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8 Purblind Justice Normative Issues in the Use of Prediction in the Criminal Justice System Mark H. Moore In the workaday world of criminal jus consider the risk that a defendant will flee (or commit additional crimes) in setting lice, predictions are commonplace (Der- we ~ , showitz, 1974:1~0, 781~46; Wilson, bait (Dawson, 1969:80; N. Morris, 1974: 1983a: 157, 1983b:2791. Moreover, they are consequential for clefendants: they affect the magnitude of the criminal lia bilities that defenclants confront. Judges Mark Moore, Guggenheim Professor of Criminal Justice Policy and Management, Harvard Univer sity, notes: "In producing this paper, I am princi pally indebted to Susan Estrich, Daniel McGillis, and William Spelman, my collaborators on the Harvard Project on Dangerous Offenders and coau thors win me of Dangerous Offenders: The Elusive Target ofJustice (Cambridge, Mass.: Harvard Ur~i versity Press, 1984). Indeed, some material on the use of predictions in sentencing and bail is repro duced here exactly as it appears in Dangerous Of fenders, and a great deal else is borrowed less directly from that analysis. I am also indebted to those on the Panel on Research on Criminal Careers who read and commented on this work, specifically, John Kaplan, Norval Morris, and James Q. Wilson. I am also greatly indebted to Andrew von Hirsch and Michael Tonry, whose sharp disagreements may have improved the quality of my arguments and whose patience in instructing me has been ex~aor dinary. Win such great assistance, it is hard to believe errors could be made. But no doubt there are many, and they are mine alone." 374 28-57; Roth and Wice, 1980; Gaynes, 1982; Blumstein et al., 1983a,b; N. Morris en cl Miller, 1985: 12) and the prospects for rehabilitation in imposing sentences. Prosecutors weigh the gravity of the threat posed by accused offenders in de- cicling how much effort to put into prepar- ing their cases and in setting the mini- mum acceptable plea bargains (Kaplan, 1965: 174; Forst and Brosi, 1977: 177- 191~. Police stucly the moclus operancli of offenders to thwart future crimes and to help them identify likely suspects in cur- rent cases (Moore et al., 1983a,b). The widespread, consequential use of predictions in the criminal justice system prompts normative questions. If the jus- tice of the system rests on the notion that punishment should be for past acts, not guesses about future behavior, it is wrong to impose criminal liabilities on the basis of predictions. It would be wrong even if the predictions were perfectly accurate. If they are inaccurate, however (as they in- evitably will be), additional objections

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PURBLIND JUSTICE come to the fore. Offenders incorrectly predicted] to commit crimes in the future wouIc] be exposed to criminal liabilities that are doubly undeservecI: once be- cause they were based on predictions rather than past creeds, and twice because the predictions were inaccurate. And, to the extent that the predictions were based on characteristics of offenders that lie out- side the ordinary purview of the criminal justice system or are imperfectly mea- sured, defendants wouIct be exposed to more intrusive investigations and greater risk of errors than would be the case if the focus of the system remainec! on past crimes. In short, predictions undermine the rigorous discipline essential to crimi- nal justice in a free society. On the other hancI, criminal justice of- ficials now rely on predictions because they seem to add to the overall justice and performance of the criminal justice sys- tem. The most obvious virtue of predic- tions is that, by focusing the attention of the system on those offenders who are most likely to commit crimes in the fu- ture, they allow the community to main- tain tolerable levels of crime with less extensive use of imprisonment than would be possible without them. Given that it is desirable to reduce criminal victimization and to be economical in the use of the state's moral and financial re- sources in cloing so, it seems clesirable to exploit the focus on dangerous offenders that predictions make possible. Many view this apparent virtue as a dangerous temptation-one that will lure the community into increasing its overall demands for security at the expense ofthe rights and liberty interests of alleged criminal offenders and, therefore, at the risk of the overall quality of justice. But even viewed from the special perspective of protecting the rights and interests of accused offenders from the community's demancis for order, the use of predictions has virtues, for predictions can justify 3~5 more lenient treatment for some offencI- ers than their acts alone wouIcl justify. If an offencler's crimes seem uncharacteris- tic (anc! therefore unlikely to be repeated in the future), the current system (which is tolerant of predictions) can be lenient. This opportunity would be denied if pre- dictions of future conduct were excluded from criminal justice decision making. Finally, if interests in individual justice and aggregate efficiency continue to mo- tivate and sanction the widespread use of predictions in the criminal justice system, it would be valuable to recognize the practice explicitly. That way, the society could guarantee that the predictions were made consistently, accurately, and use- fully rather Wan on an ad hoc basis. So, the question of whether conse- quential predictions are tolerable in our criminal justice system might not have a general answer. Some moral intuitions and ethical standards might exclude them entirely, while others would countenance them. For the ethical systems that tole- rate predictions, the particular form of the prediction may matter a great deal: some predictions may be more just than others. The central purpose of this paper is to develop moral intuitions about whether consequential predictions are tolerable in the criminal justice system, and, if they are, to establish what sorts and for what purposes. This requires an examination from several vantage points: from the per- spective of moral intuitions about the fun- damental values that animate the crimi- nal justice system and their connections to different systems of ethical theory; from an analysis of the tension between ideal standards and the implicit sanction granted to current practices by virtue of their traditional acceptability; from a de- tailed consideration of aspects of predic- tions that seem to have normative signif- icance; and from an inquiry into how the moral issues involving predictions differ

