This post is is the 1st in a 3 part series: Part 2: Desistance from Crime: Is It a Real Thing? Part 3: Beyond Recidivism and Desistance

Throughout the criminal justice system “recidivism” (re-offending) is the measure of whether “criminals” change their ways and stay out of trouble, or whether they backslide into crime after release from prison or wrapping up the terms of parole or other punishment. Recidivism typically is measured in terms of new arrests, convictions or incarcerations. Recidivism rates are used to formulate policy as well as to determine how to treat individuals involved in the criminal justice system.

Having spent nearly fifteen years listening to formerly incarcerated women, I believe that recidivism as a measurable category makes very little sense. In fact, there are no meaningful differences in attitudes, life goals, behavioral choices, financial stability or criminal justice histories between the women considered by the system to have recidivated and those deemed to have desisted from crime. (See more on this in my new article “Beyond Recidivism and Desistance” in the latest issue of Feminist Criminology.)

The women I have come to know were incarcerated in Massachusetts. Most were arrested on drug-related charges and served under a year; none committed violent crimes; nearly all have been homeless and have been assaulted or otherwise victimized; none have been able to obtain and hold onto good jobs that pay living wages; all but a few are mothers. In these ways, they are similar to the vast majority of women incarcerated in the United States.

I identify three sets of problems inherent in the notion of recidivism.

What Constitutes a Crime?

“Crime” is a social (as opposed to natural or universal) construct. Each society determines which behaviors are deemed criminal, which are deemed sick or sin, which are excusable or eccentric, and which are simply nuisances. Within a particular society one’s identity may be as salient as one’s actions in terms of how these labels are applied.

These issues are central to determining whether or not the Massachusetts women “recidivate”.

For example, nearly all of the women became involved with the criminal justice system due to substance mis/use. However, because drug policies distinguish between alcohol (legal) and heroin (illegal), a woman’s drug of choice strongly impacts her likelihood of being arrested and thus “recidivating.” Not surprisingly, alcohol users are least likely to “recidivate” — which is less a function of their substance use than of the legal status of alcohol. Crack and heroin users are more likely to “recidivate” — even when nothing else in their life paths differ from those of the alcohol users.

Most say that they use drugs or alcohol to “self-medicate” (a term they learn in therapeutic programs.) They tend to understand their illicit substance use as a pro-social means of “holding myself together” or “surviving the trauma I’ve been through” and not as criminally motivated. The large majority have been prescribed pain and/or psychiatric medication with similar or even identical chemical make-ups as the illicit substances. Many oscillate between purchasing illicit substances on the street, trading licit prescription drugs (primarily medication for pain or for anxiety) with friends, and drug seeking from multiple doctors. The particular means of obtaining substances at any given time determines whether they “recidivate.”

Police Interactions

Whether a woman is visible to the police impacts her likelihood of “recidivating.” Women who are homeless are more visible and so more likely to be arrested on drug or drunk and disorderly charges than women who use or drink at home. Women involved with violent men may become visible to the police when they are called on domestic violence incidents. Mothers of minor children may be more visible because of supervision and surveillance by child welfare agencies. And, regardless of behavior, women older than about fifty seem to become less visible to the police. This may be a function of the general invisibility of older women in our culture or may reflect a change in status from young “bad girl” to old “bag lady.”

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Further complicating matters, most of the women relate instances in which they were arrested even though they had not broken the law or instances in which they were not arrested even though they did break the law. Reasons include police officers “feeling sorry for me” (as several women said) and so “letting me off with a warning,” as well as officers who are “out to get me” (as other women said) and so “picked me up for doing nothing.” Not surprisingly, in many cases the woman’s race contributed to whether the officer was sympathetic or not.

Even a particular woman might report inconsistent responses depending upon the particular police officer. To be clear, it often is reasonable for officers to respond in ways that are sensitive to the particulars of a situation. For the Boston women, interactions with the police typically involve prostitution, drug use, vagrancy, etc. Some officers may feel compassion towards certain women, or may recognize the futility of repeatedly arresting someone for the same minor, non-violent offense. Other officers, however, may be more likely to arrest a Black woman, or a woman who declined his demand for sex or transgressed against his gender ideals.

The Courts

Once a woman is arrested, she enters the court system. At this point she may be “diverted” to a drug or mental health court or treatment program, released on bail, or held pre-trial because she cannot afford to pay bail. Each of these options impacts whether she “recidivates” yet where she is sent at this point is as much a function of where there is space to put her and whether she knows someone who can bail her out as it is a reflection of her own actions.

Then comes the plea bargain stage. In some instances, women plead guilty in order to be able go home to their children on the basis of “time served” rather than continuing to sit in jail awaiting trial. In other instances, they plead guilty to a lesser charge — to a something they did not do (the lawyers and judges know that is the case) as a way of avoiding prosecution on a more substantial charge of which they may or may not actually be guilty. Whatever the reason, the official act of “recidivism” is as much a reflect of the plea bargain as any actual behavior.

Criminalized, not Criminals

The criminal justice system is not set up for people, like the Boston women, who did not do anything very bad to begin with and likely won’t stop the illicit acts they’re doing despite interventions by the police and courts. For the most part, the women simply are trying to survive poverty, pain, inequality and despair. They do not see themselves as criminals (a view shared by many law enforcement and court and correctional officials). Rather, they are criminalized by a system that punishes people who are marginalized, demonized or otherwise deemed in need of “management.” And in these ways they resemble the majority of people caught in the American criminal justice system.

These observations regarding the social construction of criminal status are well known to scholars and practitioners in the field (see Alexander, 2010; Butts & Schiraldi, 2018; Doherty & Bersani, 2016; Farrall et al., 2010). Yet criminal records continue to function as the gold standard used by correctional officials, policy makers, and many criminologists as if these records are lived truths rather than artifacts of aggressive policing in minority communities, discriminatory bail policies, wholesale plea bargaining, and ambivalent attitudes towards medicating pain and trauma. The consequences are dire as entire communities suffer under the weight of “recidivism.”

For the Boston women, “recidivism” has drastic implications. Tagged a “recidivist”, a woman might lose custody of her children. Or, on the basis of a record of “recidivism”, a judge might sentence her to months in prison rather than allowing her to return home on parole.

Coming up next …

In the next post I turn my attention to the concept of “desistance” (from crime) – a more holistic alternative to “recidivism”. While desistance often is seen as more reflective of lived experiences, I argue that it too fails to take into account the structural and institutional forces that criminalize particular populations.