#REFERENCES QUOTED IN “CRIME AND IMPRISONMENT AT SECOND INSTANCE IN BRAZIL”
#Crime and imprisonment at second instance in Brazil
Profile Views: 62
Our country has a retrograde legal culture that despises empirical analysis
The Supreme Court (STF) President, Minister Dias Toffoli, when casting the vote that changed again the changing jurisprudence of the highest court, said that it is not the prison after the second instance that solves problems of crime and impunity, or avoids committing crimes. However, this rhetorical argument, defended with strong emotion, is not supported by scientific studies that underlie the criminal policy of the vast majority of countries.
It should be reminded to Toffoli and the other STF ministers, who uncritically repeat arguments of well-paid criminal lawyers, that the hypothesis as to whether more severe punishment (imprisonment) contributes to the reduction of crime is empirically testable. . That is, such hypothesis can be considered valid or invalid from empirical analysis.
Cesare Beccaria and Jeremy Bentham, who laid the foundations of criminology in the 18th and 19th centuries, respectively, understood crime as the product of rational calculation decision. Offenders assess the likelihood of being convicted and punished, and when it is low they will engage in more criminal practice. Both argued that laws and penalties should discourage individuals from committing infractions, and that imprisonment has a preventive effect by inhibiting criminal behavior throughout society.
But it was Professor Gary Becker of the University of Chicago who, in 1968, designed contemporary criminal analysis, fostering the emergence of abundant literature that instructs public policy in Europe, the United States, and other countries. Becker established an internationally recognized mathematical model for assessing crime, a contribution that earned him no less than the 1992 Nobel Prize in Economics.
Becker's model uses variables on crime damage, costs of arrest and conviction of criminals, number of crimes and forms of punishment, among other factors, to investigate the best public policies to combat delinquency. Currently there is international consensus among scholars, supported by statistics and scientific methodology, that, keeping other variables constant, the increase in the probability of conviction and punishment, in general, has a reduction in the number of crimes.
Thus, to say that imprisonment after the decision in the second instance does not contribute to solving problems of criminality and impunity, as Dias Toffoli did, is equivalent to maintaining that chemotherapy does not help in the treatment of cancer. However, studies with empirical evidence have shown that chemotherapy is an effective treatment against the disease, just as arrest has been shown to be an effective solution against crime.
The outcome of the 7/11 Brazilian Supreme Court (STF) trial puts Brazil in an isolated position in the world, as study by Deputy Attorney General Luiza Frischeisen points out, as 193 of the 194 UN countries adopt the beginning of the execution of the prison sentence after a court decision. first or second degree.
Research by Steven Levitt of the University of Chicago shows that arrest impacts crime because of the deterrent effect on potential criminal agents. Levitt and Daniel Kessler tested the effects of legal changes with increased prison sentences for various crimes in California and concluded that they led to a decrease in illicit acts in later years. Siddhartha Bandyopadhyay's study analyzed the impact of convictions and arrests in England and Wales and found that prisons generally decrease crime.
Becker also explained that the likelihood of conviction and punishment is related to the criminal's income. Recognizing the economic power of some litigants, American legal literature deals scientifically with topics that are still true taboos among us.
For example, an article by John Goodman in the Journal of Legal Studies as early as 1978 argued that judges can be persuaded by the parties' financial efforts to defend their causes by investing in legal research, hiring talented lawyers, and better formulated argument. . Goodman presented a mathematical model in which the likelihood that a party will win a court case will depend on the amount of money each party spends to enjoy the best defense.
The author identified that law can evolve inefficiently for society when the interests of the party do not reflect the costs and aggregate social benefits that result from the legal norm that is being challenged. This occurs when the result is good for the party but bad for society.
Paul Rubin and Martin Bailey have argued that lawyers have a long-term interest.
Paul Rubin and Martin Bailey have argued that lawyers have a long-term interest in the resulting jurisprudence and will exert continual pressure on it to evolve in favor of legal arguments that benefit their clients as an organized interest group. The authors cite the case of the evolution of criminal jurisprudence that emphasizes procedural issues, ensuring the demand for attorney services. Such analysis helps in understanding the result of the STF's historical judgment, since one of the actions that led to the jurisprudential change was filed by OAB itself.
Therefore, it is to be expected that among the approximately 5,000 prisoners who may benefit from the Supreme Court decision, those who have the most financial resources to defend themselves before the judiciary will be released from prison faster, as has already been noted. Our country has a backward-looking legal culture that scorns empirical analysis, although it explains the certainty of impunity for some and the legal insecurity in which most of society lives.
Our country has a retrograde legal culture that despises empirical analysis
* DOCTOR IN LAW AT USP, POST-DOCTORATED AT TEXAS UNIVERSITY, TEACHER AT TEXAS UNIVERSITIES, CORNELL AND VANDERBILT, DIRECTOR OF YALE LAW SCHOOL BUSINESS LAW CENTER AND STANFORD AND YALE RESEARCHER
==//==
SEE ALSO:
SOURCE/LINK: https://mpra.ub.uni-muenchen.de/81639/1/MPRA_paper_81639.pdf
An Economic Approach on Imprisonment of Second-Instance Convicts: The Case of Brazil
Economic Analysis of Law Review 8 (1): 277–90
14 Pages Posted: 4 Aug 2017
Marcelo Justus
Universidade Estadual de Campinas (UNICAMP) - Instituto de Economia
Thomas Conti
Insper
Date Written: August 1, 2017
Abstract
On October 5, 2016, the Brazilian Federal Supreme Court decided that imprisonment of convicts in second-instance before the res judicata does not affect article 283 of the Penal Code. The objective of this study is to analyze, without judging the constitutionality of the novel juridical act, the hypothesis that “the possibility of imprisonment of convicts in second instance was a correct decision to reduce crime and its social cost”. This hypothesis is not rejected pursuant to the economic theory of crime.
Keywords: Deterrence effect, Law and economics, Social cost
JEL Classification: K4, K41, K42
Suggested Citation:
Justus, Marcelo and Conti, Thomas, An Economic Approach on Imprisonment of Second-Instance Convicts: The Case of Brazil (August 1, 2017). Economic Analysis of Law Review 8 (1): 277–90. Available at SSRN: https://ssrn.com/abstract=3012503
==//==
SUBSCRIBE
LOG IN
SEARCH
Journal of Political Economy
Volume 76, Number 2 | Mar. - Apr., 1968
• SUBSCRIBE/RENEW
• BROWSE ISSUES
• FORTHCOMING
• CONTRIBUTORS
• ABOUT
Previous Article
Next Article
Crime and Punishment: An Economic Approach
Gary S. Becker
• First Page
• Cited by
• PDF
•
TOOLS
Export Citation
Track Citation
Email A Friend
Add To Favorites
• Permissions
Reprints
SHARE
Citations
5413
News (2)
Blogs (6)
Policy documents (11)
Twitter (12)
Wikipedia (5)
Mendeley (6)
CiteULike (3)
ARTICLE CITATION
Gary S. Becker, "Crime and Punishment: An Economic Approach," Journal of Political Economy 76, no. 2 (Mar. - Apr., 1968): 169-217.
https://doi.org/10.1086/259394
MOST READ
Of all published articles, the following were the most read within the past 12 months
• Behavioral Economics
Thaler
• Crime and Punishment: An Economic Approach
Becker
• The Geography of Development
Desmet et al.
