Pennsylvania Becomes First State To Use "Pre-Crime" Statistics In Criminal Sentencing

Criminal sentencing has long been based on the present crime and, sometimes, the defendant’s past criminal record. In Pennsylvania, judges could soon consider a new dimension: the future.

 

Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes. As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.

 

Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science. 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. They are now used at some stage of the criminal justice process in nearly every state. Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail [9] for inmates awaiting trial.

 

But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself. A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely. Those deemed high risk could spend more time behind bars.

 

There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.

 

The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose? 

 

Even some supporters of risk assessment in bail and parole worry that using the tools for sentencing carries echoes of “Minority Report”: locking people up for crimes they might commit in the future. In a speech to the National Association of Criminal Defense Lawyers [10] last August, then-Attorney General Eric Holder said risk assessment tools can be useful in directing offenders toward rehabilitative programs, allowing them to shorten their prison sentences. But he criticized the use of such tools at the sentencing phase. “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,” he said.

Wow, I actually agree with Eric Holder for once. For him to take such a decent position, it must mean bank profits aren’t threatened.

Fosque’s objection underscores one of the central questions in the risk assessment debate: Is it fair to look at the behavior of a group when deciding the fate of an individual? Statistics, after all, can’t say whether Fosque will commit another crime, and he believes he’s doing everything possible to avoid further run-ins with the law.

 

There is little question that well-designed risk assessment tools “work,” in that they predict behavior better than unaided expert opinion. Over the past several decades, dozens of social scientific studies [11] have been published comparing [12] professional predictions of risk to predictions made by statistics. When implemented correctly, whether in the fields of medicine, finance or criminal justice [13], statistical actuarial tools are accurate at predicting human behavior — about 10 percent more accurate than experts assessing without the assistance of such a tool, according to a 2000 paper [14] by a team of psychologists at the University of Minnesota.

But to critics, just because a trait predicts crime doesn’t mean it’s fair to use it in sentencing decisions. Pennsylvania’s proposed tool will take into account factors like sex and age that are beyond an individual’s control. It will also include a question on where offenders live and, in some cases, penalize residents of urban areas, who are far more likely to be black.

Perhaps most controversially, the Sentencing Commission’s draft assessment tool will factor in an individual’s history of arrests, not just convictions. Even using convictions is potentially problematic; blacks are more likely than whites to be convicted of marijuana possession, for example, even though they use the drug at rates equivalent to whites [15]. But arrests are even more racially skewed [16] than convictions, and public defender groups in Pennsylvania think their use to determine sentencing may be unconstitutional.

Sad.

Based on the work the commission has done so far, Bergstrom says he’s leaning toward using the tool to identify outliers — low-risk individuals to defer from prison altogether and high-risk individuals to flag for extra time or treatment. That would be a fairly limited approach, but it wouldn’t avoid the central question of whether offenders should spend more time behind bars simply because of how statistical tools say they will behave in the future.

Reading the above made me think of an article I have been meaning to write about for several weeks. It was written by Zoltan Istvan, a so-called “futurist” and presidential candidate for the Transhumanist Party, and published at [18]Motherboard [18]. Here are a few excerpts:

The death penalty is one of America’s most contentious issues. Critics complain that capital punishment is inhumane, pointing out how some executions have failed to quickly kill criminals (and instead tortured them). Supporters of the death penalty fire back saying capital punishment deters violent crime in society and serves justice to wronged victims. Complicating the matter is that political, ethnic, and religious lines don’t easily distinguish death penalty advocates from its critics. In fact, only 31 states even allow capital punishment [19], so America is largely divided on the issue.

 

Regardless of the debate—which shows no signs of easing as we head into the 2016 elections—I think technology will change the entire conversation in the next 10 to 20 years, rendering many of the most potent issues obsolete.

 

For example, it’s likely we will have cranial implants in two decades time that will be able to send signals to our brains that manipulate our behaviors. Those implants will be able to control out-of-control tempers and violent actions—and maybe even unsavory thoughts. This type of tech raises the obvious question: Instead of killing someone who has committed a terrible crime, should we instead alter their brain and the way it functions to make them a better person?

Where to begin. Anyone who thinks this is a good idea, or a “solution,” is either incredibly naive or a certified statist control-freak. In the case of Zoltan, I think he’s probably both.

First of all, since the state will be administering these lobotomies, they will have to come up with definitions for “unsavory thoughts.” They also will have a monopoly on deciding what characterizes a “better person.” In the name of fighting “unsavory thoughts” and making people “better,” the government can go in and change your entire brain. This is a solution? No, this is a dystopian nightmare only a complete statist could support.

Moving along…

Recently, the commercially available Thync [20] device made headlines for being able to alter our moods. Additionally, nearly a half million people already have implants in their heads, most to overcome deafness, but some to help with Alzheimer’s or epilepsy. So the technology to change behavior and alter the brain isn’t science fiction. The science, in some ways, is already here—and certainly poised to grow, especially with Obama’s $3 billion dollar BRAIN initiative, of which $70 million went to DARPA [21], partially for cranial implant research.

 

Some people may complain that implants are too invasive and extreme. But similar outcomes—especially in altering criminal’s minds to better fit society’s goals—may be accomplished by genetic engineering, nanotechnology, or even super drugs. In fact, many criminals are already given powerful drugs, which make them quite different that they might be without them. After all, some people—including myself—believe much violent crime is a version of mental disease.

To better fit society’s goals? Who do you think will be determining “society’s goals” Zoltan? The people? I think not. It will be decided by a handful of oligarchs who will be able to choose who gets their brains carved up. If anyone has mental disease it might be you.

With so much scientific possibility on the near-term horizon of changing someone’s criminal behavior and attitudes, the real debate society may end up having soon is not whether to execute people, but whether society should advocate for cerebral reconditioning of criminals—in other words, a lobotomy.

 

One other method that could be considered for death row criminals is cryonics. The movie Minority Report [22], which features precogs who can see crime activity in the future, show other ways violent criminals are dealt with: namely a form of suspended animation where criminals [23] dream out their lives. So the concept isn’t unheard of. With this in mind, maybe violent criminals even today should legally be given the option for cryonics, to be returned to a living state in the future where the reconditioning of the brain and new preventative technology—such as ubiquitous surveillance—means they could no longer commit violent acts.

He seems to think ubiquitous surveillance is a great thing. As I said before, the only one here with a truly dangerous mental disease seems to be Zoltan. That disease is statism.

Remember this article? Florida Man Sentenced to 2.5 Years in Jail for Having Sex on the Beach [24].

Seems like he’d be a great candidate for a Zoltan administered lobotomy to remedy his “unsavory thoughts.”

Or what about this one? Bilderberg 2015 – Where Criminals Mingle with Politicians [25].

I think it’s safe to assume that the Bilderbergers would escape the brain knife.

What complete stupidity.