Criminal Justice

Eric Holder Warns About America's Disturbing Attempts at Precrime

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Minority Report, 20th Century Fox

The premise of the 2002 science fiction movie Minority Report was that police in a near-future Washington, D.C. had developed an innovative system to stop crime before it happens. The system, called precrime, was based on the visions of a trio of psychics who could sense criminal activity shortly before it happened. That allowed cops to arrive on the scene and preemptively arrest offenders. It was the end of crime in the District, with criminals apprehended just before they could offend.

America doesn't quite practice precrime yet, but in several states it's edging closer. One difference between the reality and the movie is that instead of psychics we use actuaries.

States such as Pennsylvania, Virginia, and Missouri have developed programs that attempt to offer risk-assessments of offenders. Those risk assessments, which are based on a variety of factors including age, education level, and neighborhood of residence as well as past criminality, are meant to guide judges in sentencing. The explicit goal is to reduce future instances of criminality, which means that instead of sentencing people for crime already committed, sentences based on these risk assessments are instead sentencing people for crimes that they, or people like them, might commit.

In a speech last week to the National Association of Criminal Defense Lawyers (which Reason's Jacob Sullum previously noted here), Attorney General Eric Holder warned against the use of such risk assessments:

When it comes to front-end applications – such as sentencing decisions, where a handful of states are now attempting to employ this methodology – we need to be sure the use of aggregate data analysis won't have unintended consequences. 

Here in Pennsylvania and elsewhere, legislators have introduced the concept of "risk assessments" that seek to assign a probability to an individual's likelihood of committing future crimes and, based on those risk assessments, make sentencing determinations.  Although these measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice.  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.

Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct.  They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.  Equal justice can only mean individualized justice, with charges, convictions, and sentences befitting the conduct of each defendant and the particular crime he or she commits.

It's not hard to understand the surface appeal of such tools to policymakers. It looks reasonable. It feels scientific. The goal is to identify likely reoffenders and prevent them from committing a second crime. As a 2011 article in the Federal Sentencing Reporter put it, it's a shift away from the traditional "backward-looking retributive approach" toward a "formalized, forward-looking, utilitarian" goal.

But Holder is right to be concerned about what is, in effect, a kind of actuarial profiling.

It's a troubling approach. Individuals should be sentenced based on what they have done, not what they might do, and especially not what other members of some group they belong to are likely, on average, to do.

The latter issue is particularly worrying. If a risk assessment recommends longer sentences for people from a particular neighborhood, and a judge follows that recommendation, then the result is effectively to sentence an individual for what his or her neighbors have done.

Even if this approach can be shown to prevent some types or instances of crime, that's not how a criminal justice system is supposed to work. By a roughly similar logic, we could lock up everyone—or even just everyone with the right risk profile, regardless of what crimes they have or have not already committed—from a high crime neighborhood, and call it a success when crime goes down.

Indeed, the same reasoning could lead to support for explicitly race-based sentencing. As a report on Virginia's risk assessment model notes, the state sentencing commission settled on 11 different identifiers to use in determining an offender's risk profile. In the end, race was explicitly excluded from the model, but in the initial analysis, it was "strongly significant" as a factor.

If you follow the "forward-looking utilitarian" logic of the idea to its ugly end, then it's all too easy to imagine a system that explicitly singles out certain races for harsher sentences, not because of the individual particulars of the crime in question, but because of the aggregate actions of other people who share that person's race.

Now, as Virginia's guidelines also suggest, it's unlikely that any state would ever decide to make race an explicit factor. And if that did happen, it's virtually certain that the courts wouldn't let it stand. But even if race is never made an explicit factor, it could be built into the system implicitly, with non-race identifiers that have the practical effect of singling out certain races. (It's worth noting that there's already some evidence that, intentionally or not, prosecutors end up offering harsher plea deals to minorities.)

If anything, then, it's a system that could lead to something worse than the psychic-powered precrime of Minority Report. In the movie, cops targeted specific individuals who were just hours or minutes from committing a crime. Under a system that relied heavily on the sort of data-driven sentencing that Holder describes in his speech, we'd be targeting not individuals so much as large groups of people, and punishing them for what other people who they resemble have done, or might possibly do, months or years in the future. 

(This issue came up during a segment I participated in on the Melissa Harris-Perry show on MSNBC last weekend. You can watch that clip here.)