• The Pricing of Options and Corporate Liabilities
Black et al.
• Law and Finance
La Porta et al.
• 1427 East 60th Street, Chicago, IL 60637
• The University of Chicago Press Books
• Chicago Distribution Center
• The University of Chicago
• Contact us
• Media and advertising requests
• Terms and Conditions
• Privacy Notice
• Statement of Publication Ethics
==//==
An Economic Theory of the Evolution of Common Law
John C. Goodman
• First Page
• Cited by
• PDF
•
Your Access Options
Personal Access
If you have access to this journal as a benefit of membership in the sponsoring organization, log in through the member link in the right column.
If you have an individual subscription, or if you have purchased this article separately, click on the link below.
Sign in
Purchase
Purchase this article: $10.00
Other options
If your institution has an electronic subscription to this journal, please log in to your institution’s library website or contact your librarian for journal access. Some institutions may provide Single Sign-On access here.
Recommend this journal to your librarian for subscription.
Subscribe to this journal by choosing Subscribe/Renew, at the top left of this page, below the journal cover.
TOOLS
Export Citation
Track Citation
Email A Friend
Add To Favorites
• Permissions
Reprints
SHARE
ARTICLE CITATION
John C. Goodman, "An Economic Theory of the Evolution of Common Law," The Journal of Legal Studies 7, no. 2 (Jun., 1978): 393-406.
https://doi.org/10.1086/467600
MOST READ
Of all published articles, the following were the most read within the past 12 months
• Why Is Cost‐Benefit Analysis so Controversial?
Frank
• The Discipline of Cost‐Benefit Analysis
Sen
• Cost‐Benefit Analysis: Definition, Justification, and Comment on Conference Papers
Posner
• Mandatory Minimums and the Sentencing of Federal Drug Crimes
Bjerk
• Adam Smith, Prophet of Law and Economics
Mahoney
==//==
We use cookies to enhance your experience on our website. By clicking 'continue' or by continuing to use our website, you are agreeing to our use of cookies. You can change your cookie settings at any time.
• Continue
• Find out more
Skip to Main Content
• Sign In
• Register
• Issues
• More Content
• Submit
• Purchase
• Alerts
• About
search filter
search input
Advanced Search
Volume 59
Issue 4
July 2019
Article Contents
• Abstract
• Introduction
• Data
• Empirical model
• Results
• Robustness checks
• Discussion
• Limitations
• Conclusion
• Funding
• Acknowledgements
• References
• Footnotes
• Appendix 1
• Appendix 2
• Appendix 3
• Appendix 4
• Appendix 5
• Appendix 6
• Appendix 7
• Appendix 8
• Appendix 9
• Author notes
• < Previous
• Next >
• PDF
• Split View
• Cite
• Permissions Icon Permissions
• Share
Alternatives to Custody: Evidence from Police Force Areas in England and Wales
Juste Abramovaite, Siddhartha Bandyopadhyay, Samrat Bhattacharya, Nick Cowen
Author Notes
The British Journal of Criminology, Volume 59, Issue 4, July 2019, Pages 800–822, https://doi.org/10.1093/bjc/azy056
Published:
07 December 2018
• PDF
• Split View
• Cite
• Permissions Icon Permissions
• Share
Abstract
England and Wales have some of the highest incarceration rates in the developed world. Recent policy reforms have focused on developing alternatives to custody that offer credible protection for the public, and justice for victims of crime. This article uses unique detailed panel-level data acquired from the Ministry of Justice for all Police Force Areas from 2002 to 2013 in England and Wales to analyse the effects of custodial and non-custodial sentences on recorded crime. Our results suggest that non-custodial sentences can be an effective alternative to custody at reducing property crime but their effect is less consistent for violent crime. This suggests that non-custodial sentences are credible, cost-effective substitutes to incarceration.
Issue Section:
Articles
Introduction
World-wide prison populations have increased substantially since the mid-1990s (Walmsley 2012). In England and Wales, the prison population increased from around 17,400 in 1900 to over 85,300 in 2016, and in March 2017 the total prison population was just over 85,500 (Allen and Watson 2017). In 1901, there were 86 prisoners per 100,000 head of population that increased to 182 per 100,000 head of population by 2016. Incarceration is an expensive and socially divisive response to crime. Nevertheless its widespread use is defended not only on grounds that it is a fitting punishment but also in the belief that it reduces crime. However, its effectiveness is contested (Jolliffe and Hedderman 2015). Further, given its costs,2 even those who find custody a fitting response to crime may need to re-think their views. Indeed, finding effective alternatives to custody is a key motivation for policymakers and researchers. The search for effective alternatives to custody has become even more urgent following the recent recession and the demand for governments to make cuts in public services, including the criminal justice system (Neilson 2010; Bandyopadhyay 2013). Although community sentences have existed in some form since 1907 (Solomon and Silvestri 2008), in recent decades criminal justice legislation has expanded the range of formal requirements available to courts when imposing them. Conditions now include regular supervision, electronic tagging, curfews, unpaid work and participation in drug rehabilitation programmes. Consequently, courts in England and Wales now have the power to sentence offenders to a range of non-custodial alternatives with varying levels of prospective deterrence, punishment severity, surveillance and associated rehabilitative support. This article offers an empirical analysis of how effective these alternative sentences are at reducing crime compared to custody.
The impact of incarceration on crime reduction is theoretically ambiguous as there are many counter-balancing effects through which prison can affect crime rates (Friehe and Miceli 2017). Theorized forms of crime reduction include incapacitation of individual offenders (to prevent further offences while in prison), specific deterrence (punishing an offender in the hope of discouraging their individual recidivism), and general deterrence (discouraging a wider population of potential offenders from committing crime through the prospect and expectation of punishment) (Becker 1968; Levitt and Kessler 1999). However, there are also mechanisms through which prison is theorized to have criminogenic effects (Engelen et al. 2016). Prisons can prevent offenders from acquiring useful skills in legitimate labour markets; label offenders formally as deviant, marking them as unsuitable for reintegration into society; have psychologically destructive effects that prevents prisoners from returning to normal life when released; reduce access to and even destroy familial relationships and other sources of social support and integration; and generate a pro-crime environment where prisoner peer groups, and even prison officers, reinforce deviant identities and behaviours (Gendreau et al. 1999; Cid 2009; Cullen et al. 2011).
