallen substantially in Florida over the past several decades, and that the 85 percent rule is an important reason why. Crime is in fact at a near 50-year low in Florida, but the FSA report fails to establish a causal relationship between the 85 percent rule and Florida’s crime drop.

As an initial matter, suggesting one thing caused another thing because the second thing happened after the first is a fallacy known as post hoc reasoning. The FSA report commits this error by implying a causal connection between the 85 percent rule and Florida’s falling crime rate, but providing evidence only for a temporal relationship between the two.[1]

Crime is complex, and the causes of its rise and fall are notoriously difficult to analyze. Crediting any particular policy with a substantial impact on crime one way or another is usually unwarranted. In fact, all of criminal justice policy is just one of 13 variables the FBI includes on its list of factors that are known to affect the volume and type of crime, a list that is surely non-exhaustive.[2]

One review of the evidence found that in Florida, “Most likely, there is no single solution that, when effectively applied, resulted in this powerful long-term [crime] decline.”[3] The same analysis found the claim that Florida’s falling crime rates are a result of increased incarceration “is not clearly supported by the available statistics.”[4]

Second, as the FSA report notes, Florida’s crime drop followed similar national trends. Over the three decades since Florida’s crime rate peaked, crime was also cut in half nationally. Just about every state in the country saw a dramatic drop in crime like Florida did. This fact should create some skepticism toward claims that Florida’s crime drop is the result of sentencing policies unique to Florida. In fact, claims that Florida’s crime drop was a result of particular policy choices are likely false. As one study found, states that maintained high incarceration rates in the 1980s and 1990s had “little or no more success in suppressing crime . . . than states that kept imprisonment rates lower.”[5]

Many states that never adopted Florida’s stringent 85 percent rule experienced similar drops in crime. For example, Texas has parole, and its crime rate has been cut in half since 1995, while the crime rate in New York — another parole state — has fallen 60 percent. As the chart below shows, Alaska, Colorado, Maryland, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Hampshire, North Dakota, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wyoming all saw substantial crime drops over the same period as Florida, yet none follow Florida’s 85 percent rule.

Some of these states — Alaska, North Dakota, and Vermont, for example — had modest crime drops relative to Florida’s. Others, like Texas and Michigan, saw crime drop at about the same rate as Florida’s. Still others, such as New York and Massachusetts, had crime drops even larger than Florida’s. The claim that Florida’s experience is the result of Florida’s unique policy choices — in particular, the 85 percent rule — is difficult to square with the available data.

Third, the FSA report fails to note that crime in Florida started falling before Florida adopted the 85 percent rule in 1995. In fact, Florida’s crime rate peaked in 1988, and the state’s violent crime rate peaked in 1990. By the time Florida adopted the 85 percent rule, crime had already fallen 13 percent from its peak. The FSA report does not explain this significant drop in Florida’s crime rate prior to 1995.

Each of these reasons — the report’s post hoc reasoning, the fact that crime fell all over the country, including bigger drops in states that didn’t use the 85 percent rule, and the fact that crime in Florida started falling before it adopted the 85 percent rule — independently calls into question FSA’s conclusion of a causal connection between the crime drop and Florida’s 85 percent rule. Taken together, they show clearly that FSA’s claim linking the 85 percent rule to Florida’s crime drop remains unproven.

Florida’s “Incarceration Model” and the Crime Rate

Having failed to establish a causal connection between the 85 percent rule and Florida’s crime drop, the FSA report shifts its central claim, and argues that the crime drop is actually the result of both the 85 percent rule and what the report refers to as Florida’s “incarceration model.”

Unfortunately, the FSA report does not calculate how much of the crime drop can be attributed to the 85 percent rule, and how much to this incarceration model. The report does not attempt to find the marginal effect of either, nor is there any attempt to untangle the effect of the 85 percent rule from, e.g., the collective effects of Criminal Punishment Code, local sentencing practices, or mandatory minimum sentencing. The report does not entertain alternative hypotheses, including whether a larger police presence, more effective police practices, an increase in concealed weapons licenses, Florida’s economic success, better technology, or any other factor might have contributed to the crime drop. In fact, the report does not even define what “incarceration model” means.

