The Un-Making of Criminal Offenders

How to mitigate criminogenic circumstances and reduce recidivism.

Posted May 24, 2018

The failure of the American criminal justice system is worse than we thought.  Recidivism (reoffending) is a common measure of the performance of the criminal justice system. The U.S. Department of Justice just released new recidivism data that follow offenders nine years after release from state prison.  The new data show that the vast majority – nearly 85 percent – of offenders are rearrested within that nine year window of release.  Eighty percent are rearrested within six years.  In fact, it’s worse than that since the offenders included in the new recidivism data are the ones who are caught.  Approximately one-half of all crime is never reported to the police and the arrest rate for those that are reported is highly variable – about 20 percent of reported property crimes and 40 percent of violent crimes lead to an arrest

The new recidivism data simply underscore our inability to punish bad behavior out of offenders.  So, where do we go from here?  We start by raising the white flag, admitting it is not working, and charting a decidedly different path.

One of the monumental challenges facing the U.S. criminal justice system is that it has become the dumping ground for many disordered offenders – mentally ill, neurocognitively impaired, those with substance use disorders.  Over fifty percent of individuals in the justice system have a mental health disorder; eighty percent have a substance use disorder; between fifty and sixty percent have had at least one traumatic brain injury.

The justice system as currently configured cannot address these offenders’ disorders and impairments and there is no indication that we are going to stop using the justice system as the repository for those for whom we don’t know what else to do.

In my recent book From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice I and my collaborators recommended establishing independent panels of psychiatrists, neuroscientists, psychologists, addiction medicine specialists and others who can use evidence-based diagnostic protocols for assessing and diagnosing the primary disorders and impairments and co-morbidities offenders present with, as well as their risk of reoffending, determine eligibility for diversion, then develop treatment plans and oversee treatment.  It is important they these panels are independent of the prosecution and defense, that they make recommendations to prosecutors regarding diversion and intervention, and there be sufficient community-based treatment capacity for the significant amount of demand anticipated.

The goal, for appropriate individuals, is to minimize contact with traditional criminal prosecution, conviction and punishment (because such contact has been shown to increase recidivism) by diverting selected offenders to programs that can effectively manage offender risk, and provide aggressive case management and evidence-based treatment and intervention.

This obviously requires fundamental changes to how we currently do business in public health and criminal justice.  We have to seriously fund public health so that there is adequate capacity of appropriate, evidence-based care.  We also have to inject another set of actors into the criminal justice process (the expert panels) and we have to dramatically change how the key decision makers, especially prosecutors, think about crime and punishment.

The key goal of this proposal is to give the primary decision makers in the justice system (mainly prosecutors and judges, but defense lawyers as well) relevant information to allow them to make decisions that have a higher likelihood of reducing recidivism than simple punishment.

Why is all of this necessary?  The two primary answers are public safety and money.  Effectively addressing the variety of primary disorders and impairment of substantial numbers of offenders will reduce recidivism, in turn enhancing public safety.  Cost benefit analyses clearly show that treatment is more cost efficient then incarceration.  Moreover, every time someone reoffends, substantial costs are incurred (police, jail, prosecutor, court, pretrial services, public defenders, etc.).  Thus, every time we can interrupt the cycle of reoffending that characterizes so many offenders, we save considerable amounts of money.


Kelly, William R., Robert Pitman and William Streusand (2017). From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice.  Lanham, MD: Rowman & Littlefield,