More ostrich

I had a transfusion yesterday. It took six hours. By the time I was done, I had no energy to reply to the extremely thoughtful comments I received in relationship to More about AG Holder as an ostrich. I feel better this morning, so I will use this post to reply to the comments and, more importantly, concentrate on the 16 other social science variables specified by Dr. Oleson to get at the issue of a defendant’s likelihood to reoffend.

Let’s face it friends, “race” is low-hanging fruit. It is too easy to attack, although the social science data on race when used as a predictive metric for sentencing is not really about genetics (“race”) as a causative factor in crime. It is about being correlated with crime, and there is a huge difference between the two (causation and correlation). But the word “race” is too freighted with the notion of “discrimination,” so let’s just agree for the sake of argument that empirical data on “race” will never be used at sentencing.

OK. But what about the other social science predictors? Things like gender. Or socio-economic background. The things that our delicate AG Holder seemed so frightened about.

Dr. Oleson’s complete list, with the exception of race, is set out below together with the page of his second article (attached to yesterday’s post) where the discussion about the variable is found initially:

1. Criminal Companions ……………………….. 1353
2. Criminogenic Needs …………………………. 1354
3. Antisocial Personality ……………………….. 1354
4. Adult Criminal History ………………………. 1355
5. Race .……………………………………… 1356
6. Pre-Adult Antisocial Behavior ………………… 1359
7. Family Rearing Practices …………………….. 1359
8. Social Achievement ………………………….. 1360
9. Interpersonal Conflict ……………………….. 1361
10. Current Age ………………………………… 1361
11. Substance Abuse ……………………………. 1362
12. Family Structure …………………………….. 1363
13. Intellectual Functioning ………………………. 1364
14. Family Criminality ………………………….. 1365
15. Gender …………………………………….. 1365
16. Socio-Economic Status of Origin ……………… 1366
17. Personal Distresss …………………………… 1366

Why shouldn’t a federal judge take these 16 other variables into account when deciding what sentence to impose, particularly when the judge is trying to reduce the federal prison population be selecting out the “non-violent?” Go ahead, make my day!

RGK

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.

RGK

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

 

%d bloggers like this: