The analysis [of empirical data on re-offending] delineates recidivism risk for offenders with minimal prior criminal history and shows that the risk is lowest for offenders with the least experience in the criminal justice system. Offenders with zero criminal history points have lower recidivism rates than offenders with one or more criminal history points. Even among offenders with zero criminal history points, offenders who have never been arrested have the lowest recidivism risk of all.
Federal courts deal with many criminal defendants with little criminal history:
The annual proportion of federal offenders with zero criminal history points is substantial. In fiscal year 2001, more than four out of every ten federal offenders (42.2%) had zero criminal history points for their Chapter Four computation. This proportion was even higher in fiscal year 1992, when nearly half (49.9%) of citizen offenders had zero criminal history points.
About 29.8% had no prior arrests or convictions, 8.4% had been arrested but not convicted, and 1.5% had only minor prior criminal convictions, in 1992. Defendants with no criminal record are much more like to be women, to be white, to be older than 41 years old, less likely to have used drugs, more likely to be employed, more likely to be married, more likely to be high school graduates or have some college, and are more likely to have dependents. Non-violent drug, fraud and theft offenses are the most common charges, making up about three quarters of cases, with fraud and theft much more common than for those with prior offense records. There is no significant difference in mental illness rates.
The recidivism rate of those with no criminal history points is 11.7%, for those with 1 criminal history point is 22.6% and for those with more criminal history is 36.5%. Within those with no criminal history points:
Among the potential first offender groups, group A [no prior convictions or arrrests] has the lowest primary recidivism rate at 6.8 percent, followed by offender group C [minor convictions, no prior arrests] with a rate of 8.8 percent. Offenders in group B have a recidivism rate of 17.2 percent, [prior arrests but not prior convictions] which is more than twice the rate of group A and nearly twice the rate for group C. Even with the comparatively higher recidivism rate, group B’s rate is still several percentage points lower than offenders in the remaining zeroes group (21.7%) [zero criminal history points but some prior conviction for a non-minor matter].
One must ask, however: Is it appropriate to consider a statistically important difference between offenders who have and have not been arrested before, with no prior convictions, as an arrest not producing a conviction doesn't have any formal legal importance and is subject to manipulation without judicial branch review? This issue is akin to the issue of considering uncharged and acquitted conduct at sentencing.
The answer matters a great deal to many non-violent offenders with little criminal history, who make up a large share of all defendants in federal court. Serious state court criminal cases tend to have fewer first time offenders, fewer white collar cases and fewer drug cases on a percentage basis.
Of course, since these offenders tend to get the lightest sentences anyway, adjustments in this sentencing regime don't have the greatest fiscal impact on the system, although leniency with this group may be the least politically painful. The harder policy question is how to deal with offenders who a chronically recidivist, but commit not very serious crimes -- repeat minor drug dealers and small dollar amount thieves, for example. In those cases the cost of the crimes committed may be small relative to the cost of incarceration.