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September 21, 2010

"Risk as a Proxy for Race"

The title of this post is the title of this notable new paper by Professor Bernard Harcourt available via SSRN. Here is the abstract:

Today, an increasing chorus argues that risk-assessment instruments are a politically feasible way to resolve our problem of mass incarceration and reduce prison populations. In this essay, I argue against this progressive argument for prediction: using risk-assessment tools to decrease prison populations would unquestionably aggravate the already intolerable racial imbalance in our prison populations and will not address the real source of mass incarceration, namely the admissions process.

Risk has collapsed into prior criminal history, and prior criminal history has become a proxy for race.  This means that using risk-assessment tools, even for progressive ends, is going to significantly aggravate the already unacceptable racial disparities in our criminal justice system.  Instead of turning to prediction, we need to address prison admissions . Recent evidence suggests that our carceral excess was not so much fueled by the length of sentences, as it was by the front end: new admissions.  The real solution to mass incarceration, then, is not to cut short prison terms though prediction, but to reduce admissions to prison.

September 21, 2010 at 04:50 PM | Permalink

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Comments

I assume the author is at least equally outraged by the even more glaring gender disparity in the prison population.

What's that? More men are in prison because men disproportionately commit big-time, not to mention violent, crimes?

So people wind up in prison because of their behavior rather than their appearance?

Oh, OK, never mind.

Posted by: Bill Otis | Sep 21, 2010 6:19:48 PM

"I assume..."

Well, there's your problem right there.

Posted by: Michael Drake | Sep 21, 2010 6:40:19 PM

Bill, have you ever read about Disproportionate Minority Contact?

Posted by: Jennifer | Sep 21, 2010 7:11:49 PM

Come on, Michael, assuming is a lot easier than reading!

Posted by: Gritsforbreakfast | Sep 21, 2010 7:13:17 PM

I wasn't really convinced as to the author's prescriptive claim: reducing the number of admissions to the CJ system. It was underwhelming because that just raises the question of which crimes should go unenforced (or should not be criminalized). Without more, it's hard to see how this broad principle would lead to a less disparate criminal justice system. That is, without asking the hard question as to which conduct should be decriminalized because that will lead to more equal treatment across groups doesn't really move the ball down the court so to speak. And the harder question still is whether there are nonetheless good reasons not to decriminalize the conduct irrespective of the disparity.

Posted by: Steve Erickson | Sep 21, 2010 8:21:45 PM

Michael Drake --

Either the author is outraged by the even greater disproportion of men in prison or he isn't.

If as you imply he isn't, then he ought to explain why not. Simply chalking the rate of black imprisonment up to racism embodies -- how should I say -- an assumption. Wouldn't want that, now would we!

If on the other hand the author IS outraged by the disproportion of men imprisoned, he ought to explain why this results from society's bias against men (or some other perverse factor). Of course he's not about to do any such thing, there being no such bias. They're imprisoned more because their behavior is more frequently criminal.

Either way, I note that your response, while cute, conspicuously does not even attempt to rebut my main point, which is that people wind up in prison because of what they do, not because of who they are.

It's an article of faith among the America Stinks crowd that America is a racist cauldron, and that blacks are framed by the Nazi prosecutors, starting with Eric Holder.

Oh.......ummmmmm............wait, let me think about that one.

Posted by: Bill Otis | Sep 21, 2010 9:24:53 PM

Anti-admission advocacy as a proxy for lawyer rent seeking.

Sentencing as a proxy for hundreds of felony victimizations of black crime victims.

Black crime victimization as a proxy for destruction of the black family by the lawyer.

Destruction of the black family by the lawyer as a proxy for the growth of government services.

The growth of government as a proxy for the enrichment and empowerment of the criminal cult enterprise that is the lawyer profession.

The total infiltration and control of government by the lawyer as a proxy for lawyer treason and insurrection against the constitution.

Posted by: Supremacy Claus | Sep 22, 2010 5:55:51 AM

To all the honky law profs:

We are going to divert as many black criminals as possible to halfway houses on your street. If you so much as cough about that, we are going to scream racism. The government can foreclosed Fannie Mae properties as halfway houses, foreclosed from irresponsible minority borrowers forced on the banks by lawyer accusations of racism and threats of ruinous litigation. As they emerge from their all night Roman orgies, the loosed black criminals can exchange gang signs with your kids as they try to make it to school in the morning.

Posted by: Supremacy Claus | Sep 22, 2010 6:11:44 AM

Bill, the frivolous contention that the Harcourt is necessarily "outraged" about something doesn't exactly invite serious rebuttal. As to what you describe as your main point, though, let's just say it turns (among other things) on an analogy between race and gender discrimination that arguably doesn't hold.

Posted by: Michael Drake | Sep 22, 2010 9:58:24 AM

Michael Drake --

"Bill, the frivolous contention that the Harcourt is necessarily 'outraged' about something doesn't exactly invite serious rebuttal."

One, I never said he was "necessarily" outraged; but, two, you can tell from his language that he is in fact outraged; still, three, I appreciate the admission that you made no serious rebuttal.

"As to what you describe as your main point, though, let's just say it turns (among other things) on an analogy between race and gender discrimination that arguably doesn't hold."

And the earth is arguably flat, Charlie Rangel is arguably honest, etc.

So if people wind up in jail on account of their color rather than their behavior, let me ask you: What percentage of your clients were factually innocent? What percentage of your minority clients were factually innocent?

P.S. By "factually innocent," I mean "didn't do it."

Posted by: Bill Otis | Sep 22, 2010 10:39:41 AM

So, Bill, do you believe racial minorities "disproportionately commit" major crime? Your original response to this article strongly suggests you hold such a belief.

