Does Va.’s Sentencing By Numbers Do Justice?


For decades, predicting future criminality has been junk science; now, the detailed collection of crime statistics is beginning to make it possible to determine which bad guys really will commit new offenses, says the New York Times. In 2002, began encouraging judges to sentence nonviolent offenders the way insurance agents write policies, based on a short list of factors with a proved relationship to future risk. If a young, jobless man is convicted of shoplifting, the state is more likely to recommend prison time than when a middle-aged, employed woman commits the same crime.

Virginia’s new sentencing method was born of a budget crunch. State sentencing commission director Richard Kern and his staff tracked 1,500 nonviolent drug, larceny and fraud offenders for three years after their release from prison. Using various factors, including a defendant’s adult and juvenile criminal records, Kern designed a 71-point scale of risk assessment as an aid for judges. “Judges make risk assessments every day,” Kern said. “Prosecutors do, too. Our model brings more equity to the process and ties the judgments being made to science.” Kern tested his model on prisoners released five years earlier and found that his ratings correctly predicted who would be reconvicted in three out of four cases. Those who say punishment should reflect blameworthiness are not pleased. “If you’re punishing people because of a bunch of factors that have nothing to do with blame, well, you’re not in the business of doing justice anymore,” said Paul Robinson, a law professor at the University of Pennsylvania. As he sees it, a woman in her 40’s who deals drugs hasn’t done anything more to deserve a break than a male dealer in his 20’s charged with the same offense. She has just gotten lucky, by falling into a group whose other members have proved a good public-safety bet.


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