Our contribution is to apply a unique panel of Police Force Area (PFA) level data in England and Wales in order to understand the impact of alternative sentencing policies such as community sentences on crime rates. This data set was requested through a Freedom of Information request. It details how many different sentences have been issued for all crime types each year from 2002 to 2013. This data set allows us to distinguish between the number of prison sentences (custody) and non-custodial sentences (community sentences, conditional discharge, fines and suspended sentences) imposed by local courts. We exploit the significant sentencing discretion traditionally granted to local courts (Brownlee and Joanes 1993; Tombs and Jagger 2006, p.806; Pina-Sánchez et al. 2017), and plausibly maintained even after the introduction of compulsory sentencing guidelines (Roberts 2011).3 This allows for a more detailed examination of criminal justice practice on PFA level crime than has yet been achieved in the United Kingdom. We analyse the effect of alternative sentencing methods on crime rates in PFAs by using sentence-type and offence-type conviction rates derived from data on total number of sentences across all PFAs each year. Our data include violence against the person, sex offences, robbery and property crime, allowing us to explore the effects of alternative sentencing on each crime category separately. Our model of using variations in sentencing data across PFAs, rather than prison population, means that we can avoid some of the well-established problems with using prison population data (Spelman 2008). An important caveat is that it is not possible to disaggregate all the mechanisms through which criminal justice might affect crime rates. As Durlauf and Nagin (2010) note of panel data approaches generally, ‘these studies are actually measuring a combination of deterrent and incapacitation effects’.
Previous research
Establishing and explaining a causal connection between sentencing policies, offender behaviour and community experience of crime is a key challenge in the study of criminal justice. An array of randomized controlled trials (RCTs) have examined the effects of short periods of custody on offenders compared to alternative sentences (Killias et al. 2000, 2010; Killias and Villetaz 2008). The results are not conclusive but suggest that prison for low-level offenders might have a small criminogenic effect. However, the nature of criminal justice policy implies that randomization can rarely be applied as part of a research design and only in narrow circumstances. Matching studies, therefore, allow for a much wider comparison of offenders. Smith et al. (2002) systematically review studies comparing the effects of community sentences with custodial sentences. A small effect suggesting that prison sentences might be associated with increased recidivism was found. Further work tends to confirm this result that suspended or community sentences (including the use of electronic tagging) are associated with lower levels of offending than prison sentences (Nieuwbeerta et al. 2009; Cid 2009; Wermink et al. 2010; Bell 2011; Andersen and Andersen 2014; Jolliffe and Hedderman 2015; Andersen 2015).
Matching approaches have become successively more useful for estimating the impact of differential sentencing on individual offenders, including long term impacts on criminal career trajectories. However, these studies have limitations. First, they rely on matching similar offenders who are given different sentences. The resulting samples, though much more extensive than the available study population in RCTs, may still not represent perfectly comparable offenders. Second, they may also not be typical of the offender population. It is difficult to extrapolate these individual-level effects to impacts on local communities that a criminal justice system is serving.
Drago et al. (2009) (cf. Drago et al. 2011; Drago and Galbiati 2012) offer an ingenious effort to deal with some of these challenges. They exploit a mass pardon in the Italian prison system that introduced a number of exogenous changes to a cohort of prisoners. They found that prisoners pardoned early, and so eligible for a longer sentence if reconvicted were significantly less likely to re-offend. They conclude that the prospect of prison deterred subsequent crime. The potential weakness of this analysis is that the prospect of a longer sentence is reverse correlated with the length of the sentence served so far (Durlauf and Nagin 2010). This means that it is impossible to say from this study whether the lower level of observed offending is due to less prison experienced already or the prospect of more prison in the future.
Not all of the theorized effects of sentencing involve only the effect on individual offenders. The use of district-level data, and especially panel data analyses, are important additions to our understanding of how the criminal justice system influences a community’s experience of crime. Whereas studies of re-offending statistics can only capture the effect of criminal justice interventions on subsequent re-offending by individuals, panel data, in principle, can estimate the number of crimes prevented through incapacitation and general deterrence in a population of potential offenders. In the United States, several panel studies have been used to explore the effects of incarceration on crime rates (Durlauf and Nagin 2010). The results have varied, with only some studies suggesting that prison population growth had a small deterrent effect. Vieraitis et al. (2007) combined panel data of prison growth and prisoner releases. They found that prison growth was associated with lower crime but that releasing prisoners was associated with higher crime. They attributed this to the criminogenic effects of incarceration. Spelman (2013) attempts to disentangle the co-dependence of crime and prison population, by finding instruments for crime that predict changes in prison population, before deriving the effects of prison on crime. His results suggest that increased use of prison is crime-reductive in the United States.
Outside of the United States, recent panel data studies have associated higher conviction rates, higher detection rates and larger police forces, as well as various social factors including wage inequality, educational attainment, poverty and unemployment, with variations in crime rates (Witt et al. 1999; Carmichael and Ward 2001; Machin and Meghir 2004; Spengler 2006; Sabates 2007; Andrews 2011; Saridakis and Spengler 2012; Han et al. 2013). However, few non-US analyses have been able to explore variation in sentencing subsequent to conviction. An important exception to this is Bell et al. (2014), which exploits variation in sentence severity following the 2011 riots in London to identify a deterrent effect of harsher sentencing. Our approach, therefore, has the unique advantage of observing sentencing variation in hitherto unexamined detail.
Data
We obtained a unique data set from the Ministry of Justice through a Freedom of Information request detailing how many different sentences have been issued for those crime types in each year. In the United Kingdom sentencing is classified into custodial and non-custodial. Custodial sentences include immediate custodial sentences (both determinate and indeterminate length) and suspended sentences. Non-custodial sentences include fines, community service, conditional discharge and absolute discharge. Our data include the total number of sentences issued to adult and juvenile offenders in each PFA every year for each sentence type as listed earlier. We use these data to test whether different sentencing (with a lag) has a different effect on crime rates. As we have data on sentencing for adults and juveniles separately, we analyse the effects of sentencing for both age groups jointly and then separately. Total crime committed by the juvenile offenders is lower than adult offenders. However, young people are over-represented in the criminal justice system.4 Therefore, it is useful to analyse the effects of sentencing juvenile offenders on crime rates separately from adult offenders.
Our data show us at each PFA5 in England and Wales (from 2002 to 2013) how many crimes have been recorded in four different crime categories—violence against the person, sex offences, robberies and property crimes. These four crime categories account for around 90 per cent of total crimes recorded across England and Wales between 2002 and 2013 (Appendix 1). The majority of offences were categorized under the property crime category. Table A2 in the Appendix 2 shows the composition of the property crime. The main categories are criminal damage, all other theft offences, vehicle thefts and burglary offences. For violent crimes, violence against the person accounts for the majority of the total violent offences recorded (Appendix 3).
