More about AG Holder as an ostrich

My post entitled Like the ostrich that buries its head in the sand, Mr. Holder is wrong about data-driven sentencing drew mostly criticism and even some anger. I was therefore glad to receive an e-mail from James C. Oleson a former senior lawyer with Administrative Office of the United States Courts forwarding two article that he has written on data-driven sentencing. Oleson is extraordinarily knowledgable about the Sentencing Commission, the Sentencing Guidelines and data-driven sentencing relating to predictions of recidivism.

Dr James Oleson, B.A., M.Phil., J.D., Ph.D.

Dr James Oleson

James C. Oleson earned his B.A. in psychology and anthropology from St. Mary’s College of California, his M.Phil and Ph.D. in criminology from the University of Cambridge, and his J.D. from the law school at the University of California, Berkeley (Boalt Hall). Between 2001 and 2004, he taught criminology and sociology at Old Dominion University, in Norfolk, Virginia, where in 2004 he was selected as the university’s “rising star professor.” In 2004, he also was selected as one of the four U.S. Supreme Court Fellows for the 2004-05 year (and was later selected from that group as the 2004-2005 Tom C. Clark Fellow).

After the end of the fellowship, he was appointed as Chief Counsel to the newly formed Criminal Law Policy Staff of the Administrative Office of the U.S. Courts, and he served in that capacity between 2005 and 2010. Dr. Oleson is now on the faculty of the prestigious University of Auckland in New Zealand.* Since arriving at the University of Auckland in 2010, he has taught in the areas of psychological criminology, sentencing, and penology. He is a Senior Lecturer in Criminology and Director of Research at the School of Social Sciences.

In the first article, J.C. Oleson, BLOWING OUT ALL THE CANDLES: A FEW THOUGHTS ON THE TWENTY-FIFTH BIRTHDAY OF THE SENTENCING REFORM ACT OF 1984, 45 University of Richmond Law Review 693 (2010) (PDF here Blowing Out All the Candles), Oleson mounts a scathing criticism of the Guidelines and introduces what I call the “actuarial based risk of reoffense” construct as a way of meaningfully reforming the Guidelines.

In his second article, J.C. Oleson, RISK IN SENTENCING: CONSTITUTIONALLY SUSPECT VARIABLES AND EVIDENCE-BASED SENTENCING, 64 S.M.U. Law Review 1329 (2011) (PDF here 64SMULRev-4 (Oleson) (1)), Oleson identifies the 17 variables that social scientists have accepted as valid risk predictors of recidivism (including race, age, gender, socio-economic status of origin) and then explains why they should survive Constitutional scrutiny. He also attached a helpful appendix to his article that takes the various risk assessment instruments and shows what variables are included in each instrument.

Readers who have a serious interest in federal sentencing, the Guidelines and reforms thereto should carefully read both of Dr. Oleson’s articles. If Attorney General Holder thought it necessary to give a speech–a preemptive strike really–opposing actuarial based risk of reoffense sentencing, this is an issue that is not likely to go away. Indeed, one might even hope that as Congress looks at sentencing reform the ideas so carefully articulated by Dr. Oleson might emerge front and center in the debate. Otherwise, all of us concerned with sentencing reform might just as well follow the example of Mr. Holder, and stick our heads in the sand.


*My son earned his Masters degree with First Class Honours at Massey University in New Zealand.


12 responses

  1. The Equal Protection case against using race as an explicit factor in sentencing seems pretty open and shut to me. If anything, Oleson’s argument makes me even more confident, given that it’s based on Grutter (whose reasoning was explicitly time-limited even when decided, and is rapidly withering ahead of O’Connor’s schedule) and Korematsu(!). Let’s get real — we’re talking about *facial* invidious discrimination in criminal sentencing. Frankly I think that kind of policy, at least as to black defendants, would potentially even be vulnerable to a Thirteenth Amendment challenge.

  2. Totally off-topic: that may be the first reference to Cthulhu I’ve seen in a law review article. You do link the most interesting papers. Now I will go read the rest of them and try to have substantive thoughts on this very important and decisive subject.

  3. Also, I guess I will take this opportunity to note that although you replied to a lot of the comments on the last post, you didn’t really respond to the concerns raised in them. Apologies in advance for the wall of text.