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316 at different stages of the criminal justice system. THE ANATOMY OF PREDICTION IN THE CRIMINAL JUSTICE SYSTEM To fix conceptions, it is used! to clelin- eate the basic elements of prediction in the criminal justice system. Essentially, there are four: an offense, an associated offender, a predictive rule that links char- acteristics ofthe offender to predictions of future conduct, ant! a discretionary deci- sion to be made by a criminal justice official that could be influenced by pre- dictions of future criminal activity and that affects the criminal liability of the offender. The Offense A criminal offense is central because it is the thing that occasions the interest of the criminal justice system. Without a crime, there are no decisions to be made. Not even the most enthusiastic advocates of predictions in the criminal justice system would advocate the imposition of criminal sanctions without a criminal offense. The crime is also important because it constrains the decisions that will be made. A minor offense cannot be used to justify a major intrusion into the offencl- er's life even if the predictions are very ominous. Exactly how tightly the charac- teristics of the crime should bind the decisions of criminal justice officials is one of the major controversies surround- ing the use of predictions. Those who think that the justice of the system rests entirely on proportional and consistent responses to criminal acts seek to bind the decisions very closely to the act ant! to leave little room for consideration of the offender's characteristics and predictions of his or her future concluct (von Hirsch, 19851. Those who think that the overall CRIMINAL CAREERS AND CAREER CRIMINALS justice of the system requires some con- sideration ofthe character and future con- cluct of the offender will leave more room for these aspects to be considered in crim- inal justice decision making (Monahan, 1982~. But no one thinks that the nature of the offense is irrelevant to the decisions of criminal justice officials. Obviously, the offenses can vary along many dimensions. One is the gravity of the offense. It can be murder or petit larceny. It can involve serious injury to victims, threats of serious injury, or only minor property Tosses. A second is the certainty with which the criminal justice system has establishecl that an offense has occurred and that a particular offender did it. This connection may have been definitively established through a crimi- nal conviction or persuasively alleged in a criminal indictment or simply sus- pected as a guide to investigative activity. In general, the more serious the offense and the stronger the established connec- tion to an offender, the greater the license criminal justice officials have to impose liabilities on offenders. Whether this in- cludes a greater right to make and use predictions about future criminal con- duct, however, remains unclear. The Offender The offender is also central to preclic- tions in the criminal justice system. With- out him, there is little of consequence for criminal justice officials to decide. It is most natural to think of the offender as someone who has just been convicted! and is awaiting sentencing. But the of- fender couIcl be at earlier stages of crim- inal justice system processing. He couIct be someone who has been indicted and is waiting to have bait set. He could be someone who has a strong evidentiary case against him and is awaiting a formal charge and indictment. Or, he couIc3 be a

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PURBLIND JUSTICE leading suspect who is the focus of a police investigation. From the point of view of the criminal justice system, the most important at- tribute ofthe offender is the connection to a current offense. That is what makes him the subject of criminal justice action. But the offender has other characteristics as well. One of the most important is a criminal record. The criminal record may be nonexistent, or it may be quite exten- sive; it may involve only minor offenses or may include serious offenses; it may be a record of nothing more than arrests, or it may include convictions; it may be an adult record, or it may include crimes committed as a juvenile. In addition to a criminal record, the offender has such other characteristics as levels of alcohol and drug use, neighborhood ties, employ- ment status and experience, age, race, religion, political beliefs, favorite foods, and tastes in music. These characteristics differ from one another in several ways. One concerns their moral and legal status. Some characteristics, such as prior crimi- nal conduct and current illegal drug use, are themselves crimes and therefore of direct interest to the criminal justice sys- tem. Others, such as race, religion, and political beliefs, are the opposite: they are specially protected against being used by criminal justice officials in making deci- sions. Some characteristics, such as prior crimes, drug use, and perhaps employ- ment, are thought to be under the control ofthe offenders and therefore expressions of their inclinations and values. Other characteristics, such as age or race, are not under the control of the offenders and consequently are of little moral signifi- cance: they cannot be expressions of a person's character although they might be good predictors of future conduct. These offender characteristics also dif- fer from one another in terms of how accurately they can be determined for 317 individuals ant] how conveniently they can be observed. Some characteristics, such as employment history, are rela- tively objective and can be established and verified for inclividuals through intu- itively obvious, if laborious, methods. Others, such as psychopathic tendencies, may be relatively objective, but the meth- ocis used to validate them are special and arcane. Still others, such as community ties, are quite subjective and hard to establish, although one can develop operational measures of an intangible characteristic that can be objectively cle- termined. Similarly, some of the charac- teristics of offenders are already known en cl recorded in files available to criminal justice agencies. Some can be inexpen- sively learned because they are recorded elsewhere or because the information is not carefully guarded by the defendant. But some characteristics can only be dis- covered through expensive and intrusive investigative efforts. A Predictive Rule The characteristics of offenders are im- portant for they form the basis for all predictions. All predictive tests have the same structural form: if an offender has a certain specified set of characteristics, that offender is predicted to be more (or less) likely to engage in future criminal activity than offenders with different characteristics. Any particular predictive rule has certain properties that are norma- lively significant. One important feature of the predictive rule is exactly which characteristics of offenders are selected to serve as preclic- tors. As noted above, the characteristics included in the test may be acts over which the individual has a great deal of control and are themselves criminal, or they can be characteristics over which the indiviclual has no control and, far from

