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August 4, 2015

"Should prison sentences be based on crimes that haven’t been committed yet?"

The question in the title of this post is subheadline of this new Marshall Project feature story about modern risk assessment tool being used at sentencing.  The lengthy piece, carrying the main headline "The New Science of Sentencing," merits a read in full, and here are excerpts:

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....

[T]he approach has bipartisan appeal: Among some conservatives, risk assessment appeals to the desire to spend tax dollars on locking up only those criminals who are truly dangerous to society. And some liberals hope a data-driven justice system will be less punitive overall and correct for the personal, often subconscious biases of police, judges and probation officers. In theory, using risk assessment tools could lead to both less incarceration and less crime.

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?...

The core questions around risk assessment aren’t about data.  They are about what the goals of criminal justice reforms should be.  Some supporters see reducing incarceration as the primary goal; others want to focus on reducing recidivism; still others want to eliminate racial disparities.  Risk assessments have drawn widespread support in part because, as long as they remain in the realm of the theoretical, they can accomplish all those goals.  But once they enter the real world, there are usually trade-offs.

August 4, 2015 at 09:07 AM | Permalink


The main theme of my argument with the criminal law is to start addressing crime by addressing the person. It purpose is to protect future victims, Job One and Job Last of government.

So under my scheme, a person who commits a homicide of a family member goes home, and a shoplifter may be executed. The murderer may be a very moral victim of abuse who kills his abuser. The shoplifter may be a drug kingpin responsible for mass murder, and shoplifting is the opportunity to get rid of him. This idea represents the return of status crime. You get executed for being a dangerous person, even if the adjudicated crime is not dangerous.

123D is the best risk assessment tool because lawyer math stops at the fourth grade, that needed to handle money.

Here is why is it morally justified. The idea of certainty is a Medieval superstition. All events in the universe are probabilistic and carry uncertainty. So the orbits of moons and planets have great reliability, but their location cannot be predicted closer than a meter off because of unseen gravitational sources. We should come to accept statistical certainty, strive to improve it with better factor analysis.

The problem is that I have never seen a factor analysis with a result less than 80% of explaining the outcomes. 80% certainty is roughly the same as beyond a reasonable doubt, the burden of proof in a criminal trial.

Most of the defendants have committed hundreds of crimes a year for many years. So if risk assessment violates Fifth Amendment Due Process right to a fair hearing, there is a symmetrical unfairness. The defendant has gotten away with thousands of crime at the expense of thousands of people. The latter include property owners whose real estate value he has dropped 40% or even 100% in his immediate vicinity.

It is now acceptable but extremely unfair for judges to "send a message to all who might be thinking of doing the same." General deterrence is not criticized, but is a much bigger violation of due process. It punishes the defendant for the speculative crimes of people he has never met, has no control over, and who may or may not commit a future crime, and may or may not be thinking about doing so, years away from the trial. General deterrence is to address a thought crime, of another, never met, in the future. That should be addressed at the appellate level, and stopped by the Supreme Court at some point, if they want to make themselves useful.

Good risk assessment is going on now, for the most part. It is very difficult to get into prison. In Philadelphia, there is a waiting list, and murderers are told to come back later. Judges will use any excuse to keep people out. So most of those in prison now, have worked really hard to get there by repeated violations. These tools introduce some math into the decision making.

The above proposal represents a human experiment. It should receive funding to measure outcomes. The gold standard of crime measurement is the household survey of victimization. The most important is to count crimes in the area of the operation of the defendant. If the count drops by the hundreds a year, the tools are useful. If they make no difference, they should be dropped.

I am sure no one is doing a cold pressor test, a physiological measurement of sociopathy. It should be included in the factor analysis.

Posted by: Supremacy Claus | Aug 4, 2015 9:45:55 AM

Whatever happened to "innocent until /proven/ guilty"? How can one be sentenced for a crime never committed....it's crazy.

Posted by: Daniel | Aug 4, 2015 11:14:02 AM


Because they are guilty of the instant offense, which is the only point at which 'innocent until proven guilty' need apply. Once past that hurdle the offender is properly cast into the grinding maw of the penal system.

