Is Punishment a Rational Public Policy Approach to Health Care?
The State of Colorado recently enacted a law that removes the financial cap on penalties levied on assisted living operators by the Colorado Department of Public Health and Environment. The rationale behind the increased punishment provision is that no one in assisted living should be abused or neglected. This is a legitimate public interest. The question for law makers and regulators should be – how do we prevent abuse and neglect from happening?
Rather than focus on the many, many problems with the law which used fear to gen up support (After all, who doesn’t want to increase safety in assisted living residences?), I would like to consider the important public policy question being blatantly ignored by legislators and regulators across the U.S.
Is punishment a rational public policy approach to health care?
As a society, we have come to understand domestic violence and beating of children and animals are not acceptable. But we are still finding our footing when it comes to consensus on behavior changing modalities. Most of the science in this area is found in the criminal justice arena. Let’s take a look at a few highlights on this topic.
Serious Crimes - Canada
Public Safety Canada published a summary of 25 years of research on this issue in 2002. They observed a shift in criminal justice policy in the U.S and Canada in the 70’s away from rehabilitation programs and toward punishment in order to control recidivism. The use of incarceration increased substantially in many jurisdictions and sentences of imprisonment became longer. In addition to the increased use of incarceration, the last 25 years saw an explosion in the use of intermediate sanctions. Their findings:
The overall findings showed that harsher criminal justice sanctions had no deterrent effect on recidivism. On the contrary, punishment produced a slight (3%) increase in recidivism. These findings were consistent across subgroups of offenders (adult/youth, male/female, white/minority).
Compared to community sanctions, imprisonment was associated with an increase in recidivism. Further analysis of the incarceration studies found that longer sentences were associated with higher recidivism rates. Short sentences (less than six months) had no effect on recidivism but sentences of more than two years had an average increase in recidivism of seven per cent.
Intermediate sanctions demonstrated no relationship with recidivism.[i]
Their conclusions:
Criminal justice policies that are based on the belief that "getting tough" on crime will reduce recidivism are without empirical support. . . .
The ineffectiveness of punishment strategies to reduce recidivism further strengthens the need to direct resources to alternative approaches that are supported by evidence. Research based offender rehabilitation programs offer such a viable alternative for reducing recidivism.
Driving Offenses - New South Wales, Australia
The New South Wales study examined the history and subsequent reoffending of 70,000 persons who received a court imposed fine for a driving offense between 1998 and 2000.
The results provide little evidence to suggest the presence of marginal deterrent effects from court-imposed fines on driving offenders. The most consistent predictors of returning to court were individual attributes of offenders. As a result, it is suggested that substantial increases in fines and license disqualifications would have limited potential in deterring recidivist offenders.[ii] [Emphasis added.]
Five Things about Deterrence – U.S. Department of Justice, National Institute of Justice, Washington. D.C.
The DOJ’s National Institute of Justice (“NIJ”) provides an easy to read summary of five important things for law makers and policy makers to know about deterrence that are based on science.[iii]
Relying partly on a 2013 essay, “Deterrence in the Twenty-First Century,” NIJ’s “Five Things About Deterrence” summarizes a large body of research related to deterrence of crime into five points. Two of the five things relate to the impact of sentencing on deterrence — “Sending an individual convicted of a crime to prison isn’t a very effective way to deter crime” and “Increasing the severity of punishment does little to deter crime.”
Their five points:
1. The certainty of being caught is a vastly more powerful deterrent than the punishment. Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment.
2. Sending an individual convicted of a crime to prison isn’t a very effective way to deter crime.
3. Police deter crime by increasing the perception that criminals will be caught and punished. The police deter crime when they do things that strengthen a criminal’s perception of the certainty of being caught. . . .A criminal’s behavior is more likely to be influenced by seeing a police officer with handcuffs and a radio than by a new law increasing penalties.
4. Increasing the severity of punishment does little to deter crime.
5. There is no proof that the death penalty deters criminals. According to the National Academy of Sciences, “Research on the deterrent effect of capital punishment is uninformative about whether capital punishment increases, decreases, or has no effect on homicide rates.”
If punishment does not work on criminals, why in the world would law makers and regulators think it works on good hearted people that are in the business of helping their fellow human beings?
Of course, it does not work on assisted living operators and merely drives them out of the important business of caring for others.
Earlier in this piece I made a bold statement. I said that legislators and regulators are blatantly ignoring the important public policy question: Is punishment a rational public policy approach to health care?
A look at the enabling legislation and websites of many regulatory agencies will find no demand for analysis by regulators and no data on the impact of regulatory changes, and/or penalties, or even the health of the populations. (Although you will find illness metrics.) In fact, you will not find an evaluation of the impact on the industry being regulated – change in the number of providers and staffing, for example.
Health policy and law should be based on science and not out-of-use criminal justice models. Law makers and health departments run by medical professionals and scientists, should, therefore, take a page from law enforcement, and use data and science to inform new laws and regulations.
It is time for public health legislation to be updated to serve the needs of the people.
Look for more weekly blog posts on topics of interest to Assisted Living and Behavioral Health operators. The information herein is intended to be educational and an introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional or reach out to our firm if you would like specific advice on this topic. We welcome topic suggestions! Write to brian@pinkowskilaw.com to recommend a particular subject for us to explore.
[i] Smith, P., Goggin, C., & Gendreau, P. (2002). The effects of prison sentences and intermediate sanctions on recidivism: General effects and individual differences. (User Report 2002-01). Ottawa: Solicitor General Canada.
[ii] NSW Crime and Justice Bulletin, No. 106, March 2007. New South Wales Bureau of Crime Statistics and Research Level 8
[iii] https://www.ojp.gov/pdffiles1/nij/247350.pdf