Our dependent variable is crime rate per 1,000 people for each PFA for each time period. Our analysis includes violence against the person, sex offences, robbery and property crimes. As we are interested in how sentencing works and how alternatives to custody affect crime rate, we derive ‘sentence-conviction rate’ calculated by taking the total number of criminals sentenced to, e.g., custody in the particular year in each PFA and dividing that number by the total number of crimes registered in each PFA that year and multiplying it by 100 to derive a rate. ‘Sentence-conviction rate’ can be represented as follows:
“Sentence−conviction rate”= Total Number Sentenced per Sentence Typecrime type, yearTotal NumberofCrimescrime type, year*100”
We do this for all crime types listed earlier. Our derived conviction rate for each sentencing type (and for each offence type) is correlated with detection rate as only the detected crimes get sentences issued to the offenders. Conviction rate is sometimes used as a proxy for detection rate (Machin and Meghir 2004). Moreover, this type of conviction rate allows us to look into each sentencing type separately. Although we have sentencing data separated for adult and juvenile offenders and the effect of that can be captured separately, recorded crime rate has a victim but cannot be matched with an offender (in a large percentage of cases we do not even know who the offender is), and thus we cannot separate our dependent variable to crime rate for adult offenders only or for juvenile offenders only. Therefore, we run two empirical models—one with total sentence-conviction rate for all of the offenders and another one where sentence-conviction rate is separated for adult and juvenile offenders. Descriptive statistics for all four crime types averaged for 2002–2013 period are reported in Table 1.
Table 1
Descriptive statistics
Dependant variables
Mean
Std. Dev.
Violence against the person (VATP)—rate per 1,000 people
12.18
3.08
Sex offences—rate per 1,000 people
0.96
0.21
Robbery—rate per 1,000 people
0.91
0.94
Property crime—rate per 1,000 people
58.27
19.24
Note: All crime rates are defined as the number of offences per 1,000 population; there is total 504 PFA—year observations in the sample (42 PFA by 12 years)
Open in new tab
We include data on unemployment and proportion of youth population to control for socio-economic factors that could contribute to changes in crime rates. Also, we include a total of police officers’ salaries to represent the strength of police presence and might affect crime rates. Unemployment rate is defined as a proportion of unemployment benefits claimants to the total number of people in the workforce. We obtained unemployment figures from Labour Force Survey and Annual Population Survey. Unemployment data are available yearly at each PFA level. Police officers’ salaries are the totals (in £’000) of how much each PFA spent yearly on police officers’ salaries. The variable youth population is defined as a proportion of young people aged 15–24 years to the entire population. The data source is mid-year estimated population by age and gender from National Statistics. The number of people aged 15–24 years has been calculated by aggregating each year group at local authority level and then aggregating into PFAs according to their geographic boundaries. Descriptive statistics for conviction rates and socio-economic variables are reported in Appendix 4.
Empirical model
The econometric specification of our main model is as follows:
β8Youthi,t+σi+µt+εi,t
where i represents the cross-section unit of observation (in this case each PFA), t represents time, σi is the unknown intercept for each PFA, µt represents year fixed effects to account for PFA specific year changes, and εi,t is the error term. The explanatory variables, CommunitySent stands for the conviction rate for all offenders who get a community sentence, Custody is the conviction rate for all offenders who are issued a custodial sentence, ConditionalDischarge is the conviction rate for all offenders who received conditional discharge as a sentence for the crime they have committed, Fine is the conviction rate for the offenders who were fined, SuspendedSentence is the conviction rate for all offenders who received suspended sentence. Also, PoliceOfficersSalaries stands for total cost of police salaries, Unempl for unemployment rate and Youth for the ratio of people aged 15–24 in the population.
We use PFA-level fixed effects to eliminate unobserved area-specific time-invariant effects and thus control for the average differences across PFAs for any observable or unobservable predictors, such as differences in size, characteristics etc. In that way, the fixed-effect coefficients control for all the across-PFA variation and we are left with the within-PFA variation, which helps us greatly reduce the problem of omitted variable bias. We also include fixed time effects in our model as the year dummies pick up any variation in the outcome that happen over time and that is not attributed to our other explanatory variables.
For conviction rates we use lagged variables in order to minimize possible issues with the endogeneity that arises due to possible reverse causality between our dependent variable—crime rate—and conviction rate as both of them can have an effect on each other. Including a time lag on conviction rate minimizes the effect as crime rate this year cannot affect the conviction rate last year.
Alongside our main model, we also test the relationship between crime rates and conviction rates for adult and juvenile offenders separately, keeping the rest of the model unchanged. However, since sentences issued to the offenders for violent crimes and property crime vary and there are more non-custodial sentences used for both adult and juvenile offenders for property crime offences, the econometric specification differs slightly between violent and property crimes as we include more non-custodial sentences for juvenile offenders in the latter. Both of these specifications can be found in Appendix 5.
Results
The empirical results of our main model are presented in Table 2 later. They are presented in elasticity form that was derived from level–level coefficients (Appendix 6) using sample means (with confidence interval reported at 95% level of significance) in order to make the interpretation easier.
Table 2
Fixed-effects regression models predicting change in crime rates, in elasticity form, 2002–2013
VATP
Sex offences
Robbery
Property crime
Conviction rate for community sentence (t–1)
–0.04
(–0.11; 0.03)
–0.03
(–0.09; 0.03)
–0.1***
(–0.15; –0.04)
–0.2***
(–0.3; –0.12)
Conviction rate for custody (t–1)
–0.2***
(–0.31; –0.1)
–0.12***
(–0.18; –0.06)
0.05
(–0.04; 0.13)
–0.15**
(–0.26; –0.03)
Conviction rate for conditional discharge (t–1)
–0.01
(–0.05; –0.03)
–0.02**
(–0.03; –0.001)
–0.001
(–0.003; 0.005)
0.04
(–0.02; 0.11)
Conviction rate for fine (t–1)
0.01
(–0.02; 0.04)
0.0004
(–0.001; 0.02)
0.0003
(–0.001; 0.001)
0.06**
(0.001; 0.12)
Conviction rate for suspended sentence (t–1)
–0.03
(–0.07; 0.01)
–0.02
(–0.04; 0.01)
0.03
(–0.02; 0.06)
0.00008
(–0.02; 0.07)
Police officers’ salaries
0.0008
(–0.02; 0.04)
0.03
(–0.03; 0.05)
0.01
(–0.06; 0.09)
0.0007
(–0.05; 0.05)
Unemployment
–0.12**
(–0.23; –0.02)
–0.06
(–0.19; 0.06)
–0.39*
(–0.82; 0.07)
–0.14***
(–0.26; –0.05)
Youth aged 15–24
–0.23
(–0.79; 0.32)
–0.27
(–0.93; 0.4)
1.4**
(0.15; 2.62)
0.41**
(0.002; 0.85)
Fixed time effects
Yes
Yes
Yes
Yes
Number of observations
462
462
462
462
R2 (within)
0.71
0.4
0.51
0.9
Note: dependant variable is the crime rate per 1,000 people, CI at 95% reported in parenthesis. Coefficients are significant at the 10%, 5% and 1% level and are marked *, **, ***, respectively. Results are converted to elasticity form using sample means from the level–level results reported in the Appendix 6. VATP = violence against the person.
