Considering future risk at sentencing unfair, Holder asserts
In 2010, then Pennsylvania Gov. Edward G. Rendell signed into law a mandate that the Pennsylvania Commission on Sentencing develop a risk-assessment instrument for use by judges in sentencing criminal offenders. The law was touted at the time as being able to identify criminals who are “at a lower risk to re-offend and who may be recommended for alternative sentencing programs instead of additional prison time.”
Development of the risk- assessment tool has been slow. And now, the concept of linking risk assessments and sentencing has a pretty important foe — U.S. Attorney General Eric Holder.
In a recent speech, Holder singled out Pennsylvania when he said, “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.”
Pennsylvania’s law provides, “The risk-assessment instrument may be used as an aid in evaluating the relative risk that an offender will re-offend and be a threat to public safety.”
Risk assessments are not entirely new to the Pennsylvania criminal justice system. The Board of Probation and Parole has long used an actuarial risk-assessment tool for parole decisions.
University of Pennsylvania Professor Richard Berk created a risk-assessment model for the Philadelphia Adult Probation and Parole Department.The model examined more than 24 variables such as criminal history, age, gender, type of crime and where the crime was committed.
Through powerful computer analysis, Berk found a subset of people much more likely to commit homicide when released from prison and a subset of offenders who were least likely to re-offend. However, Berk warned such forecasting is “like trying to find the needle in the haystack.”
A handful of states now uses some form of risk assessment for sentencing. Florida uses a risk-assessment instrument for prison diversion programs. Illinois has authorized development of risk assessment for sentencing. Tennessee is including a risk-assessment tool in its pre-sentence reports. Washington is using risk assessment for purposes of placement in residential drug treatment. North Carolina is considering risk assessment when imposing community-based punishment.
Holder further noted, “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.”
Virginia has used risk assessment analysis at sentencing since 1994. In fact, for many years Virginia was the only state using risk information at the time of sentencing.
Virginia’s sentencing scheme was not just about diverting nonviolent low-risk offenders. It was also about “incapacitating” high-risk offenders. In the process of creating new sentence guidelines, the sentencing commission studied thousands of prison terms and determined the actual time served for specific offenses and then set sentence ranges based on those findings.
The late Dr. Richard Kern, former director of the Virginia Criminal Sentencing Commission, once suggested that a risk-assessment tool must weed out those offenders “who we are afraid of” from those “we were just ticked-off at.” For those feared, longer prison sentences are needed. For those that merely annoyed, diversion to alternative punishment.
The idea of sentencing defendants based on risk factors may help to reduce the prison population, but in certain circumstances it may run the risk of imposing drastically different punishments for the same crimes, said Holder.
Holder may be passionate about his position, but his position also appears to be at odds with the Congress. In the House, The Public Safety Enhancement Act of 2013 proposes to use risk- assessment tools to reduce recidivism, lower the crime rate, and reduce the amount of money spent on the federal prison system. The Senate is considering a bill to incorporate predictive analysis into determining eligibility for sentencing credit.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)