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.) 

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  1. We’ve been doing pre-crime for a long time.

    Exhibit A: DWI/DUI. No accident needed, no violation of any moving vehicle laws, nothing. These laws are based solely on the risk that something bad may happen at some point in the future.

    And there’s a million of them out there.

    1. You can throw the drug possession convictions in there as well.

    2. DUI is a vastly different from drug laws since the drunk driver poses a threat to innocent parties, and there is a good bit of evidence regarding that.

      1. there is a good bit of evidence regarding that

        You cannot prove that a particular driver under the influence is going to harm anyone. The “evidence” is statistical, and thus DUI is pre-crime, not crime.

      2. the drunk driver poses a threat to innocent parties

        Which, I believe, is exactly the argument for pre-emptive policing based on the odds of re-offending.

        A “threat” in the sense you use is nothing more than an increased likelihood that someone else could get hurt. Exactly what the pre-crime project is based on.

    3. So if I start shooting at you, you can’t do anything to defend yourself until I actually hit you?

      1. Exactly, Stormy.

        There’s no difference, none at all, between trying to shoot someone and missing, and sitting in your car in a parking lot with a .08 BAC.

      2. Is there a rash of people getting drunk and intentionally driving into other people’s cars with the intent to harm them?

      3. Oh Stormy, you must revel in being an idiot.

    4. Not only that, but car insurance rates are determined on the basis of a combination of immutable and geographic factors.

  2. Agreeing with anything Eric Holder says makes me feel dirty. Like weekend with Warty dirty.

    1. Just imagine how horrific this must actually be for even Holder to be against it.

      1. It seems pretty clear that Holder is against it because it may impact blacks disproportionately. He’d be leading the charge for a well-funded Corporate Precrime Unit.

        1. Seems about right.

        2. Exactly.

        3. Holder is just looking after His People.

    2. You’re also agreeing with MHP apparently. Now how do you feel?

      1. I don’t actually know anything about her so…whatever?

        1. I would say go read up on her, but I wouldn’t want to ruin your day.

          1. I probably wouldn’t anyway. I can’t imagine anything less relevant than a cable news/chat show.

    3. Incidentally, the only reason that he’s all of a sudden adopting a civil libertarian position is because he knows who actuarial pre-crime tables will overwhelmingly single out.

      It’s just bullshit collectivist identity politics for him (while admittedly the policy itself is bullshit collectivist micromanagement). Not to be confused with any actual civil libertarian inklings.

    4. Don’t worry, you know he only meant that we should reserve pre-crime profiling for the right people, like conservatives and libertarians and other dangerous anti-fascist lunatics.

    5. I thought the same thing. But, he’s just protecting the New Black Panthers.

      He’d be all for castrating white male volley ball team members in advance of them hiring a black stripper.

  3. It’s not hard to understand the surface appeal of such tools to policymakers. It looks reasonable. It feels scientific.

    It is therefore neither.

    1. My friend’s term for this sort of thing is scientifical.

  4. Why not bring back phrenology?

    1. Why, this man has the zygomatic arch of a pederast! Shackle him immediately.

      1. But, but, but… He’s a priest!

      2. Why are you feeling Harry Reid’s skull?

        1. Hey, 50 bucks is 50 bucks.

  5. Well, he talks a good game. It’s a shame he’s such a hypocrite.

  6. If you follow the “forward-looking utilitarian” logic of the idea to its ugly end, then it’s all too easy to imagine

    The path that America has been haphazardly gamboling down for the past century or so?

    1. Precautionary Principle

  7. we need to be sure the use of aggregate data analysis won’t have unintended consequences.

    As if you’d need to ask.

    1. Oh, they won’t be unintended consequences, I can assure you of that.

  8. OT: It turns out that rape culture infects everything

    I have to confess that Say Anything is one of my favorite movies. But the film’s most memorable scene is actaully rather cringe worthy.

    When John Cusack’s character, Lloyd Dobler, shows up at Diane Court’s house in the middle of the night, boombox in hand, it’s not romantic. In fact, it’s stalking.

    1. Well sure, if everything is rape, then rape culture is everywhere. QED!

  9. mega-monocle is correct. And I’ll go further. While we all likely agree with Suderman’s basic position, I don’t see how we can escape the trap of sentencing criminals based on expected future conduct. If we prevent courts from using statistical, “actuarial” tools, these sentencing bodies will not abandon the practice. Rather, they will simply resort to their “experience and intuition” when deciding which particular convicts present the greatest dangers to society. Moreover, the sentences proscribed in our laws do not just relate to the severity of a given offense; the sentences’ statutory ranges reflect our collective wisdom on which type (which class & kind) of criminals should be locked up in perpetuity and which crooks should be let out after a short stint. Consult the legislative record if you’re curious.

    It is amusing to see Holder oppose the police state in this one specific instance. It is not difficult to see why he (correctly) smells danger here while believing other cases of federal law enforcement overreach smell of naught but roses.

    1. Holder is not opposing the police state, per se, he’s opposing the foreseeable possibility that blacks will be affected far more than whites. It’s Eric Holder; let’s not accuse him of being some great jurist.

  10. But isn’t the “imminent threat” justification exactly what Holder’s office used in the assassinations of Anwar al-Awlaki and his teenage son? How is that different from precrime?

    1. Precrime uses actual data. Drone strikes derive from the “people who need-a-killin” school of thought.

  11. So we oppose statutory minimum sentences. We oppose allowing judges to make sentencing determinations based on statistics. We oppose judges deciding sentences arbitrarily and meting out uneven justice. And we oppose leaving sentencing in the hands of vindictive juries. I’d sure love to be a criminal in libertopia.

