The national trend toward evidence-based sentencing, in which courts use data-driven predictions of defendants' future crime risk to shape sentences, is liable to lead to longer sentences for minorities and the poor, University of Michigan law professor Sonja B. Starr writes in a New York Times op-ed. At least 20 states have implemented this practice, and many more are considering it. But risk scores are based largely not on the crime in question but on prior crimes and biographical details, including employment and marital status, age, education, finances, neighborhood, and family background, including family members' criminal history.
While well intentioned, this approach is misguided, Starr writes. Punishment profiling will exacerbate racial disparities because the risk assessments include many race-correlated variables. Profiling sends the toxic message that the state considers certain groups of people dangerous based on their identity. It also confirms the widespread impression that the criminal justice system is rigged against the poor. Evidence-based sentencing also raises serious constitutional concerns. The Supreme Court has consistently held that otherwise-impermissible discrimination cannot be justified by statistical generalizations about groups.