Op-Ed: How We Imprison the Poor For Crimes That Haven't Happened Yet

By: Hamilton Nolan

America has an incarceration crisis. We imprison a much larger percentage of our citizenry than anyone else. We need to fix this. We do not need to fix it by selectively imprisoning people for futurecrimes that have not yet occurred.

Anyone unfamiliar with the latest developments in the Orwellian depths of the U.S. justice system should take a moment to read today's New York Times op-ed by law professor Sonja B. Starr on the increasingly accepted practice of "evidence-based sentencing," a term that obscures what should plainly be called a gross ? of justice.

"Evidence-based sentencing" describes the use of data-driven "risk assessments" in the sentencing phase of criminal trials. This means that people convicted of crimes are given a "risk score" based on some formula that purports to predict what their risk is of committing more crimes in the future. Are you detecting a few possible problems with such a practice? Yes! I sincerely hope that you are! First of all, these formulas are obscure and not transparent; second of all, the formulas incorporate demographic information such as "unemployment, marital status, age, education, finances, neighborhood, and family background, including family members' criminal history" which clearly skew them against members of certain socioeconomic groups; and, most importantly, this practice condones people being sentenced more harshly based on predictions of things they haven't done yet.

Several states have already adopted these predictive metrics for sentencing. Do you know who has a problem with this? The U.S. Justice Department, which last month sent a long letter to the U.S. Sentencing Commission warning against this practice, for reasons such as this:

First, most current risk assessments... determine risk levels based on static, historical offender characteristics such as education level, employment history, family circumstances and demographic information. We think basing criminal sentences, and particularly imprisonment terms, primarily on such data — rather than the crime committed and surrounding circumstances — is a dangerous concept that will become much more concerning over time as other far reaching sociological and personal information unrelated to the crimes at issue are incorporated into risk tools. This phenomenon ultimately raises constitutional questions because of the use of group-based characteristics and suspect classifications in the analytics. Criminal accountability should be primarily about prior bad acts proven by the government before a court of law and not some future bad behavior predicted to occur by a risk assessment instrument.

Indeed it should! Here we see the United States government arguing for the radical position that prison sentences should be based on things that people actually did, rather than on predictions that a computer makes about how much more likely they are to commit crimes in the future because they are poor and their father left them when they were young. "Evidence-based sentencing" is little more than the codification of the longstanding unspoken policy that it is illegal to be poor in America. The fact that this sort of sentencing practice has already been in place as long as it has is ? outrageous.

Design an economic and political system that requires a great many people to be poor. Pass laws that are far more likely to be broken by poor people. Use a computer to dispassionately predict that poor people will probably break the law more in the future. Then sentence poor people to longer prison terms.

It's all completely fair.