POST: "The new science of sentencing: Should sentences be based on crimes that have not been committed yet," published on August 4, 2015 (I missed this one! HL) by the Marshall Project, in collaboration with FiveThirtyEight.
GIST: "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. This story was produced in collaboration with FiveThirtyEight. Sign up for the FiveThirtyEight newsletter or follow FiveThirtyEight on Facebook or Twitter. 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. Pennsylvania, which already uses risk assessment in other phases of its criminal justice system, is considering the approach in sentencing because it is struggling with an unwieldy and expensive corrections system. .......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..........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. But to critics, just because a trait predicts crime doesn’t mean it’s fair to use it in sentencing decisions. Pennsylvania’s proposed tool will take into account factors like sex and age that are beyond an individual’s control. It will also include a question on where offenders live and, in some cases, penalize residents of urban areas, who are far more likely to be black. Perhaps most controversially, the Sentencing Commission’s draft assessment tool will factor in an individual’s history of arrests, not just convictions. Even using convictions is potentially problematic; blacks are more likely than whites to be convicted of marijuana possession, for example, even though they use the drug at rates equivalent to whites. But arrests are even more racially skewed than convictions, and public defender groups in Pennsylvania think their use to determine sentencing may be unconstitutional.........Bradley Bridge, an attorney with the Defender Association of Philadelphia, points to differences in policing around the state, which he says can have a dramatic effect on arrests. Heavy policing in some neighborhoods in Philadelphia makes low-income and nonwhite residents more likely to be arrested, whether or not they’ve committed more or worse crimes. “This is a compounding problem,” Bridge said. “Once they’ve been arrested once, they are more likely to be arrested a second or a third time — not because they’ve necessarily done anything more than anyone else has, but because they’ve been arrested once or twice beforehand.”.........“I’m not trying to design interventions that turn bad guys into good guys,” Berk said. “My job is to provide, I hope, better information to inform whatever decisions are being made.” In Pennsylvania, at least, such policy discussions have drawn little public attention despite the best efforts of the Sentencing Commission, which in addition to publishing its detailed reports has held public hearings across the state. Those hearings drew so few people that Bergstrom, the commission’s executive director, extended the public comment period through the end of the year. Bergstrom, who has run the commission for nearly two decades, is walking a delicate line. He said he wants to create a tool that accurately predicts behavior while avoiding endless lawsuits. The commission’s research has found that prior arrests are a better predictor of recidivism than prior convictions. But using arrests would almost certainly draw a constitutional challenge from the state’s public defenders. They point to the racial disparities in arrest rates and say it’s illegal to presume someone is guilty just because he was arrested. Based on the work the commission has done so far, Bergstrom says he’s leaning toward using the tool to identify outliers — low-risk individuals to defer from prison altogether and high-risk individuals to flag for extra time or treatment. That would be a fairly limited approach, but it wouldn’t avoid the central question of whether offenders should spend more time behind bars simply because of how statistical tools say they will behave in the future."
The entire story can be found at:
PUBLISHER'S NOTE:
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
