Insightful comments from J.C. Oleson about using empirical research on risk to reoffend at sentencing

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,

Jim

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?

RGK

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

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