Open in new tab
For violence against the person offences the conviction rate for community sentence has a negative but insignificant effect of 0.04 per cent. However, the conviction rate for the custody has a negative and significant coefficient. A 1 per cent increase in the conviction rate for the custody would reduce crime rate by 0.2 per cent. Coefficients of the conviction rates for conditional discharge and suspended sentence are both negative but insignificant, and the coefficient of the conviction rate for fines is positive but insignificant.
For sex offences, the conviction rate for community sentence is negative but insignificant as was the case for violence against the person. However, custody has negative and significant effect on sexual offences rate, suggesting that a 1 per cent increase in the conviction rate for custody would reduce crime rate by 0.12 per cent. This is similar to our finding for violence against the person. The effect of conditional discharge is different as for sexual offences the effect is negative and significant. A 1 per cent increase in the conviction rate for conditional discharge would reduce crime rate by 0.02 per cent. Conviction rates for fine and suspended sentence are positive and negative, respectively, but both are insignificant.
For robbery offences, the impact of more convictions leading to a community sentence is negative and significant. A 1 per cent increase in the conviction rate for community sentence reduces crime rate by 0.1 per cent. The conviction rate for the custody is positive and insignificant and that is the opposite effect that we found for the violence against the person and sexual offences. This suggests that sentencing types can have different effects on different crime types. For example, if community sentence is not an effective way to combat one crime type it does not mean that it cannot be effective for a different offence category. Other conviction rates for sentencing are insignificant.
For property offences, which is the only economic crime type in our analysis, both conviction rates for the community sentence and for the custody are significant and negative. A 1 per cent increase in the conviction rate for the community sentence would reduce crime rate by 0.2 per cent whereas a 1 per cent increase in the conviction rate for the custody would reduce it by 0.15 per cent. This suggests that alternatives to custody can sometimes be more effective than incarceration. Conviction rates for the conditional discharge and suspended sentence are both insignificant. However, conviction rate for fines is positive and significant. A 1 per cent increase in the conviction rate for the fine would increase property crime rate by 0.06 per cent. Because it is an economically motivated crime, it is possible that paying fines reduces the offender’s income. Therefore, more crime could be encouraged thereafter in order to compensate for the financial losses fines have imposed.
Other explanatory variables—unemployment, police officers’ salaries and proportion of youth in the population—were also included in our analysis. For violence against the person offences only unemployment has a significant effect of 0.12 per cent reduction if increased by 1 per cent. For sex offences all of the variables are insignificant. For robbery offences unemployment has a negative and significant coefficient, a 1 per cent increase in unemployment reducing crime rate by 0.39 per cent. Also, the youth variable is positive and significant. A 1 per cent increase in youth population would increase robbery rate by 1.4 per cent. This is different from violence against the person and sexual offences. This may reflect the different economic motivations associated with robbery compared to other forms of violence. For property crime, unemployment has a negative and significant co-efficient, a 1 per cent increase in unemployment would reduce crime by 0.14 per cent. The youth variable is positive and significant, and it suggests that a 1 per cent increase in youth population would increase the property crime rate by 0.41 per cent.
Overall, our results suggest that alternatives to custody can be as effective in reducing crime rates as incarceration, for certain crime types. Given that the drivers of property and violent crime may be different this variation should not be a priori surprising, the literature does not find consistent impacts of law enforcement and socio-economic factors across crime types and as we have explained the net effect of custody as well as non-custodial alternatives comprise of effects that act in different directions (see the Discussion section).
Specifically, we find that alternatives to custody are effective for both property crime and robbery. It should be noted that although violence against the person, sexual offences and robbery are all classified as violent crimes, robbery in fact does not always contain a violent action by definition.6 Therefore, robbery can have an economic motive similar to property crime. We can see from our findings that community sentences have a larger and more significant impact on those two offence types. As discussed earlier, custodial sentences can affect offenders’ future employment, and therefore, income opportunities that might increase further economic motives for committing crimes in the future. It has also been found that robbery is often a group crime (van Mastrigt and Farrington 2009) and prison may therefore increase access to criminal networks increasing future offending opportunities. However, this is not the case for violence against the person and sexual offences where motives are not rooted in economic incentives nor is access to criminal networks as important. This can explain in part why we find that violent and sexual offences are more affected by custodial sentences (perhaps mainly through an incapacitation effect or through more intense treatment programmes in prison). Robbery and property crime can be managed at least as effectively by community sentences, though fines can be counterproductive as it increases the economic motivation to commit crime for people at the margin. The ineffectiveness of community sentences for sexual offending may also reflect the inadequacy of community programmes for sex offenders during our period of analysis.
Table 3 reports our findings about the relationship between crime rates and conviction rates for adult and juvenile offenders separately. As with the main results table, these results are presented in the elasticity form, which was derived from level–level coefficients (Appendix 7) using sample means in order to make the interpretation easier.
Table 3
Fixed-effects regression models predicting change in crime rates, in elasticity form, 2002–2013, broken by adult and juvenile offenders
VATP
Sex offences
Robbery
Property crime
Adult conviction rate for community sentence (t–1)
0.02
(–0.05; 0.09)
–0.02
(–0.06; 0.02)
–0.02*
(–0.05; 0.002)
–0.16***
(–0.27; –0.06)
Adult conviction rate for custody (t–1)
–0.16***
(–0.26; –0.06)
–0.12***
(–0.17; –0.06)
0.06*
(–0.01; 0.11)
–0.12**
(–0.24; –0.005)
Adult conviction rate for conditional discharge (t–1)
–0.05**
(–0.09; –0.01)
–0.01**
(–0.03; –0.0003)
0.0015
(–0.001; 0.004)
0.03
(–0.03; 0.09)
Adult conviction rate for fine (t–1)
–0.03*
(–0.06; 0.01)
0.005
(–0.01; 0.02)
0.0002
(–0.01; 0.001)
0.06*
(0.002; 0.12)
Adult conviction rate for suspended sentence (t–1)
–0.09***
(–0.13; –0.05)
–0.01
(–0.04; 0.01)
0.02
(–0.02; 0.06)
0.02
(–0.02; 0.07)
Juvenile conviction rate for community sentence (t–1)
–0.003
(–0.06; 0.04)
–0.02
(–0.04; 0.01)
–0.06**
(–0.12; –0.03)
0.009
(–0.09; 0.07)
Juvenile conviction rate for custody (t–1)
–0.03**
(–0.06; 0.002)
0.01
(–0.02; 0.04)
–0.02
(–0.06; 0.02)
–0.02
(–0.07; 0.02)
Juvenile conviction rate for conditional discharge (t–1)
–0.005
(–0.04; 0.04)
Juvenile conviction rate for fine (t–1)
–0.02***
(–0.04; –0.006)
Police officers’ salaries
–0.005
(–0.02; 0.04)
0.02
(0.03; 0.05)
0.02
(–0.06; 0.09)
0.01
(–0.05; 0.05)
Unemployment
–0.12**
(–0.23; –0.02)
–0.08
(–0.19; 0.03)
–0.39*
(–0.82; 0.07)
–0.14***
(–0.25; –0.05)
Youth (aged 15–24)
–0.2
(–0.79; 0.39)
–0.27
(–0.93; 0.4)
1.26**
(0.04; 2.62)
0.34*
(–0.002; 0.7)
Fixed time effects
Yes
Yes
Yes
Yes
Number of observations
462
462
462
462
R2 (within)
0.74
0.4
0.51
0.9
Note: dependant variable is the crime rate per 1,000 people, CI at 95% reported in parenthesis. Coefficients are significant at the 10%, 5% and 1% level and are marked *, **, ***, respectively. Results are converted to elasticity form using sample means from the level–level results reported in the Appendix 7. VATP = violence against the person.