    The issue many of the commenters were raising was not that certain factors are NOT empirically predictive of recidivism. I consider myself ill-equipped to evaluate the statistical methods used in the social science on this topic, but assume for present purposes that race, poverty, unemployment, etc. — note that the non-race factors correlate heavily with race — are indeed highly predictive. The issue is instead that a substantial reason why those factors are so predictive is historical racial discrimination combined with continued systemic bias. Sentencing based on race (and other race-correlated factors) will tend to magnify the systemic bias, potentially creating a feedback loop in which the criminal justice system punishes poor young black men more harshly, resulting in decimation of communities of color and increased antisocial behavior among that group, which in turn results in yet harsher comparative punishment for those people, etc. (A similar risk is present with regard to mental illness, which is also highly predictive of criminality.) In other words, the objection is not fundamentally an empirical one — I have not buried my head in the sand about the predictiveness of these factors — but a moral one.

    In the previous thread you repeatedly directed people back to a paper by Professor Monahan, in which he explicitly states that the only predictive factor that can be considered at sentencing is criminal history, and consideration of other factors would be “offensive to a system of just punishment.” In this post you give us two papers by Professor Oleson, who acknowledges that it is “troubling” to contemplate punishing a defendant for associating with the wrong people, “repugnant” to punish someone for failing to hold down a job, unconstitutional to punish someone for being a drug addict, and “even more troublesome,” morally suspect, unjust, and “palpably unfair” to punish someone based on their race, sex, IQ, and other immutable characteristics over which they have no control.

    Is it your view that moral concerns about fairness and justice have no place in the sentencing calculus, that we should take a purely utilitarian, instrumental view, and that therefore only empirical arguments have weight in this sphere? If not, do you dispute the premises underlying my concerns about “actuarial sentencing” — e.g. that young black men are arrested, prosecuted, and convicted more often at least in part because that’s who police are mostly looking to arrest; or that given our current penal system, a systematic increase in sentences for people in certain communities risks leading to ever-greater levels of criminality within those communities?

    Thanks for taking the time to write about this issue, and for the pointers to the articles. This is important, interesting stuff that I hadn’t thought especially carefully about before this week.

  4. I can’t say I’ve read them exhaustively, but I have read both and think that they make sense in principle.

    But it remains that whatever wrigglings even the Supreme Court may employ to say it passes constitutional muster, using race as a reason to impose a more severe sentence than would be imposed denies equal protection under the law on the basis of race. And it implicitly approves of all the insttituional discrimination that selects black people for the criminal “justice” system and prison from when little black boys start being singled out in 4th grade or less for disproportionate discipline.

  5. Dr. Oleson lost a decisive quantum of credibility when he predicted that actuarial-based sentencing that includes race would “probably” survive constitutional scrutiny. Unless I missed the part where he specified “in Russia” or some such, there are evidenced-based reasons for preventing him from ever practicing law. Such blithely rosy and wholly unrealistic assessments will doom his clients. Four current Justices explicitly reject any consideration of race and, by my count, none of the others would countenance the use of race as a “plus” factor to further entrench racial disparities in economic opportunity, etc., etc., even for the compelling interest in reducing crime. (As I pointed out before, using race as a proxy for other qualities errs in decisive ways. Also, no Justice would sign on to using race as a proxy for criminality, even if partially hidden in an actuarial “risk assessment.”)

    If you disagree, I would be very interested to hear one name, and more so five, that would sign on to this thoroughly misguided constitutional analysis.

    Beyond that, to save pixels, what Peter Attwood and griff said.

  6. This is exactly correct. And I would go a step further. If we are to have a rehabilitative system of justice, all those factors which make a person more like to offend again should be pointers to problems which need to be fixed, to rehabilitation services which need to be offered, at least after a first offense and possibly after second or later offenses as well.

  7. Thanks for sharing this Judge. I agree with Dr. Olsen’s conclusion in ‘Blowing out…’ that a modern version of the sentencing guidelines, without being mandatory, would likely support your mission. It’s good to know the ‘Sentence-O-Matic 1000’ has legs.

  8. I was writing a long reply to this, but I found a very good (short) reason that Olesson is wrong.

    The Civil Rights Act of 1866 14 Stat. 27-30 explicitly bans the use of racial characteristics in sentencing in both federal and state courts. In fact, a judge who used race in sentencing in the way described by Olesson would be guilty of a misdemeanor:

    [A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude… shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

    And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.

  9. Great find Peter H., and it seals the Constitutional argument for any “originalist” judges/Justices tempted by “science” to enshrine explicit race-based punishment into the criminal law. A pity Oleson didn’t do the same amount of research before publishing.

  10. Pingback: More ostrich « Hercules and the umpire.

  11. “What, if anything, should the judge do if he is guilty of assaulting his wife?”

    Why would you ask such a question? It’s pretty obvious. Quit.

%d bloggers like this: