By any account, the criminal legal system inflicts tremendous harm. Stop-and-frisk policies produce hassle and humiliation. Pretrial detention disrupts lives and communities. Court proceedings impose serious burdens on victims, witnesses, and defendants alike. Punishment, by definition, entails hardship. The implicit justification for much of this harm is that the damage is worth it. We authorize the government to invade people’s privacy and restrict their liberty because, in theory, the system serves an important social good by preventing crime or ensuring comeuppance.
But what if the damage outweighs the good the system produces? And how do we figure out whether it does? We can quantify the fiscal costs of system components like arrests and incarceration. Their primary cost, though, is not fiscal: It is the harm to the person who experiences the search, arrest, or incarceration, as well as the indirect costs to family and community. Those human costs are harder to measure. Although activists and community groups have done critical work to qualitatively document the human costs of detention, quantifying those costs in a concrete way has been more elusive. How do you quantify the humiliation of a public arrest? The effects of imprisoning a young parent? On the other side of the balance, the social good that criminal law enforcement usually purports to promote is “public safety” — the prevention of crimes. How many crimes must we prevent to outweigh the costs of detention? Alternately, to the extent that punishment serves retributive goals, punishment must be proportionate to the offense. How do we determine if a punishment and an offense are comparably severe?
As important as these questions are, there have been very few attempts to quantify the harm of experiencing criminal law enforcement vis-a-vis the harm of experiencing crime.
The four of us recently developed a novel survey technique for this purpose. The technique, which we call Relative Harm Valuation, or RHV, asks people to imagine experiencing two kinds of harm and judge which is worse. When they do, people often judge police interaction and imprisonment — even a few days of imprisonment — to be as harmful as being the victim of a serious crime.
What Is Relative Harm Valuation and Why Does It Matter?
To put our method in context, it’s worth understanding the more traditional method of valuing difficult-to-quantify harms: contingent valuation. Contingent valuation asks people to put a price tag on harmful experiences. For example, a survey might ask people how much they would pay to avoid experiencing a particular crime. The dollar amount named becomes a monetary estimate of the cost of that crime. Various dollar-value estimates can then be tallied up for purposes of cost-benefit analyses.
The problem with this approach is that converting everything into dollars can introduce both noise and distortion, because the value of a dollar depends on the situation of the person who possesses it. A rich person can pay more to avoid a given harm than a person who doesn’t have many dollars to start with.
Working independently in two pairs, we arrived at an alternate method to estimate the experiential harms of imprisonment versus crime. Rather than ask survey respondents to equate some harm — say, detention — to a dollar value, RHV asks them to compare it with the harm on the other side of the policy balance: being the victim of a crime. We asked people questions like, “If you had to choose between spending a month in jail or being the victim of a robbery, which would you choose?”
This method forces respondents to envision themselves experiencing both detention and crime and compare those harms to each other, rather than trying to translate the experience of each harm into dollars and cents. It avoids the distortion of traditional contingent valuation; you’re no longer asking people to name a price for a given harm, which will necessarily be colored by how much money the person has. Asking them to compare one harm to another levels the playing field. Moreover, asking respondents to imagine themselves experiencing each harm avoids the problem of respondents discounting the suffering of a theoretical detained person. It is a measure of comparative suffering that can ground policy decisions, whether policy is oriented toward prevention or punishment.
What RHV Tells Us About Pretrial Detention and Sentencing
Two of us — Sandy Mayson and Megan Stevenson — were grappling with the question of when pretrial detention is justified on the basis of “dangerousness.” Pretrial detention is not punishment; those detained pretrial are presumptively innocent and have the same right to liberty as anyone else. The sole justification offered for pretrial detention is simply that its benefit (preventing crime) outweighs its cost (the loss of liberty). The question is: How many crimes, and what kind of crimes, must be prevented to outweigh, for instance, the detention of ten people for three months? How do we weigh the cost in liberty against the benefit of averted crimes?
Stevenson and Mayson ran a series of RHV studies asking people to choose between different lengths of time in jail and being the victim of certain crimes. The typical respondent deemed a single day in jail to be as bad as being the victim of a burglary or robbery, and a month in jail to be as bad as suffering a serious assault. Notably, the results did not vary for those who had personal experience with imprisonment, those who had personal experience with criminal victimization, or those who had personal experience with both. Nor did the results vary significantly by age, gender, or race.
