Consider a person who is convicted of a misdemeanor. It is their first offense. Should that person be punished to the full extent of the law, or dealt with more leniently?
Depending on one’s prejudices, a theoretical case can be made for either approach. Lenient treatment has a risk of causing the offender, along with anyone who hears about the lenient treatment, to believe that penalties for transgression are low or nonexistent, and in this way may encourage future transgressions. Harsh treatment, including jail time, has a risk of leading to additional consequences like loss of a job and restricted future employment possibilities, as well as exposing the first-time offender to seasoned recidivists.
On average and for the population as a whole, what does the empirical evidence say? Jennifer Doleac presents some evidence in “What Becomes of Second Chances?” (Behavioral Scientist, March 24, 2026). She points to a study that she has conducted with Amanda Agan and Anna Harvey based on data from Suffolk County, Massachusetts–where Boston is located. She writes: “In Suffolk County, once police make an arrest or issue a summons, and then determine that probable cause exists for the charge, the case goes to an arraignment hearing. In that hearing, an assistant district attorney (ADA) representing the government decides whether to pursue the charges or dismiss the case. They are essentially deciding whether they think the case is a good use of prosecutors’ time. This is the decision we were interested in. What if more cases were dismissed up front? Would that lead to more recidivism, or less?”
Their methodology relies on an underlying fact about this decision-making process. There are a bunch of assistant district attorneys. The nonviolent misdemeanor cases that are the focus of this studey are assigned to them pretty much at random, and given the volume of cases, the ADAs have limited time to make decisions about them. However, some of the ADA’s tend to be more strict, while others tend to be more lenient. To put it more bluntly, a given case is more likely to be either pursued or dismissed as a result of the random decision about which ADA gets the case.
From a standpoint of justice, the idea that the outcome has an element of randomness seems objectionable. From the standpoint of a researcher, it’s catnip. Using a statistical method (for the stat-minded, it’s a kind of instrumental variable called a leniency design), researchers can look at whether a higher number of cases pursued as a result of randomly being assigned to stricter ADAs (or equivalently, the higher number of cases dismissed as a result of being assigned to more lenient ADAs) affects later behavior. Doleac writes:
It turns out that leniency at this early stage—having your case dismissed rather than pursuing prosecution—reduced the likelihood of showing up in court again with new charges by 53 percent, and it reduced the number of future charges by 60 percent. The effects were larger for first-time defendants—those with no prior arrest or conviction on their record.
In other words, for nonviolent misdemeanor cases with no prior arrest or conviction, leniency works in the most practical and empirical sense. For those with prior arrests and/or convictions, leniency becomes less likely to work.
What about nonviolent felony cases, like burglary and car theft? Here, Doleac discusses a study by Michael Mueller-Smith and Kevin Schnepel using data from Harris County, Texas, which includes the city of Houston. They were able to find two sources of underlying randomness.
On September 1, 1994, a Texas law went into effect that made it much less likely that prosecutors would offer “deferred adjudication”–basically, allowing the accused to go on probation for a period (say, six months) rather put off being tried for a nonviolent felony, and if the person had no further problems with law enforcement during that time, the felony charge would be reduced. Doleac writes:
This created the first natural experiment. The date of the policy change—September 1, 1994—sorted defendants into treatment and control groups, as if at random, based on the date of their offense. Nothing else changed at that date. The only difference between these defendants was whether they got a second chance to avoid a felony conviction. It turns out this second chance was very helpful. First-timers who got lucky and received a deferred adjudication committed fewer crimes going forward. They were 31 percentage points less likely to be convicted of any new crime over the next ten years—a 44 percent reduction compared with the control group.
The other natural experiment involved jail overcrowding in Houston. There was a referendum to expand jail space, but that referendum unexpectedly failed, which meant that a much larger share of those charged with nonviolent felonies were
Again, this set up a beautiful natural experiment. Mueller-Smith and Schnepel could compare defendants sentenced on either side of the election on November 6, 2007. The only difference between those sentenced before and after this date was that those sentenced after were much more likely to avoid a conviction. This difference wasn’t because of underlying differences between these defendants or their cases; it was because of the failed ballot initiative. This gave the researchers confidence that any future differences in recidivism or employment would be due to the diversion decision and not to something else about those defendants. Just as in 1994, there were big benefits to greater leniency. As the likelihood of diversion suddenly increased, the likelihood of new, future convictions fell, by 26 percentage points (46 percent). This is a dramatic change. Nearly half of the first-time offenders who would have committed another crime in the future if they’d been prosecuted and convicted as usual cleaned up their acts and avoided future crime when their cases were dropped or they received a deferred adjudication.
This specific evidence on benefits of leniency has its limits. For example, it does not say that police activity or arrests should be reduced. As Doleac points out of those who received lenient treatment for nonviolent misdemeanors: “That person had likely been arrested and booked in jail, and had to show up in court for that initial hearing. This might mean taking time off work, and it certainly meant worrying about what might happen during the hearing. All this isn’t nothing—it is an inconvenience at best and a costly and stressful event at worst.” in addition, the focus of this evidence is on nonviolent misdemeanors and felonies, as well as on first-time offenders. Indeed, one additional practical reason for leniency in such cases is to focus the limited resources of the criminal justice system on repeat offenders and violent crimes.








