Predicting risk of recidivism: Why age, race, and gender together with 14 other variables statistically correlated with crime ought to be used at sentencing.

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.)

RGK

*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.

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

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.

 

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