The implication of these results, as Stevenson and Mayson have written elsewhere, is that only extremely high probabilities of serious pretrial crime can even plausibly justify pretrial detention on cost-benefit grounds.
The other two of us — Jane Bambauer and Andrea Roth — independently arrived at the same methodology as a way to determine what sentence of imprisonment might be “proportionate” to the harm inflicted by the crime. Their motivation was to explore whether the substantive due process limits on punitive damages in tort law (which, under State Farm v. Campbell, generally cannot be over 10 times the amount of “compensatory” damages corresponding to the harm caused) might be extended to criminal sentences as well. Bambauer and Roth overcame the difficulty in estimating what part of a criminal sentence corresponds to the harm caused by the crime by using RHV. This method measured the harm-equivalent sentence by quantifying what length of prison sentence survey respondents would be willing to endure to avoid being victimized by various crimes.
Bambauer and Roth’s results suggest that sentences exceeding a 10:1 ratio to “harm” are routinely imposed and thus would be presumptively unconstitutional under Campbell. Notably, unlike Mayson and Stevenson, they found significant gender differences in the willingness to tolerate crime victimization to avoid prison: Women were more willing to experience a physical attack rather than incarceration.
Where Do We Go from Here?
It is important to acknowledge that RHV is not a perfect method. For one thing, it only measures the harms experienced by the person directly affected. A survey that asks people to rank their own experiences of jail and crime does not tell us how much additional harm those two events might indirectly inflict on the broader community. But the direct harms are usually central to the policy question at hand, and thus the technique captures core interests on either side of the equation. There are also reasonable questions about whose perceptions matter most when evaluating any given harm. To the extent that some group has a particularly relevant or well-informed perspective (e.g. those who have actually experienced the harm), researchers can try to focus the survey on that group. The fact that experiences vary across individuals and groups also raises deep questions about how individualized the valuation of any harm should be. Should we take demographic differences into account when measuring harm for purposes of policy analysis? Some differences but not others? Finally, like any vignette-based survey method, this one is subject to the critique that people may not be able to accurately imagine a hypothetical experience or fully recall analogous events they may have experienced in the past.
Despite these limitations, we think that RHV is an improvement over standard contingent valuation for tackling at least some policy questions. In fact, other researchers have already deployed RHV to assess the experiential cost of police stops and arrests, involuntary hospitalizations, and false accusations. The theme of these studies is that many people would rather be the victim of various crimes than be subject to state coercion.
RHV could lend itself to a range of additional applications related to criminal justice reforms. The American penal system has no shortage of entrenched practices that burden people’s lives, and assessing those burdens in relation to their putative benefits may yet open doors to deep, lasting change. From prearrest surveillance practices to so-called alternatives to incarceration to sex offender registries, the possibilities of examining the tradeoffs of these forms of state coercion via RHV are almost endless.
The theme of these studies is that many people would rather be the victim of various crimes than be subject to state coercion.
The RHV method is relatively cheap and easy to implement through widely available online survey tools. It can be conducted not only for academic scholarship, but also for advocacy or impact litigation. As with most things, though, the devil can be in the details. Successful implementation of RHV requires careful attention to a number of particulars — including making sure you are accessing the population you want to survey, making sure that your questions are designed to combat cognitive biases and weed out people who are not paying attention, and ensuring that you are surveying people appropriately and respectfully. Our two papers include methodology sections offering guidance to those wishing to implement the technique.
Relative Harm Valuation is an underused resource for those hoping to better ground criminal justice policy in accurate estimates of the real human costs of incarceration and other forms of system involvement. The studies described above are only a few examples of the potential applications of the method. While RHV — like any empirical method — has its challenges, researchers can be deliberate and careful in their choice of platform, recruitment tools, and question design to maximize the robustness of results. Our hope, in the long term, is that RHV can have an impact beyond the academy. Policymakers, organizers, advocates, and others invested in the work of better assessing and challenging the harms of the criminal legal system may find this method to be a valuable tool to rethink how we approach crime and punishment.