The U.S. Constitution requires due process before a criminal defendant can be deprived of life, liberty, or the pursuit of happiness. It is also a fundamental tenet of the U.S. justice system that defendants cannot be prosecuted for things they might do or for things they think about doing- which is why even charges of attempted crimes require at least one overt action in furtherance of the wrongful act.
Despite these basic long-standing principles of the justice system in the United States, there is now a move forwards basing criminal sentences on the likelihood of a defendant committing future crimes. Five Thirty Eight reported on the new sentencing tool judges will be getting in one state as early as next year, which allows them to predict the likelihood of a re-offense when determining what a defendant’s criminal penalties should be.
Risk Assessments in Prison Sentencing
Risk assessments have existed for more than a century, but advances in social science have resulted in increased reliance on these assessments in the US justice system in recent years. Social scientists have developed models and tools designed to try to predict recidivism by using factors such as employment history, age, and past criminal records. These models are used in some part of the criminal justice process in almost every state. Most commonly, for example, risk assessments are used to help set bail for criminal defendants awaiting trial and to help determine if a prisoner should be released on parole.
While risk assessments are widely accepted, states have largely resisted using them in one particular area: the decision on what criminal sentence a defendant will face after he is convicted. Pennsylvania, however, is about to become the first state to apply statistical models for assessing risk of future crimes in its sentencing guidelines. Pennsylvania hopes that using this model will help the state to address problems with its expensive and unwieldy corrections system, which costs more than $2 billion each year (or seven percent of the state’s budget).
While some supporters indicate the risk assessment tools could lead to shorter sentences for people who are less likely to reoffend, the problem is the reverse is true as well. Someone could face a longer prison sentence because a model created by academics says he is more likely to re-offend, regardless of whether that particular individual is actually going to go out and commit more crimes or is committed to reforming his life.
Past behaviors of other defendants may be a poor predictor of what a particular individual is going to do in his specific case, and people should not be punished for things they have not yet done. Former attorney general Eric Holder criticized the use of risk assessment tools in the sentencing phase, suggesting they could “exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in society.”
The incarceration rate in PA is almost exactly the same as the national average incarceration rate, and many jurisdictions throughout the U.S. face overcrowding in prison populations as well as high costs associated with keeping people incarcerated. If risk assessments are adopted and prove effective in the state of Pennsylvania, other states are likely to jump on the bandwagon quickly and follow PA’s lead in employing statistical tools in the sentencing phase to determine who is most likely to reoffend.
Defendants who are charged with criminal offenses who are likely to show up as statistically more likely to reoffend will need to make sure they get the very best criminal defense lawyer to argue against conviction and to help them in the sentencing phase if these risk-assessment models catch on and become a standard tool in sentencing.