Posted by: Anon | Sep 22, 2010 11:42:54 AM

Anon: According to recent statistics from New York City, black offenders commit about 68 percent of all violent crimes in the city although they comprise no more than 24 percent of the city's population.

Posted by: mjs | Sep 22, 2010 1:01:22 PM

"So, Bill, do you believe racial minorities 'disproportionately commit' major crime? Your original response to this article strongly suggests you hold such a belief."

Belief? That word connotes something unproven.

No informed person can seriously doubt that when we break out violent crime statistics by race of the perpetrator, the rate is higher in the black population. The "why" of this differential might be the subject of debate, but the existence of it is not, at least among people who are both informed and rational.

Posted by: Kent Scheidegger | Sep 22, 2010 1:11:22 PM

The question remains. I just want to make sure I am not assuming Bill belives something he in fact does not.

Posted by: Anon | Sep 22, 2010 1:31:45 PM

Anon --

"So, Bill, do you believe racial minorities 'disproportionately commit' major crime? Your original response to this article strongly suggests you hold such a belief."

Of course I believe it, since, as Kent and mjs have noted, conspicuously without contradiction from you, the facts uniformly attest to the truth of that belief.

What authoritative information do you offer to the contrary?

Posted by: Bill Otis | Sep 22, 2010 1:50:13 PM

"Risk has collapsed into prior criminal history." Yes. As a criminal defense lawyer I routinely argue to no avail that, just because my client committed a sex offense years ago doesn't automatically mean he presents a future risk after he's served his sentence. Risk assessment "instruments" - which purport to be scientific, although many of them would never pass the Frye or Daubert test - are a backdoor way of inflicting additional punishemnt for past crimes disguised as assessment of future risk.

Posted by: Lorca Morello | Sep 22, 2010 2:31:47 PM

"And the earth is arguably flat..."

I guess we have different standards.

Posted by: Michael Drake | Sep 22, 2010 3:26:41 PM

Now that you state racial minorities disproportionately commit major crime, the question now is (as Kent noted) why is that so. Do you believe, Bill, that there is something inherent in racial minorities causing them to do so? Your previous tirades suggest that discrimination, life circumstances, society, socioeconomics, law enforcement, etc. have nothing to do with crime. But aren't these important factors to consider if a select minority group of similar people are disproportionately acting in a certain manner?

Posted by: Anon | Sep 22, 2010 3:48:04 PM

Lorca: The current crime plea may be unrelated to the actual crime. The current crime plea represents 1 in 100 actual major felonies, 99 of 100 major felonies go unanswered by the criminal lover lawyer run criminal justice system. Crime, especially, against minority victims, is nearly totally immunized in this country. If something has immunity, the entire enterprise grows. And that is what is happening, massive criminality.

So trivial injustices based on statistical anomalies against the criminal pale in comparison to the massive, unanswered, immunized crime victimization rate.

Posted by: Supremacy Claus | Sep 22, 2010 3:52:15 PM

""Risk has collapsed into prior criminal history." Yes. As a criminal defense lawyer I routinely argue to no avail that, just because my client committed a sex offense years ago doesn't automatically mean he presents a future risk after he's served his sentence."

But he does when compared to people in the general population. It is the case that the best predictor of future conduct is past conduct- the empirical literature supports this assertion. Perhaps it's just common sense, but scientific inquiry has confirmed it.

Additionally, as Bill alluded to, the greatest risk factor for crime is entirely genetic: sex.

Posted by: Steve Erickson | Sep 22, 2010 4:53:33 PM

I don't believe minorities are predetermined to commit crime. The prevailing factor-and this applies to all races-is the non-marital birthrate. 70 percent of black children in the inner city are born to a single mother, often in her teens.

The social pathology from this breakdown in the family unit is manifold and bears directly on the disproportionate crime rate.

Posted by: mjs | Sep 22, 2010 7:13:15 PM

The first step in the process is a complaint. Are Blacks more likely than White to be the subject of a complaint? Probably yes.
Next step is an arrest. The relative B/W probability of arrest depends on both the offense severity and type. for example there appear to be little difference in the B/W probability of a public intoxication arrest where there are very large differences (adverse for Blacks) for driving while barred and armed robbery.
Blacks are more likely to be detained after initial appearance before a magistrate.
Blacks are more likely to have high bonds in part because the offense severity is higher.
Black are more likely to plea bargain (they plead guilty to something and are convicted at low cost).
It appears that Blacks are less likely to be put on probation (in particular if they are nonresidents).
It also appears they are not as likely to be paroled (In particular if they are a gang member).

In other word they pass though a series of branch points where most branching ratios are biased in favor of Whites.

Posted by: John Neff | Sep 22, 2010 8:44:35 PM

Anon --

You're good at asking questions but not so good at answering. Before I answer another one of yours, answer this one of mine: Is it not the case that the primary reason X winds up in jail is X's behavior?

Posted by: Bill Otis | Sep 22, 2010 9:18:56 PM

Michael Drake --

I've heard sillier arguments from defense counsel than that the earth is flat.

Posted by: Bill Otis | Sep 22, 2010 9:21:57 PM

Here is a map of racial distribution.

http://www.dailymail.co.uk/news/article-1315078/Race-maps-America.html

The next step is to map crime victimization.

Posted by: Supremacy Claus | Sep 25, 2010 8:05:52 PM

Nowadays many of the people has started to use the proxy servers and the usage has been increased quite high!!

proxy tool

Posted by: shania2010 | Dec 3, 2010 6:19:27 AM

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