The NY Times published an op-ed on a controversy over evidence-based sentencing.
Advocates of punishment profiling argue that it gives sentencing a scientific foundation, allowing better tailoring to crime-prevention goals. Many hope it can reduce incarceration by helping judges identify offenders who can safely be diverted from prison.
While well intentioned, this approach is misguided. . . .
It is naïve to assume judges will use the scores only to reduce sentences. Judges, especially elected ones, will face pressure to harshly sentence those labeled “high risk.” And even if risk scores were used only for diversion from prison, it would still be wrong to base them on wealth and demographics, reserving diversion for the relatively privileged.
. . .
Of course, judges have always considered future crime risk informally, and it’s worth considering whether actuarial methods can help make those predictions more accurate. The problem isn’t risk assessment per se; it’s basing scores on demographics and socioeconomics. Instead, scores could be based on past and present conduct, and perhaps other factors within the defendant’s control.
. . .
Criminal justice policy should be informed by data, but we should never allow the sterile language of science to obscure questions of justice. I doubt many policy makers would publicly defend the claim that people should be imprisoned longer because they are poor, for instance. Such judgments are less transparent when they are embedded in a risk score. But they are no more defensible.
I hear an interesting echo from recent arguments about the evidence for the treatment models developed for addicted health professionals, pilots and lawyers. Professionals treated with this model have outstanding outcomes. You’d think this would be welcomed, especially by treatment critics who question the evidence-base for much of the treatment that is being provided. But, the model is controversial. (See here, here and here.)
Why? Because the evidence is derived from programs that treat relatively affluent and culturally empowered patients. The critics believe that it couldn’t possibly work as well for poor addicts. They argue:
- That there is no evidence-base for providing the model to poor patients.
- That there is evidence that people with higher recovery capital have better outcomes.
- That these professionals have high recovery capital and poor people have low recovery capital.
- So, it’s irrational to believe the model might work for people with low recovery capital.
See this comment from the UK Advisory Council on the Misuse of Drugs second report of the recovery committee [emphasis mine]:
…our optimism about recovery should be tempered. Evidence suggests that different groups are more or less likely to achieve recovery outcomes. For some people, with high levels of recovery capital (e.g. good education, secure positive relationships, a job), recovery may be easier. For others, with little recovery capital or dependent on some types of drugs (especially heroin), recovery can be much more difficult and many will not be able to achieve substantial recovery outcomes.
So, do these critics want to build upon these programs and explore modifications that might meet the needs of poor and disadvantaged patients? No.
This question brings John Rawls and his “original position” to mind.
In the original position, the parties select principles that will determine the basic structure of the society they will live in. This choice is made from behind a veil of ignorance, which would deprive participants of information about their particular characteristics: his or her ethnicity, social status, gender and, crucially, Conception of the Good (an individual’s idea of how to lead a good life). This forces participants to select principles impartially and rationally.
We have a situation where the health professionals provide one kind of treatment to their peers and another kind of treatment to other patients. If they had to assume the original position and operate from behind the veil of ignorance–if they were to be reborn an addict of unknown class, race, gender, economic status, etc–what would they want the de facto treatment to be?
They just say they are just following the evidence. What else are they following?
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