I am pleased to tell you that my article, Federal Supervised Release and Actuarial Data (including Age, Race, and Gender): The Camel’s Nose and the Use of Actuarial Data at Sentencing, Volume 27 # 4, Federal Sentencing Reporter, at pp. 207-215 (April 2015), has now been published.* It is the lead article in that issue. The issue is entitled: The Risk Assessment Era: An Overdue Debate.
The editor of this issue is Sonja Starr. She is a Professor of Law at the University of Michigan and a Visiting Professor of Law at Harvard University. She is really nice, and very, very smart. Even though she strongly disagrees with me, she asked me to contribute my thoughts to the endeavor. She has my sincere thanks for the flattering invitation.**
OK, let’s get down to the brass tacks. Way over-simplified, the article makes four essential points:
1. A meta-analysis (that is, examining individual studies for the purpose of integrating the findings of all the studies) of 131 different research papers has identified the static and dynamic variables that appear to be most predictive of reoffense. In descending order of strength of association, they are: (1) criminal companions, (2) criminogenic needs, (3) antisocial personality, (4) adult criminal history, (5) race, (6) pre-adult antisocial behavior, (7) family rearing practices, (8) social achievement, (9) interpersonal conflict, (10) current age, (11) substance abuse, (12) intellectual functioning, (13) family structure, (14) criminality, (15) gender, (16) socioeconomic status of origin, and (17) personal distress.
2. 18 U.S .C. § 3553(a)(2)(C) commands that the “court, in determining the particular sentence to be imposed, shall consider … the need for the sentence imposed … to protect the public from further crimes of the defendant. … ” An actuarial data set that includes all of the 17 variables statistically correlated with crime-including age, race, and gender-would materially assist the federal judge when selecting a sentence that protects the public against further crime. Those variables need not, and should not, drive the sentence. But they are worthy of careful and cautious consideration. In short, it is worth remembering that the blind cannot see.
3. Like the admission policy at the University of Michigan Law School that considered race as one of several factors and that survived strict scrutiny in Grutter v. Bollinger, utilization of race as part of a statistical model at sentencing, together with a host of other empirically validated characteristics, does not violate the Constitution even if one applies “strict scrutiny.”
4. Former Attorney General Holder’s remarks in the summer of 2014 to the defense bar about such matters was, in essence, a call for the rejection of science. As a policy matter, Holder’s arguments should not be taken seriously.
After reading the article, tell me what you think. I hasten to add that I know that my views on this subject will not be popular, but I am not interested in visceral reactions. I look forward to reasoned critiques by people who have read what I wrote. (Yes, I can be an authoritarian and arrogant bastard just like any other good German.)
*The article, the title page and the editor’s forward plus all the materials cited in the text of the article are available for free here (under “Other Items of Interest”). The articles written by others, including Professor Starr, are very much worth reading too. However, I am not permitted to reproduce them. The entire issue is available for purchase here. You can also get the Reporter at most decent law libraries. Of course, you could also subscribe by going here.
**I also need to thank my long-suffering senior career law clerk Jan Rempe for her editorial assistance. (Substantively, I suspect that Jan does not entirely agree with me.) I also want to thank Scott Greenfield of Simple Justice for his critical and candid comments. I must also thank Dr James Oleson B.A., M.Phil., J.D., Ph.D. (Cantab) at the University of Auckland, NZ, for his comments and, most particularly for his stellar research. With a doctoral degree in criminology from Cambridge, a law degree from Boalt Hall, experience as a Supreme Court Fellow and as Chief Counsel to the then newly formed Criminal Law Policy Staff of the Administrative Office of the U.S. Courts, Dr. Oleson is an incredible resource. I particularly appreciated that he took the time to review an initial draft. Needless to say, Jan, Scott and Dr. Oleson are not responsible for the article and the mistakes that surely appear therein. The same is true for Supervising United States Probation Officer Doug Steensma from the District of Nebraska and his colleague Senior Probation Officer Todd Enger who, among other things, patiently taught me about the Federal PostConviction Risk Assessment (PCRA) apparatus and the Psychological Inventory of Criminal Thinking Styles (PICTS) instrument.