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August 11, 2014

Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing

Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting a few weeks ago justifiably made headlines based on his expressions of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here).  Because this is such an important and dynamic topic, I am waiting until I have a big block of time to discuss with sophistication and nuance AG Holder's sophisticated and nuanced comments on this front. 

In the meantime, thankfully, a number of other insightful and sophisticated folks are talking up and about what AG Holder had to say.  For starters, in today's New York Times, LawProf Sonja Starr has this new commentary which starts and ends this way: 

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.

Risk-assessment advocates say it’s a no-brainer: Who could oppose “smarter” sentencing? But Mr. Holder is right to pick this fight. As currently used, the practice is deeply unfair, and almost certainly unconstitutional. It contravenes the principle that punishment should depend on what a defendant did, not on who he is or how much money he has....

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.

In addition, Judge Richard Kopf and defense attorney Scott Greenfield have this great new blogosphere back-and-forth on this topic:

All this is highly recommended reading!

August 11, 2014 at 10:31 AM | Permalink


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I think I can help both sides.

Count the past crimes. We can stop predicting. The bigger the number, the more likely they are to re-occur. Please, count the real crimes, not the fictitious lesser adjudicated crime in a plea agreement. As a taxpayer, retribution is an expensive luxury, but incapacitation returns many multiples of benefit to the population.

Posted by: Supremacy Claus | Aug 11, 2014 11:14:14 AM

Do we consider risk now?

Posted by: Wondering | Aug 11, 2014 1:53:22 PM

Few people are capable of expressing with equanimity opinions which differ from the prejudices of their social environment. Most people are even incapable of forming such opinions.
Albert Einstein

Posted by: George | Aug 11, 2014 4:32:36 PM

Hello, thank you for covering this important topic; glad to see it getting attention in NYT and beyond. My Urban Institute colleagues and I recently did a study on racial disparities in probation revocation and found that risk assessments and criminal history were large contributors to differential revocation rates.

We share Greenfield's concerns that risk assessments are suffering from "garbage in, garbage out." We also believe that we need to extend scrutiny beyond sentencing to the criminal justice decision points that already use risk assessments. Here’s a blog post we just published that summarizes our thoughts: http://urbn.is/1sHi2DP

Posted by: Helen Ho | Aug 11, 2014 4:47:35 PM

This is probably a bit of an aside, but I couldn't help but get a bit irritated when reading through the letter to the U.S. Sentencing Commission that Sonja Starr links to in her article. Specifically, this sentence: "More and more, studies are showing that a defendant's sentence will be significantly influenced by the judicial assignment of the case and the particular court that conducts the sentencing. This is quite troubling"(pgs. 8-9).

The citation provided refers to a report that was issued by the Transactional Records Access Clearinghouse (TRAC) based out of Syracuse University. The report uses judge identifying data to show the disparity in sentencing among judges within the same district, controlling for all other variables. Why is this irritating? Because the DOJ spent years fighting TRAC's FOIA requests which attempted to obtain the very information that allowed the organization to conduct the research that the DOJ is now citing to support its argument! Professor Berman has a post from March 4, 2012 discussing TRACs data in more detail. TRAC spent years (decades?) litigating FOIA requests with the DOJ in an attempt to obtain the data that it uses, and based on the court documents the DOJ tried everything possible to not release the data. It appears that ICE is currently using the same tactics to prevent releasing its data to TRAC.

I apologizing for digressing from the substance of this issue, but I had to get this blatant portrayal of departmental hypocrisy off my chest. Additionally, as a graduate student doing research in this area and knowing how hard it is to obtain judge level data at the state level, it irks me to see someone from within the department that blocks all attempts at such data do an about face and cite the research that their department attempted to prevent.

Posted by: Sean | Aug 11, 2014 6:31:56 PM

Risk assessment is a tool. I use them all the time to obtain lower sentences for all my clients not just white ones. At a certain level, a risk assessment identifies a client's criminogenic problems (dynamic factors that are statistically correlated with recidivism) and as a defense attorney I propose solutions to ameliorate my client's criminogenic problems. (You can be sure that incapacitation alone doesn't solve many criminogenic problems). You use your common sense -- 3 arrests for misdemeanor marijuana possession just do not count the same as three arrests for felony trafficking in marijuana. Holder and Starr's complaints are identical to those who say standardized testing is racially biased. It seems to me that social scientists can and should correct for racial bias when it is objectively show to exist. If you think the assessments are biased then come up with a plan to reduce bias. Don't just say garbage, in garbage out -- throw it all away. Maybe science will eventually say throw it away but don't throw it away based on say so evidence.

Posted by: ? | Aug 11, 2014 9:45:09 PM

First time reading.. I am a former law enforcement officer.

The articles of confederation, the state and federal constitution are the foundation.

If the circuit and supreme court judges would follow those, I feel justice would be served. However, in Florida the circuit court judge is elected every 4 years, the supreme court judge every 6 years.

So much for Justice.. Oh! your honor, you forgot your calculator to add up the sentencing points.

Posted by: Robert Gonsalves | Oct 16, 2014 1:30:33 AM

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