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Weekly Column

Fred Nold's Legacy: Why We Send So Many Americans to Prison and Probably Shouldn't

Status: [CLOSED]
By Robert X. Cringely

The interface between science and public policy is awkward at best. Scientists and academics need money for research, while politicians need research to build better weapons and sometimes to justify intended policy changes. But what happens if you look for scientific support for some new policy and the results of the research show that what you are intending to do is wrong? You can change your plan or ignore the research. This latter decision, one example of which is the topic of this column, brings with it some peril because if it later becomes known that the research was commissioned, completed, and ignored, then someone's job is on the line. So if you are going to bury research findings, it is a good idea to bury them deep.

America does a better job of putting people in prison than any other country. Just over two million Americans are behind bars right now, a number that has been growing far quicker than the overall population for more than 20 years. The impact of this mass imprisonment is felt especially in the African-American community, where one in 12 men are in prison or jail. The reasons given for these high numbers vary, but something that is frequently mentioned in any discussion is the impact U.S. federal sentencing guidelines have had on sending more people to jail for longer periods of time. Those very guidelines are now coming under scrutiny by the courts because their imposition may have denied some inmates their constitutional right to a trial by jury. That will be decided soon by the U.S. Supreme Court, but for the moment, all that I know for sure is that the sentencing guidelines in use now aren't working as intended, and the people who installed those guidelines probably knew this even before we started building so many prisons.

Even if the U.S. Supreme Court shortly finds that the sentencing guidelines are constitutional, THEY DON'T DETER CRIME.

Back in the early 1980s, a couple of economists at California's Hoover Institution (Michael Block and Fred Nold) did a study on the effect of monetary fines on antitrust enforcement. Their idea was to look at law enforcement as a purely economic activity. How could fines be structured to offer the greatest incentive to do the right thing? They did some research, gathered some data, published a paper and generally concluded that there were some economic forces involved and it just might be possible to not only encourage potential white collar criminals to think again -- these fines could also be a significant source of revenue for the enforcers. The paper was well received (you can still find it on the Internet), though no laws were changed as a result. But it got Block and Nold some attention from the U.S. Department of Justice.

Then the two got a call from the U.S. Sentencing Commission. This is the board that oversees federal criminal sentencing to ensure that sentences are being correctly applied by judges. "Correctly" in this case means that they are generally compliant with published guidelines. These guidelines are updated every 20 to 30 years, and it was time for such an update. The Feds thought that just maybe Block and Nold could come up with some economic twist for the new guidelines that would make them more effective at reducing crime. So they commissioned Block and Nold to do a big study budgeted at, I believe, $250,000.

They did the study in 1982, and the principle players were Block, Nold, and Sandy Lerner, who was their statistician. Block and Nold thought they were headed for the big time, and started a company to do this kind of work.

Then things began to go downhill. The DoJ didn't like what it was hearing as the study progressed, and they may have refused to accept the final paper. Certainly, they refused to pay because Block and Nold went out of business, and Nold went into a deep depression that ended with his suicide in 1983. But Block was actually named to the Sentencing Commission, where he served a six-year term. He also became a law professor at the University of Arizona, and today works at a conservative Arizona think-tank, the Goldwater Institute, and does not reply to my e-mails.

Why should we care about any of this?

Well, for one thing, I knew Fred Nold and hate to think that his work would die with him. But much more importantly, we should care because I'm told the Block and Nold study, which was intended to economically validate the proposed sentencing guidelines, instead showed that the new guidelines would actually create more crime than they would deter. More crime, more drug use, more robbery, more murder would be the result, not less. Not only that, but these guidelines would lead to entire segments of the population entering a downward economic spiral, taking away their American dream.

There is no mention anywhere of this study, which was completely buried by the DoJ under then-secretary Edwin Meese. The proposed sentencing guidelines were accepted unaltered and the world we have today is the result. We spend tens of billions per year on prisons to house people who don't contribute in any way to our economy. We tear apart the black and latino communities. The cost to society is immense, and as Block and Nold showed, unnecessary. AND THE FEDS KNEW THIS AT THE TIME.

It is one thing to make what turns out to have been a mistake and another thing altogether to make what you have reason to believe will be a mistake. Why would the DoJ, having good reason to believe that the new sentencing guidelines would create the very prison explosion we've seen in the last 20 years, go ahead with the new guidelines? My view is that they went ahead because they were more interested in punishment than deterrence. They went ahead because they didn't perceive those in prison as being constituents. They went ahead because it enabled the building of larger organizations with more power. They went ahead because the idea of a society with less crime is itself a threat to the prestige of those in law enforcement.

Where would we be today if the Block and Nold paper had been accepted and acted upon? Well, we'd probably have a few hundred thousand fewer people in prison. We'd probably have hundreds fewer prisons. Our black communities, especially, would probably be more economically productive. We'd probably have less drug use, fewer unwed mothers, it goes on and on.

And while the disappearance of the Block and Nold paper is an opportunity lost, whatever conclusions they made then would probably apply just as well today.

Nold is gone. Block won't talk, at least not to me. There may or may not be a file somewhere at the DoJ. But there is their statistician Sandy Lerner, who remembers well her work on the study. After Block and Nold folded, Sandy's next venture was to start a company with her husband, Len Bosack, that they called Cisco Systems. Maybe you've heard of it.

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