Open in new tab
The results for adult and juvenile offenders show that community sentences are more effective on adult than on juvenile offenders when it comes to addressing property crime. In our main specification, the effect was negative and significant for robbery and property crimes. However, while holding for the adult offenders for both crime types, the results lose significance for robbery for juvenile offenders. For fines it has exactly the opposite effect on property crime, suggesting the juvenile’s parent or guardian paying the fine may be deterring the juvenile from further criminality. Results also differ when it comes to custody. In our main specification, custody showed a negative effect on violence, sexual offences and property crime. The effects for these crimes are the same for adult offenders. But for juvenile offenders only custody for violence against the person has any significant impact, and the effect on sex offences and property crime becomes insignificant. This may reflect different motivations for adults and juveniles as also the fact that juveniles make up a smaller part of the sample of offenders and may have less of an impact on overall crime.
On the other hand, the conviction rate for custody for adult offenders now has a positive and significant effect on robbery offences showing that a 1 per cent increase in the conviction rate for custody would increase robbery rate by 0.06 per cent. Once offenders are separated by adults and juveniles the alternatives to custody show more impact on the violent crimes. In the main specification, only custody was significant. For adult offenders taken separately, however, the conviction rates of the conditional discharge, fines and suspended sentence became negative and significant showing that a 1 per cent increase of those conviction rates would lower the crime rate by 0.05 per cent, 0.03 per cent and 0.09 per cent, respectively. Overall, these results show, like our main model, that alternatives to custody can work effectively to reduce crime. In addition, adult and juvenile offenders react differently to changes in sentencing. Although none of the results became significant for juvenile offenders from what was already significant in the main specification, when considering adult offenders alone, more types of alternatives to custody sentencing were found to be significant for reducing crime rates.
Robustness checks
Impact of financial crisis on the crime–sentencing relationship
For robustness, we check whether our model coefficients are stable when we consider the possible implication of the financial crisis in 2008–2009 given its adverse impact on unemployment and basic earning (Campos et al 2010). Further, criminal justice agencies faced significant budget cuts and the Coalition government’s 2010 spending review called for police budgets to be reduced by 20 per cent (Millie and Bullock 2012). Thus, rising unemployment, falling incomes and lower police budgets might have well-affected crime rates.
In order to test if our model is stable we include a dummy variable for post-recession years (2007<) and interactions of all explanatory variables with that dummy with the rest as before.
The recession dummy is set to be equal to 0 for years before 2008 and 1 thereafter, with the dummy variable representing a level shift change in crime, e.g., a positive coefficient would indicate a level increase in crime in post-recession years.
Appendix 8 contains detailed results of the empirical models tested earlier. The recession dummy itself is positive and significant for all crime categories, suggesting a level shift as a result of the financial crisis. Most interaction dummies for various sentencing types are not significant suggesting that marginal impact of various sentencing types does not vary across different phases of the business cycle. The signs and size of the main coefficients when compared to our main models for violent and property crimes do not change much.
Lagged specification
We changed the contemporaneous socio-economic variables in the main model to the one period lagged values of these variables. This specification addresses the potential issue of these variables affecting crime rate with a lag. The results are similar to the main results reported earlier (see Appendix 9 for detailed results).
Discussion
Our results suggest that although custody is an effective way of reducing crime for most crime types, it is not the only way to do so. In fact, custody can sometimes have a detrimental effect on crime. For example, robbery has a positive and significant relationship with the adult conviction rate for custody. This suggests that the criminogenic effects for adult offenders in custody for robbery might be stronger than for violence against the person, sex offences and property crime where custody had a negative impact on all the three the crime rates. Alternative sentences such as community sentence and conditional discharge also reduced crime rates for all three violent crimes except fines for adult offenders, suggesting that crime can be reduced by routes other than prison. In order to illustrate how a 1 per cent increase in the conviction rate affects the total number of offences, we have calculated the following for the adult offenders based on recorded crime in the United Kingdom in 2014. Our calculations also report upper and lower bounds of the estimated numbers (based on the estimated confidence intervals at 95% level of significance) (Table 4).
Table 4
Number of offences of violent crimes could be changed by changing the type of sentencing issued by 1%
Offence type
Violence against the person
Robbery
Sexual offences
Total number of offences recorded by the police (by adult offenders)
720,833
48,585
78,609
Estimated change in a number of offences after 1% increase in custody7
–1,153
[–432, –1874]
+29
[26, 32]
–94
[–141, –47]
Estimated change in a number of offences after 1% increase in community sentence
–10
[–24, 4]
Estimated change in a number of offences after 1% increase in conditional discharge
–360
[–648, –72]
–8
[–16, 0]
Estimated change in a number of offences after 1% increase in suspended sentence
–649
[–937, –361]
Open in new tab
We can see, for Violence Against the Person, more than 1,000 offences would be prevented if there was a 1 per cent increase in the conviction rate for custody (for adult offenders). However, almost the same number of offences could be prevented if there was 1 per cent increase in conditional discharges and 1 per cent increase in suspended sentences. For robbery, no such impact from additional sentencing is found as we discussed. 98 per cent of sexual offence convictions result from crimes committed by adult offenders. Increases in both custody and conditional discharges prevent further offences. However, a 1 per cent increase in the conviction rate for custody for adult offenders prevents over six times more offences than 1 per cent increase in the conviction rate for conditional discharge.
Similarly, Table 5 illustrates estimated effects of sentencing 1 per cent more adult offenders to custody and community sentence in terms of prevented offences for property crime.
