December 15, 2015
Pennsylvania to Become First State to Use “Precrime” Statistics in Criminal Sentencing
Michael Krieger
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Posted Tuesday Aug 4, 2015 at 1:33 pm
Criminal sentencing has long been based on the present crime and, sometimes, the defendant’s past criminal record. In Pennsylvania, judges could soon consider a new dimension: the future.
Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes. As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.
– From the Five Thirty Eight article: Should Prison Sentences Be Based On Crimes That Haven’t Been Committed Yet?
As technology generally continues to advance, one thing you can be sure of is the criminal justice system’s use of innovative new “tools” will grow exponentially. This can be a good thing, but it can also be a very dangerous thing. Pennsylvania’s new law that permits the use of data showing whether people are “deemed likely to commit additional crimes” in criminal sentencing, is a perfect example of how an over reliance on technology can be a threat to liberty and due process.
Rather than explaining my position on the matter right here, I think it best to make my points within excerpts from the article itself. From Five Thirty Eight :
Criminal sentencing has long been based on the present crime and, sometimes, the defendant’s past criminal record. In Pennsylvania, judges could soon consider a new dimension: the future.
Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes. As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.
Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science. The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record. They are now used at some stage of the criminal justice process in nearly every state. Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.
But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself. A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely. Those deemed high risk could spend more time behind bars.
There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.
The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?
Even some supporters of risk assessment in bail and parole worry that using the tools for sentencing carries echoes of “Minority Report”: locking people up for crimes they might commit in the future. In a speech to the National Association of Criminal Defense Lawyers last August, then-Attorney General Eric Holder said risk assessment tools can be useful in directing offenders toward rehabilitative programs, allowing them to shorten their prison sentences. But he criticized the use of such tools at the sentencing phase. “By basing sentencing decisions on static factors and immutable characteristics — like the defendant’s education level, socioeconomic background, or neighborhood — they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society,” he said.
Wow, I actually agree with Eric Holder for once. For him to take such a decent position, it must mean bank profits aren’t threatened.
Fosque’s objection underscores one of the central questions in the risk assessment debate: Is it fair to look at the behavior of a group when deciding the fate of an individual? Statistics, after all, can’t say whether Fosque will commit another crime, and he believes he’s doing everything possible to avoid further run-ins with the law.
There is little question that well-designed risk assessment tools “work,” in that they predict behavior better than unaided expert opinion. Over the past several decades, dozens of social scientific studies have been published comparing professional predictions of risk to predictions made by statistics. When implemented correctly, whether in the fields of medicine, finance or criminal justice, statistical actuarial tools are accurate at predicting human behavior — about 10 percent more accurate than experts assessing without the assistance of such a tool, according to a 2000 paper by a team of psychologists at the University of Minnesota.
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