Sonia Starr, a law professor at the University of Michigan, has an op-ed in the NY Times titled 'Sentencing by the Numbers', about a trend in twenty states to determine criminal sentences by statistical evidence concerning the convicted person's particulars, such as criminal history (fair enough), job and marital status, credit rating, address, and many more. This is plain and simple profiling, of course, and discriminatory. And probably unconstitutional.
IN a recent letter to the United States Sentencing Commission, Attorney General Eric H. Holder Jr. sharply criticized the growing trend of evidence-based sentencing, in which courts use data-driven predictions of defendants’ future crime risk to shape sentences. Mr. Holder is swimming against a powerful current. At least 20 states have implemented this practice, including some that require risk scores to be considered in every sentencing decision. Many more are considering it, as is Congress, in pending sentencing-reform bills.
The sort of factors going into a risk assessment, including the ones mentioned up top are often race-related, and very often are considered mitigating circumstances as a basis for reducing sentences. But under this new 'scientific' scoring there is no upside for a criminal of disadvantaged background or present circumstances. There may also be pressure on elected judges to be especially harsh to high-risk convicted persons so as not to appear 'soft on crime'.
While well intentioned, this approach is misguided. The United States inarguably has a mass-incarceration crisis, but it is poor people and minorities who bear its brunt. Punishment profiling will exacerbate these disparities — including racial disparities — because the risk assessments include many race-correlated variables. Profiling sends the toxic message that the state considers certain groups of people dangerous based on their identity. It also confirms the widespread impression that the criminal justice system is rigged against the poor.
Criminal justice policy should be informed by data, but we should never allow the sterile language of science to obscure questions of justice. I doubt many policy makers would publicly defend the claim that people should be imprisoned longer because they are poor, for instance. Such judgments are less transparent when they are embedded in a risk score. But they are no more defensible.
I suppose the proponents of evidence-based sentencing have a Hari Seldon-like savant who has devised the principles of Psychohistory (as in Asimov's Foundation novels). Or perhaps we are working our way toward the world of 'The Minority Report'. Thought crimes, anyone? I can recall a book some decades back with mugshots of turn of the last century criminals. Why, you could tell they were criminal just by looking at them! This weekend there was a TED Radio Hour
program on human evil and the permeability of the good/evil line in humanity, and the unpredictability of human response. I was driving and not paying close attention, but enough to question the sentencing algorithms discussed in this op-ed. I have just downloaded the podcast, and will listen to it property. I believe it to be worthwhile (The TED Radio Hour is always interesting).
Mr Holder is correct in opposing them. It is a scary development. Read the op-ed, think about it, and act.
Uh...maybe you shouldn't think about it.
Nothing down below the nest of orange snake-y things.