Eric Holder Warns of the Risk of Using Risk Assessment Data to Determine Sentencing
By Sari Horwitz | August 1, 2014 | Washington Post
Attorney General Eric H. Holder Jr. said Friday that he opposes the use of data analysis in criminal sentencing, a practice that has been adopted by several states but that critics say could result in unfairly harsh sentences for minority defendants.
In a speech in Philadelphia to the National Association of Criminal Defense Lawyers, Holder said that while information on education levels, socioeconomic backgrounds and neighborhoods can be useful in some areas of law enforcement, he cautioned against using such data to determine prison sentences.
Sentencing decisions based on “static factors and immutable characteristics,” Holder said, “may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”
Holder also asked the U.S. Sentencing Commission, an independent agency that establishes sentencing policies for the federal courts, to study and issue policy recommendations about the use of “big data” in sentencing decisions.
“Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case and the defendant’s history of criminal conduct,” Holder said. “They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.”
Holder’s request to the commission is his latest action on criminal justice reform, an effort he launched last summer when he announced the department would no longer charge low level, nonviolent drug offenders with offenses that impose severe mandatory sentences.
Last month, the commission issued a ruling — endorsed by Holder — that will allow nearly 50,000 federal drug offenders in prison to be eligible for reduced sentences. The commission made retroactive an earlier change that had lightened potential punishments for most future drug offenders who are sentenced starting in November.
Several states, including Pennsylvania and Virginia, are now using data to conduct “risk assessments” before handing down criminal sentences. Supporters say that data about a person’s past help judges make better sentencing determinations.
The Senate Judiciary Committee has passed bipartisan legislation that would require offenders to undergo risk assessments to determine whether they present a low, medium or high risk of recidivism. The bill, introduced by Sens. John Cornyn (RTex.) and Sheldon Whitehouse (DR.I.), would also allow certain inmates to reduce their sentences through a combination of factors.
In a report to the commission, the Justice Department said basing criminal sentences on data is a “dangerous concept.”
The practice “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,” the department said.
Eric Holder Warns Of Risks In ‘Moneyballing’ Criminal Justice
Huffington Post | August 5, 2014
Attorney General Eric Holder on Friday cautioned against using data to determine the length of sentences for criminals, saying such a practice could “exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”
In a speech before the National Association of Criminal Defense Lawyers’ 57th annual meeting in Philadelphia, Holder embraced the use of data analysis in predicting where crime is likely to happen and for risk assessments on the “backend,” as when determining how best to prepare inmates to reenter society.
But Holder also warned that using “static factors and immutable characteristics, like the defendant’s education level, socioeconomic background or neighborhood” to determine the length of a person’s sentence could have unintended consequences.
“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,” Holder said. “Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant’s history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place. 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.”
Holder’s remarks coincide with a request from the Justice Department to the U.S. Sentencing Commission to study how data analysis is currently being used in sentencing, and to issue recommendations on how such analysis should be used. In a letter to the commission, the Justice Department expressed reservations about components of sentencing reform legislation pending in Congress that would base prison sentences on factors such as “education level, employment history, family circumstances and demographic information,” calling it 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.”
The letter to the commission also takes note of an “explosion in the use of data analytics to identify patterns of human behavior and experience and bring new insights to fields of nearly every kind” since the publication of Moneyball, a book by Michael Lewis about how the Oakland Athletics used statistical data to predict the future performance of baseball players. Former New Jersey Attorney General Anne Milgram first connected the term “moneyball” to the use of data analysis by the criminal justice system.
Now the nation’s fourth longest serving attorney general, Holder has worked to make criminal justice reform a key part of his legacy. In his speech, he said the nation has reached “a watershed in the debate over how to reform our sentencing laws,” and that blending the so called truth in sentencing approach, which has sought more equal sentences (but has also led to a massive growth in the prison population), and data driven analysis may offer the best approach.
“The legacy of the truth in sentencing era is the lesson that the certainty of imposing some sanction for criminal behavior can indeed change behavior. And the ‘Big Data’ movement has immense potential to make the corrections process more effective and efficient when it comes to reducing recidivism rates. A blending of these approaches may represent the best path forward,” Holder said.
Click Here for the Letter to the Sentencing Commission