Should prison sentences be based on crimes that have not been committed yet?
That’s the question several recent news articles have been posing. One such article highlighted how in Pennsylvania, judges could soon consider a new dimension when it comes to sentencing: the future. The article describes how judges may start using statistical assessments of the probability of recidivism in the sentencing process.
The idea of basing a criminal sentence on the likelihood of future criminality is nothing new. That practice is known as selective incapacitation, which is an attempt to identify those most likely to reoffend and give them longer prison sentences. That is typically what judges do when they consider an offender’s prior crimes, which are an important, though imperfect, predictor of future crime.
Rather than focusing on the narrower question of whether judges should use risk assessments to determine punishment, I believe we should ask a broader question — what information, including but not limited to risk assessment, should be used in the sentencing process, and who should be involved in determining the sentence?
Criminal sentencing in the U.S., whether based on statistical probabilities or judicial discretion, has essentially been a harm-based system of punishment, with unremitting emphasis on severity, proportionality (the punishment fits the crime), and risk. The punishment-focused system that we created during the past 50 years is how we got to the point of spending hundreds of billions of dollars to achieve an 80 percent recidivism rate.
That is not an impressive return on investment.
We should reserve incarceration for those we truly fear — violent offenders and those for whom we have little hope for rehabilitation such as chronic habitual offenders. And although risk should be a consideration for some offenders, it is inappropriate as a wholesale policy of sentencing.
Rather, the evidence-based path to an effective criminal justice system — one that actually reduces crime, recidivism, victimization and cost — is one that balances risk-based sentences of incapacitation and need-based diversion.
We have put a substantial amount of effort in determining how bad offenders are. We have put relatively little effort in understanding why criminals do what they do.
Eighty percent of offenders have substance abuse problems, and 40 percent are mentally ill. About 60 percent of prison inmates have had at least one traumatic brain injury, which is implicated in a variety of neurocognitive disabilities such as impulse control, aggression, learning impairments, problems understanding and processing information, and compromised executive functioning, such as lack of ability to plan, organize and problem solve.
Without knowing what characteristics particular offenders bring into the justice system, we cannot implement interventions that the evidence indicates can substantially alter these problems and reduce the likelihood of reoffending.
Effective sentencing should be collaborative, involving a variety of relevant experts in assessment and sentencing decisions. Judges are lawyers, trained in criminal jurisprudence, charged with assuring due process. They are not trained in the complexities of human behavior. Therefore, they should not be the sole voices in sentencing decisions.
Judges should collaborate with experts from a variety of disciplines as appropriate — psychologists, addiction specialists, neuroscientists, psychiatrists and vocational, occupational and educational specialists — to problem solve and develop a supervision and intervention plan.
A reasonable comparison is what occurs in drug courts.
Drug courts are effective at reducing substance abuse and recidivism. The judge oversees a process that involves a team of experts engaging in problem solving, setting expectations, compiling assessment information, developing and implementing an intervention and supervision management plan, and dealing with noncompliance and reoffending. And they are much more cost efficient than punishment alone. However, although there are approximately 3,000 drug courts in the U.S., the capacity of these courts is sufficient to address only about 10 percent of the need.
An over-emphasis on risk keeps us on a path of punishment, incapacitation and failure in the business of reducing reoffending. The research indicates that an effective criminal justice system is one that involves assessing risk, but also the situational, physical, behavioral, cognitive and psychiatric problems of offenders. In turn, the goal is the mitigation of those problems, deficits and impairments. It’s time to change the way we sentence offenders.
William R. Kelly is professor of sociology at The University of Texas at Austin. His most recent book “Criminal Justice at the Crossroads: Transforming Crime and Punishment,” published by Columbia University Press in May 2015, presents a road map for extensive reform of the American criminal justice system.
A version of this op-ed appeared in the San Antonio Express News.
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