Yesterday, I posted “Like the ostrich that buries its head in the sand, Mr. Holder is wrong about data-driven sentencing.” Today, Scott Greenfield at Simple Justice has posted a rejoinder entitled “Numbers don’t lie (But People Do). Scott makes excellent points about reliance at sentencing on social science data if used to predict future violence. Read Scott’s post.
I add the following more as a clarification than anything else:
I am not terribly wound up by the idea that I am under pending reforms supposed to reduce the number of offenders in federal prison by trying to determine at sentencing which are likely to be violent when released and which are not likely to be violent upon release. Indeed, if you read the Rorschach test of sentencing, that is 18 U.S.C. § 3553(a), you will struggle to find a directive that I ought to look at prison overcrowding and the cost to the federal fisc. That “little” problem aside, I am not at all sure that I am competent to read, understand and apply the relevant social science data that would allow me to rationally determine the risk of future violence. But if Attorney General Holder wants federal judges to be seriously sensitive to the issue of future violence and prison overcrowding he is, in my opinion, being obtuse or disingenuous when he suggests that we ignore mounting social science data that rely upon “immutable characteristics” and other factors (like socio-economic information*) that make the rest of us twitchy about issues of race, gender, age and poverty. The Attorney General should not be allowed to have his cake and eat it too by suggesting we ignore the uncomfortable.
*Philadelphia is highly segregated. Yet the successful prediction instrument, with a 66% accuracy rate, developed in the City of Brotherly Love uses zip codes as a scoring factor. See Nancy Ritter, Office of Justice Programs, National Institute of Justice, Predicting Recidivism Risk: New Tool in Philadelphia Shows Great Promise (February, 2013).