    1. I have to agree with this. Even in libertopia there will be crime. How do you determine sentencing. Have a bright line one size fits all sentencing for each crime? Possibly but what about extenuating circumstances and draconion punishments for certain crimes that make a mockery of mandatory minimum sentences.The fact is the while most people are detered by jail. A few are not. 3 strikes laws was intended for those people. This is another way.

    2. I’d sure love to be a criminal in libertopia.

      Since crimes in libertopia would be limited mostly to the sorts of activities that people are allowed to shoot you for, I suspect your criminal career would be pretty short.

      1. You generally can’t shoot people for purely property crimes.

        1. Yeah, you can’t just go around murdering people in cold blood if you think they’ve stolen from you, but if you catch a robber in the act and he refuses to surrender, I’m not sure how you shooting him on the scene is so much worse than the cops finding him later and shooting him.

      2. I don’t think very many of us here, including the ancaps, would be okay with shooting people for things like theft, fraud, domestic abuse, child abuse, reckless endangerment, criminal negligence, etc. And even if we were, it’d still be helpful to have some third party take a look at the circumstances surrounding each case of self-defensive homicide to make sure they weren’t, in reality, murder. Besides of which, even in libertopia I would probably have a good selection of potential victims for my theoretical crimes who aren’t gun owners. “Tough shit, should have bought a gun” might be kind of cold comfort to the rape victim or the armed robbery victim.

        Not everyone supports the concept of a criminal justice system (the aforementioned ancaps, for example, support only civil courts, and then only private ones with no power to enforce their rulings except by mutual consent of the parties) but if you do, you kind of have to have sentences for crimes. If you literally oppose every possible scheme for sentencing criminals, the practical implications is that you must oppose criminal justice.

        1. Don’t mistake that for a defense on my part of the sentencing rubrics being used in these cases. Although I do see how statistical data might be useful in constructing sentences (high recidivism rates for certain types of crimes might mean that a longer sentence for people who commit them is warranted, for example). I’m more in favor of a more individualized approach where a judge can look at the facts of a case, the finding of the jury, the history of the accused, and make a determination on that basis. But then, like I said, that results in seemingly arbitrary sentencing for similar crimes, and Reason loses its collective shit over that as well.

  12. In the end, race was explicitly excluded from the model, but in the initial analysis, it was “strongly significant” as a factor. …

    (It’s worth noting that there’s already some evidence that, intentionally or not, prosecutors end up offering harsher plea deals to minorities.)

    And there’s some evidence, presented in this very blog post, that they’re correct to do so.

  13. I’m failing to see the problem with this. If the purpose of prisons is to keep dangerous people out of society, and the laws prescribe sentences as ranges, isn’t it the most prudent thing to do to base the sentence within the range based on the offenders likelihood to re-offend?

    1. Funny, I thought prison sentences were intended mainly to be punishments for crimes actually committed.

      Jailing people based on the possibility that they may do Something Bad in the future strikes me as starting down a very dangerous road.

      1. Then why create ranges for sentencing?

        Prison sentences should be intended to be punishments, they should be a mechanism to keep dangerous people out of society.

        Dangerous people commit crimes – that’s how we identify them – and then we remove them from society. If suddenly tomorrow murder were legalized, and everything else stayed relatively the same, you’d have around the same amount of murders as you do now, and they’d be committed by the same people. We’d just lack a mechanism to identify those people and separate them from the rest of us.

        1. Then why create ranges for sentencing?

          Because not all crimes are the same? There are variations within the category of “robbery” and even “murder” such that someone convicted of the same statutory crime may merit a harsher or lesser penalty than someone else.

          The notion that we impose penalties on criminals to prevent criminals from re-offending has led to such abominations as permanent loss of civil rights, sex offender lists, and so forth.

    2. Granting that you’re correct re: sentencing, why should we trust an actuarial model over judges discretion? Consider that race was a “strongly significant” factor in the model. Isn’t it (a billion times) better for judges to assess defendants independently and *on average* give longer sentences to blacks than to lengthen the sentence for all blacks by X%?

      1. If you were a judge, wouldn’t you want to see the actuarial report? Sure, there will always be intangibles that should and must be considered, but given that judges don’t know these people personally, you’d think they’d want to know what the likelihoods are based on the actual behavior of similar people.

        1. I’ve changed my mind after reading that vera link. I fall for Reason’s half-assed reporting and proggy sensibilities way too often.

          in Virginia, a state with a determinate sentencing struc

          ture, actuarial risk has been used to identify the lowest risk
          offenders since 2004. By identifying “25% of the lowest
          risk, incarceration-bound, drug and property offenders for
          placement in alternative (non-prison) sanc
          tions, the state
          was able to, even after increasing the number of offenders
          targeted for noncustodial sanctions, decrease prison popu

          lations . . . without a significant increase in risk to public
          safety.”

          The Horror

  14. Precrime is exactly how the NSA operates.

  15. Google has been working with the DoJ on this sort of macro collection of data to point in certain directions.

    It isn’t a stretch to say in five years this sort of ‘1000 statements in various emails’ all pointing to a perception of guilt and this being used to get a conviction where the evidence doesn’t warrant it.

    It is already being used by lefties in social media to ruin people’s lives. Why stop there?

  16. Eric Holder is a criminal. He’s only interested in this because he thinks more blacks will be profiled.

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