We have discussed in this space before the work by former New Jersey Attorney General, Anne Milgram (D) and the Laura and John Arnold Foundation to better predict risk of reoffending in a criminal justice context. You can read earlier postings here and here.
We mention this because risk assessment is in the news again, this time to help determine prison time. All Things Considered (the NPR program) interviewed “Ben Casselman[, who] has been investigating this for the website FiveThirtyEight.” Formerly a project of the New York Times, and now connected to ESPN, the blog “uses statistical analysis — hard numbers — to tell compelling stories about politics, sports, science, economics and lifestyle.” The blog recently created a parole simulator as a companion to a long blog, Should Prison Sentences Be Based On Crimes That Haven’t Been Committed Yet? The NPR interview, Should Future Risk Be Used To Calculate Prison Sentences?, starts with this lead “[h]ow likely is a defendant convicted of a crime to commit another crime in the future? Pennsylvania is expected to start using what’s called risk assessment to help determine prison time. It would be a data-driven sentencing process based on the statistical probability that a criminal will reoffend.”
According to the FiveThirtyEight blog posting,
Pennsylvania[, based on a proposed risk assessment plan] 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.
. . .
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.
Yet, risk assessment tools hold a great deal of promise to bring objective assessments to predicting future criminal behavior.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More