One of the most enriching aspects of this blogging gig for me has been the opportunity to correspond with some brilliant people who are also motivated to do good. I count J.C. Oleson among those folks. Last evening I received an e-mail from Dr. Oleson. I was struck by how thoughtful it was, and asked if I could post it. He gave me permission to do so. Here it is:
Dear Judge Kopf,
Thank you for your email, and for the link. Your postings have been interesting, thoughtful, and provocative, and the comments have been terrific. I liked Peter H’s comment about the 1866 Civil Rights Act, and have thought a bit about how far the prohibition extends. Obviously, you cannot have one set of penalties for one racial group and another set for another racial group, but I wonder if it would really be an obstacle if race was part of a multi-factor risk assessment. The whole point of my article “Risk in Sentencing” was to suggest that actuarial approaches are so attractive that EVEN RACE might be permissible. And if race can be permitted in, then everything else follows. I don’t honestly think that the Supreme Court would – or should – condone sentencing disparities based on race data – but the point is that it COULD (holding community safety to be a compelling state interest). Of course, even if “race” is NOT permitted in, and even if gender/sex is not permitted in, many of our standard considerations (e.g., education, work history, socioeconomic class, community ties) that correlate with race and gender might very well be permitted. Once you really begin to scrutinize the idea of a sentencing “fact” and to consider the linkages between the fact and the sentencing decision, it becomes epistemologically very complicated. I think that’s what I like about your postings and the comments – there seems to be a recognition that this is a problem that is already with us, and affords no simple solutions.
· These variables highlight an incommensurable tension between utilitarian and deontological bases of punishment – being poor may exculpate Jean Valjean under just deserts but it also predicts greater risk of offending and recidivism – federal judges, simultanenously trying to punish both past and future crimes under 3553(a) are left without a compass
· People dislike the “sentence-o-matic 1000” but rejecting algorithms and automation does not prevent assessments of risk – it just means that the human estimates are likely to be more idiosyncratic and less accurate
· People are more receptive to using these variables in mitigation, but this may be a case of wanting one’s cake and eating it too – if the variables can exculpate, how is it that they do not also demonstrate blame?
· People are more receptive to using risk instruments at the back end of sentencing (parole, probation conditions) but why should we be more comfortable with that than with sentencing? Many offenders would prefer prison to highly restrictive intensive supervision probation – it’s not a case that sentencing is “serious” while community corrections decisions are inconsequential
The problem of whether to use this data (how much, and in what form) is already here. The AG’s remarks and the work on the MPC provisions underscore the importance of the question. It’s wonderful to see this discussion on your blog (which I have now bookmarked) and it may be a question for the Judicial Conference and the Sentencing Commission to study.
With very best wishes,
J.C. Oleson, Senior Lecturer in Criminology
Director Research, School of Social Sciences
Book Review Editor, Australian & New Zealand Journal of Criminology
Sociology, University of Auckland
So, dear readers, what do you think?