Table 5
Number of offences of property crimes could be changed by changing the type of sentencing issued by 1%
Property crime
Custody
Community sentence
Estimated change in a number of offences (total offences 2,244,167)7
–2,693
[–4937, –449]
–3,590
[–5610, –1570]
Note: Estimated impact of sentencing 1% more offenders to each sentence type on number of recorded crimes in 2014 for adult offenders.
Open in new tab
Although both community sentence and custody are effective at reducing property crime, community sentence is more effective.
We find that for some offence types, there are credible alternatives to custody that are either superior or approximately equivalent to a prison sentence in terms of impact on the local crime rate. However, what that alternative is depends on the type of offence and, also on whether the offender is adult or juvenile. The variation of the relative impact of these measures across crime types is not surprising given the diverse motivations and characteristics of different offender types. That the drivers vary across crime types has been theorized and shows up in the magnitudes of different determinants of crime types in the literature (see Loureiro et al. (2009) and Engelen et al. (2016) for why property and violent crime have different underlying motivations).
In terms of the impact of custody on crime, we have discussed several effects in the introduction, namely general and specific deterrence as well as incapacitation, which lead to a reduction in crime while prison is associated with criminogenic effects that act in the opposite direction. The magnitudes of these effects, in particular deterrence and criminogenic effects may vary by crime type and indeed by adult or youth. The effectiveness of alternatives to custody depends on the type of alternative and its intensity. For example, property crimes are often economically motivated and fines may increase the economic impetus by lowering a person’s income and perversely leading to further criminal activity. On the other hand for juveniles, it is likely that the fines are paid by the parent or guardian who may have an incentive to try and stop the juvenile from offending. At the same time the criminogenic effects of prisons could be stronger for offenders convicted of robbery because of the greater likelihood of them meeting potential future co-offenders while incarcerated. The ineffectiveness of community sentences on sexual offending may reflect the ineffectiveness of current regimes of treating sexual offenders in the community.
Limitations
We estimate a reduced-form model to show the effect of alternative sentencing types on different crime types. Although we provide a robust analysis of the problem, there are some limitations of our work. First, as we are estimating a reduced-form as opposed to a structural model, we suggest readers use caution before attaching a causal interpretation to our estimates. Although a structural model is beyond the scope of this article, we take several steps to make sure that we are not estimating a spurious correlation between crime rates and alternative sentencing due to the presence of unobserved variables. Under the assumption of time-invariant unobservables, our fixed-effect estimation strategy effectively removes the impact of such variables from our sentencing estimates. However, fixed-effect estimation strategy does not address any correlation that might still exist with time-varying unobserved variables. We also minimize the issue of time-varying unobservables by incorporating some of the key time-varying variables that could impact crime rate (e.g., PFA unemployment rate, PFA proportion of youths and time fixed-effects).
Second, our study is also likely to be impacted by data quality issues such as measurement error and under-reporting of certain crime variables. For example, a measurement error in the sentencing variables will lead to a downward bias in our fixed-effect estimates. Third, our study is conducted at PFA level. Because PFA is not a natural economic unit of analysis such as individuals or counties/districts, one concern is that our study lacks ecological validity. However, although PFA is not a natural economic unit, from a law-order perspective PFA is an ecologically valid unit since crime-fighting resources are organized accordingly. Nonetheless, we should be careful not to extrapolate PFA level conclusions to propose policies that target specific individuals or groups.
Conclusion
This study explores the urgent question of whether and which alternatives to custody can substitute for incarceration. We examine England and Wales, a region with one of the highest prison populations in Europe and where recent policy has tried to reduce reliance on incarceration. We identify a hitherto unused data set on sentencing practice at the PFA level. We find that community sentences appear to be effective substitutes for custody when addressing property crime and robbery, but not for other types of violent crime. Because custody typically costs more than alternatives (besides the significant social disadvantages), our results suggest that there may be scope to provide for public protection through the criminal justice system more efficiently and humanely than the status quo. The results also suggest that policies implementing alternatives to custody in England and Wales may have already produced moderate success in terms of offering credible alternatives to sentencing judges, even though they have not yet significantly reduced reliance on incarceration as a criminal justice strategy.
==//==
Critical Knowledge Collection - Beccaria (250 years old) and the Drama of Penal Punishment: Civilization or Barbarism? - Physicist
Luiz Flavio Gomes
See all authors
From the perspective of the 3rd millennium, all the brilliant and revolutionary ideas defended by Beccaria in his book On Crimes and Punishments, published in ...
View more
• Digital Book
• Physical Book
Cover Price: R $ 89.00Our Price: R $ 31.15 Save R $ 57.85 (65%) or Save 1x on R $ 31.15
Purchase
Calculate Freight
I do not know my CEP
Heats up Black Friday has begun. Several works with up to 70% off. Enjoy !
DATASHEET
• Description
• Features
• Summary
• All Authors
From the perspective of the 3rd millennium, all the brilliant and revolutionary ideas defended by Beccaria in his anonymous book, July 1764 (Livorno-Italy), were reviewed, analyzed and commented in this book. Beccaria was the most forceful critic of the medieval regime of the Old Regime, which confused crime with sin and prosecuted all those accused of any offense according to the inhuman inquisitive forms based on anonymous denunciation, immediate pre-trial detention, and torture to confess and report. The frequent penalty was death, imposed by the same judge who investigated secretly and without the right to defense. Beccaria critically laid out the foundations of the right to punish, the structuring principles that limit it, the minimum requirements of criminal imputation, some aspects of the most serious crimes of its time, the cruel sanctions applied and the inhuman and degrading procedure adopted. He remains more current than ever in this age of so many violations of fundamental rights by a 21st century justice that recalls the 15th-18th century Inquisition worldwide.
==//==
Coleção Saberes Críticos - Beccaria (250 anos) e o Drama do Castigo Penal: Civilização ou Barbárie? - Físico
Luiz Flavio Gomes
Ver todos os autores
Sob a ótica do 3º milênio, foram revistas, analisadas e comentadas neste livro todas as fulgurantes e revolucionárias ideias defendidas por Beccaria em seu livro Dos delitos e das penas, publicado em ...
Ver mais
• Livro digital
• Livro físico
Preço de capa: R$ 89,00Nosso Preço: R$ 31,15Economia de R$ 57,85(65%)ou 1x de R$ 31,15
Comprar
Calcular o Frete
Não sei meu CEP
Esquenta Black Friday já começou. Diversas obras com até 70% de desconto. Aproveite !