A charitable reading might assume “incarceration model” refers to the substantial growth in Florida’s incarceration rate and prison population over the past several decades. In fact, evidence does suggest that, “an increase in [Florida’s] prison population had some effect” on crime.[6] However, some of the same research on which FSA relies for its report also found that the increase in Florida’s prison population was not the result of the 85 percent rule, but rather an increase in felony convictions that tracked Florida’s population growth.[7] This finding is consistent with the large body of research in support of the idea that the certainty of punishment is more important for crime deterrence than the severity of punishment.[8]

Much of the analysis in the FSA report linking Florida’s “incarceration model” to reduced crime relies on the work of economist Steven Levitt, whom the report calls “the most prominent scholar in this area of study.”[9] The report cites several of Levitt’s papers that show a connection between incarceration and lower crime, including a 1996 paper that concluded, “Increased prison populations appear to substantially reduce crime.”[10]

However, by 2012, Levitt recognized that U.S. incarceration rates had already reached negative returns. For example, in an interview with the New York Times, Levitt said:

[T]he millionth prisoner we lock up is a lot less dangerous to society than the first guy we lock up. In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration. Today, my guess is that the costs outweigh the benefits at the margins. I think we should be shrinking the prison population by at least one-third.[11]

Applying Levitt’s “one-third” suggestion to Florida would mean reducing our prison population by around 31,000 people, or roughly three times the number of nonviolent offenders who would be eligible to earn release at 65 percent time served under some proposed reforms.

That incarceration rates are subject to diminishing marginal utility, and can reach a level above which incarceration is itself criminogenic, is not a controversial claim.[12] In fact, even studies that once found a negative relationship between Florida’s prison population and its crime rate also cautioned that the finding, “does not necessarily mean the State of Florida should continue expanding the prison population,” in part because of the staggeringly high cost of incarceration relative to alternatives, but also because — as one study noted nearly a decade ago — “crime rates have been very low for some time now, and it may be that other factors that have helped sustain the crime drop may have taken over.”[13]

Indeed, even the FSA report provides evidence that Florida’s “incarceration model” might have outlived its utility when it notes that Florida’s incarceration rate and prison population have both dropped while crime has continued to decline, another state trend that tracks national trends.[14]

[1] Truth in Sentencing at 3.

[2] Other variables include population density and degree of urbanization; variations in composition of the population, particularly youth concentration; stability of the population with respect to residents’ mobility, commuting patterns, and transient factors; modes of transportation and highway system; economic conditions, including median income, poverty level, and job availability; cultural factors and educational, recreational, and religious characteristics; family conditions with respect to divorce and family cohesiveness; climate; effective strength of law enforcement agencies; administrative and investigative emphases of law enforcement; citizens’ attitudes toward crime; and crime reporting practices of the citizenry. See FBI Uniform Crime Report, “Variables Affecting Crime.” https://ucr.fbi.gov/hate-crime/2011/resources/variables-affecting-crime.

[3] Donovan White and Hector H. Sandoval, “Potential Drivers of the Florida Crime Decline,” Bureau of Economic and Business Research, 2017. https://www.bebr.ufl.edu/economics/website-article/potential-drivers-florida-crime-decline.

[4] Id.

[5] James Austin, Todd Clear, and Richard Rosenfeld, “Explaining the Past and Projecting Future Crime Rates.” Harry Frank Guggenheim Foundation, September 2020. https://hfg.org/past%20and%20future%20crime%20rates.pdf.

[6] See, e.g., William D. Bales and Alex R. Piquero, “The Crime Drop in Florida: An Examination of the Trends and Possible Causes,” The PEW Charitable Trusts and the John Jay College Center on Media, Crime and Justice, 2012. https://www.flsheriffs.org/uploads/FLCrimeDropStudy_Bales4_15_12.pdf.

[7] Bales, et.al., 2010.

[8] See, e.g., Robert Apel & Daniel S. Nagin, “General Deterrence: A Review of Recent Evidence,” Crime and Public Policy (James Q. Wilson & Joan Petersilia eds., 2012).

[9] Id. at 16.

[10] Levitt, S. D. (1996). The effect of prison population size on crime rates: Evidence from prison overcrowding litigation. The quarterly journal of economics, 111(2), 319–351.

[11] John Tierney, “For Lesser Crimes, Rethinking Life Behind Bars,” New York Times, December 11, 2012. Available: https://www.nytimes.com/2012/12/12/science/mandatory-prison-sentences-face-growing-skepticism.html.

[12] See, e.g., Johnson, R. and Raphael, S., “How much crime reduction does the marginal prisoner buy?” Journal of Law and Economics, vol. 55, pp. 275–310.

[13] Bales and Piquero, supra note 6, at 55–56.

[14] Truth in Sentencing at 6.