Posted by: Soronel Haetir | Aug 4, 2015 11:42:31 AM

Daniel. Can you address the hundreds of crimes each commits a year, and the $millions in damages each causes a year? Without incapacitating the person, what else would do?

Perhaps you would mandate lead abatement all the old homes of the USA, at $15,000 each.

Bastardy is the most powerful driver of crime. How would you reverse it.

Those two policies are long term preventive problems.

Address the criminal in front of the judge. What would you do to protect the public from this crime machine?

Posted by: Supremacy Claus | Aug 4, 2015 11:50:34 AM

Once you are found guilty something like a determination of future dangerousness is relevant but "anything goes" is improper even if someone is found guilty of a single offense. The USSC has said as much in particular as to crimes allegedly committed but not found to be beyond a reasonable doubt. See, e.g., Blakely v. Washington.

Posted by: Joe | Aug 4, 2015 12:22:11 PM

Should prison sentences be based on the thousands of crimes already committed by the defendant?

Posted by: Supremacy Claus | Aug 4, 2015 3:46:39 PM


In one comment you said, "hundreds of crimes each commits a year." In the next comment you said, "thousands of crimes already committed".

In the interest beyond fourth grade math, which is more probable and how did you arrive at your conclusion?

Posted by: albeed | Aug 4, 2015 7:40:48 PM

As a defense attorney in an adversarial system, I advocate for my clients. I know in practice that risk assessments can be somewhat inquisitorial. But sometimes I use risk assessments to help clients at bond hearings, at sentencing, and for early release from prison. They educate judges (and prosecutor's)as to the validity of the judge's (or prosecutor's) personal bias and prejudice. My experience in using them for over 5 years is they help defense counsel identify the client's warts and try to constructively deal with the identified warts. Bottom line is if risk assessments don't help advance your client's goals, then don't present the results in a particular case.

Posted by: ? | Aug 4, 2015 9:47:19 PM

Albeed. If the criminal commits 200 crimes a year from age 3 to 73, assuming an early death because of bad habits, 70 times 200 equals 14000 crimes. Assume a value of $10,000 in total damages, including collateral costs, such as 40% drop in real estate prices in the surrounding area, you now have $10,000 times 14,000 which equals, $140,000,000, per criminal. Assume 1% of the male birth cohort will be in this very busy category, and you now have 30,000 born a year. Luckily half are dead by age 30, not by age 70, by accident, murder, overdose, and communicable disease. So that is a break for us. So, at any one time, there are a million busy criminals still alive, you could add $2 trillion in value to the economy, each year, not counting the value of the atmosphere of no fear, the great efficiency of greater trust, the lowering of the cost of security, insurance. I do not consider the cost of replacing a stolen car to be adding value to the economy.

I am proposing killing the other half, and as early as palatable to the public. The best would be a prenatal test of pre-viable fetus, and abortions of that fetus. So that would represent the death penalty for future crimes. The mother would receive education about the horror movie headed her way, with no escape or leaving the theater for 18 years. If the mother is a criminal herself, she should violate probation by the gestation of a future criminal, and be put back in prison until she gets an abortion and gets on injectable, verifiable birth control.

You may object because you are a victim of lawyer propaganda. Nothing compares to the suffering of millions of violent crime victims. These generate no lawyer fees and may rot. It is time for these victims to answer the lawyer, and to bring the violence to these internal rent seeking traitors. Arrest them, try them, and execute them, then kill all the violent criminals. End violent crime in our nation.

Posted by: Supremacy Claus | Aug 4, 2015 10:55:57 PM

?. Did you know the adversarial system is from the disputation method of Scholasticism. It is not even an English practice, but a French one. As a methodology from the 13th Century, do you understand how stupid, unreliable, and worthless it is? Would you accept any methodology from the 13th Century in any other service, even cathedral building? What makes you think it is anymore acceptable in the law as such would be in medicine, bridge building, travel, inn keeping?

Are you going to say, it is the best methodology? Because it truly sucks.

Posted by: Supremacy Claus | Aug 4, 2015 11:14:15 PM

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