FICHA TÉCNICA
• Descrição
• Características
• Sumário
• Todos Autores
Sob a ótica do 3º milênio, foram revistas, analisadas e comentadas neste livro todas as fulgurantes e revolucionárias ideias defendidas por Beccaria em seu livro Dos delitos e das penas, publicado em julho de 1764 (Livorno-Itália), de forma anônima. Beccaria foi o mais contundente crítico do sistema penal medieval do Antigo Regime, que confundia o delito com o pecado e processava todos os acusados de qualquer delito consoante as desumanas formas inquisitivas fundadas na denúncia anônima, prisão cautelar imediata e tortura para confessar e delatar. A pena frequente era a de morte, imposta pelo mesmo juiz que investigava de maneira secreta e sem direito de defesa. Beccaria expôs criticamente os fundamentos do direito de castigar, os princípios estruturantes que o limitam, os requisitos mínimos da imputação penal, alguns aspectos dos crimes mais graves do seu tempo, as sanções cruéis aplicadas e o procedimento desumano e degradante que se adotava. Ele continua mais atual que nunca nesta era de tantas violações dos direitos fundamentais por uma Justiça do século XXI que recorda em todo mundo a Inquisição dos séculos XV-XVIII.
==//==
==/==
Criminalidade e prisão em segunda instância
Visualizações: 62
Nosso país apresenta cultura jurídica retrógrada, que despreza a análise empírica
O presidente do Supremo Tribunal Federal (STF), ministro Dias Toffoli, ao proferir o voto que mudou novamente a cambiante jurisprudência da mais alta Corte, afirmou que não é a prisão após segunda instância que resolve problemas de criminalidade e de impunidade, ou evita a prática de crimes. No entanto, tal argumento retórico, defendido com forte emoção, não é amparado por estudos científicos que fundamentam a política criminal da grande maioria dos países.
Convém lembrar a Toffoli e aos demais ministros do STF, que repetem acriticamente argumentos de advogados criminalistas muito bem remunerados, que a hipótese sobre se a aplicação de punição severa (prisão) de modo mais ágil contribui ou não para a diminuição da criminalidade é empiricamente testável. Ou seja, tal hipótese pode ser considerada válida ou inválida a partir de análise empírica.
Cesare Beccaria e Jeremy Bentham, que lançaram as bases da criminologia nos séculos 18 e 19, respectivamente, entendiam o crime como produto de decisão de cálculo racional. Infratores avaliam a probabilidade de serem condenados e punidos, e quando ela é baixa se engajarão em mais práticas criminosas. Ambos defenderam a tese de que as leis e as penas devem desestimular indivíduos a cometer infrações, e que a prisão produz efeito preventivo, inibindo comportamentos criminosos em toda a sociedade.
Mas foi o professor Gary Becker, da Universidade de Chicago, que, em 1968, desenhou a análise criminal contemporânea, fomentando o surgimento de literatura abundante que instrui as políticas públicas na Europa, nos Estados Unidos e em outros países. Becker estabeleceu modelo matemático internacionalmente reconhecido para avaliar a criminalidade, contribuição que lhe valeu nada menos que o Prêmio Nobel de Economia em 1992.
O modelo de Becker usa variáveis sobre danos causados pelos crimes, custos de apreensão e condenação dos criminosos, número de crimes e formas de punição, entre outros fatores, para investigar as melhores políticas públicas de combate à delinquência. Atualmente há consenso internacional entre os estudiosos, amparado por estatísticas e metodologia científica, de que, mantidas outras variáveis constantes, o aumento na probabilidade de condenação e punição, em geral, repercute na redução do número de delitos.
Logo, dizer que a prisão após a decisão em segunda instância não contribui para solucionar problemas de criminalidade e impunidade, como fez Dias Toffoli, equivale a sustentar que a quimioterapia não auxilia no tratamento do câncer. Ora, estudos com evidências empíricas comprovaram que a quimioterapia é tratamento eficaz contra a doença, da mesma forma que foi demonstrado que a prisão é solução eficaz contra a criminalidade.
O resultado do julgamento do STF do dia 7/11 coloca o Brasil em posição isolada no mundo, conforme apontou estudo da subprocuradora-geral Luiza Frischeisen, já que 193 dos 194 países da ONU adotam o início da execução da pena de prisão após decisão judicial de primeiro ou de segundo grau.
Pesquisas de Steven Levitt, da Universidade de Chicago, demonstram que a prisão impacta o crime em razão do efeito dissuasório sobre potenciais agentes criminosos. Levitt e Daniel Kessler testaram os efeitos de mudanças legais com incremento de penas de prisão para diversos crimes na Califórnia e concluíram que elas acarretaram a diminuição de ilícitos nos anos posteriores. Estudo de Siddhartha Bandyopadhyay analisou o impacto de condenações e prisões na Inglaterra e no País de Gales e concluiu que as prisões, no geral, fazem decrescer a criminalidade.
Becker também expôs que a probabilidade de condenação e punição é relacionada à renda do criminoso. Ao reconhecer o poder econômico de alguns litigantes, a literatura jurídica americana trata, cientificamente, de temas que entre nós ainda são verdadeiros tabus.
Por exemplo, artigo de John Goodman no Journal of Legal Studies já em 1978 argumentava que juízes podem ser persuadidos com os esforços financeiros das partes ao defenderem as suas causas, por meio de investimentos em pesquisa jurídica, contratação de advogados talentosos e argumentação mais bem formulada. Goodman apresentou modelo matemático em que a probabilidade de uma parte vir a ganhar um processo judicial dependerá do quantum em dinheiro que cada parte gasta para usufruir a melhor defesa.
O autor identificou que o Direito pode evoluir de maneira ineficiente para a sociedade quando os interesses da parte não refletirem os custos e os benefícios sociais agregados que decorrem da norma jurídica que está sendo questionada. Isso ocorre quando o resultado é bom para a parte, mas ruim para a sociedade.
Paul Rubin e Martin Bailey argumentaram que advogados têm interesse de longo prazo na jurisprudência resultante e exercerão pressão contínua para que ela evolua a favor de teses jurídicas que beneficiem seus clientes, atuando como grupo de interesses organizado. Os autores citam o caso da evolução da jurisprudência criminal que enfatiza questões processuais, assegurando a demanda por serviços advocatícios. Tal análise auxilia na compreensão do resultado do julgamento histórico do STF, já que uma das ações que suscitou a mudança jurisprudencial foi impetrada pela própria OAB.
Portanto, é de esperar que, dentre os cerca de 5 mil presos que se podem beneficiar da decisão do STF, os que têm mais recursos financeiros para despender na sua defesa perante o Judiciário sairão mais rapidamente da prisão, como já se vem verificando. Nosso país apresenta cultura jurídica retrógrada, que despreza análise empírica, embora ela explique a certeza da impunidade para alguns e a insegurança jurídica em que vive a maior parte da sociedade.
Nosso país apresenta cultura jurídica retrógrada, que despreza a análise empírica
*DOUTORA EM DIREITO PELA USP, COM PÓS-DOUTORAMENTO NA UNIVERSIDADE DO TEXAS, FOI PROFESSORA NAS UNIVERSIDADES DO TEXAS, CORNELL E VANDERBILT, DIRETORA DO CENTRO DE DIREITO EMPRESARIAL DA YALE LAW SCHOOL E PESQUISADORA EM STANFORD E YALE
THE END
