Criminals Sentenced for Crimes They Haven't Committed (Yet)

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By Christopher Coble, Esq. on August 10, 2015 11:38 AM

Potential uses for risk assessment tools can sound like something out of Tom Cruise's "Minority Report": the tools can potentially punish people based on crimes they may commit in the future. But using risk assessments to aid in sentencing isn't quite as extreme as arresting people based on the predictions of three psychic children.

So how do risk assessments work, and how are they used in criminal sentencing?

Risk Assessment Tools

FiveThirtyEight reported on risk assessments last week: "The tools try to predict recidivism -- repeat offending or breaking the rules of probation or parole -- using statistical probabilities based on factors such as age, employment history and prior criminal record."

Risk assessment tools vary, but they generally involve questionnaires that use demographic, familial, and criminal factors to assign scores "based on statistical probabilities derived from previous offenders' behavior." Just about every state uses them in some fashion, normally to set bail, parole, and probation conditions.

Risk Assessments for Criminal Sentencing

Pennsylvania is currently considering using risk assessments when determining a person's sentence following a criminal conviction. While this may sounds like a recipe for offenders getting longer jail sentences based on a belief that they'll commit another crime in the future, the state plan "could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely."

Pros/Cons

Risk assessments seem like a good solution to the problems that mandatory minimum sentencing and "three-strike laws" can create -- they can take personal circumstances into account, and craft a sentence more appropriate to the offender, rather than assigned disproportionately harsh sentences of low-risk people. But risk assessments themselves can be problematic.

Aside from the obvious problems of obtaining reliable statistical information and the accuracy of predictive models, risk assessments could ingrain the very biases a more personalized approach is meant to ignore. As former Attorney General Eric Holder noted, "By basing sentencing decisions on static factors and immutable characteristics -- like the defendant's education level, socioeconomic background, or neighborhood -- they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society."

Pennsylvania's plan has yet to go into effect, and we could be years away from knowing whether and how it impacts criminal sentencing. Hopefully we're a long way off from being thrown in jail before we ever commit a crime.

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