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318 being criminal, are given special protec- tion. The characteristics included in the test may be more or less convenient and accurate to observe for individual offenc3- ers. Somewhat less obviously significant is the fact that the test can include many or few characteristics. The more charac- teristics included, the greater the oppor- tunity to accommodate important individ- ual differences among offenders. But the more characteristics, the more comoli- cated the rule, and the greater the chance of errors. Beyond the properties of the set of characteristics incorporated in the test, the test has other features that are norma- tively significant. It is more or less accu- rate in terms of its capacity to identify all those offenders who will, in fact, commit crimes in the future and to exclude those who will, in fact, not commit crimes in the future. The test may be designed to iden- tify small (and therefore more unusual) segments of the offending population, or it may be less discriminating. The vaTid- ity of the test may be based on common sense, elaborate statistical investigations, or clinical theories and judgments. The test can be explicitly promulgated or im- plicitly used. It can be authorized by a legislature, established through ac3minis- trative guidelines, or sanctioned by com- mon professional practice. A Consequential Decision In adclition to an offense, an offender, and a predictive rule, the consequential use of prediction in the criminal justice system requires that an action be taken by a criminal justice official with respect to the offender. A sentence must be im- posed; bait must be set; a plea bargain offered; or an allegation pursued win more or less zeal by prosecutors and police. The consequences of these deci- sions register in three quite different c30- mains through different causal and evalua CRIMINAL CAREERS AND CAREER CRIMINaLS five systems. The decisions obviously affect the rights and liberty interests of the individuals who are affected. These may be either enhanced or climinished by the ef- fects of predictions. The decisions also af- fect overall levels of crime in the commu- nity through the mechanisms of deterrence (both specific and general), incapacitation, and rehabilitation. Ancl, finally, Me deci- signs affect the community's overall per- ception that justice is being done in terms of striking the right balance between the community's interests in security and the offencler's interests in freedom, and be- tween the (lesire to treat cases with consis- tency and at the same time acknowledge important particular differences. The Central Ethical Issues The central ethical question raised by the use of predictive rules in the criminal justice system is whether an offender may be exposed to additional criminal liabfli- ties in the form of a longer sentence, higher bait, more determined prosecu- tion, or closer police scrutiny because of characteristics indicating that he is more likely than others to commit crimes in the future. A less fundamental but equally important question given the widespread current use of predictions is what kinds of predictions are better than others. These questions can be answered clirectly. But it seems that views about these questions are Inked to much broacler and more general notions of justice and of what constitutes a worthwhile improvement in the performance of We criminal justice system. It is as though the subject of prediction in the criminal justice system raises general moral connotations as well as specific normative issues. It is worth addressing these general ideas before ex- amining closely the specific ethical issues raised by prediction lest the influence of the moral connotations be decisive but unexaminecl.

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PURBLIND JUSTICE GENERAL NOTIONS OF JUSTICE AND STANDARDS OF CRIMINAL JUSTICE SYSTEM PERFORMANCE Most normative discussions of the criminal law and the operations of the criminal justice system proceed on the basis of s here cl intuitions about the vir- tues of these social enterprises. The shared intuitions are captures! in a few words that stand for whole clusters of more particular icleas. Moral Intuitions of Criminal Justice One key virtue of criminal justice is its "fairness." At the center of the concept of fairness are notions such as the following: that citizens shouIc3 know in advance what actions will be punished and how alleged offenses will be investigated (Packer, 1968:801; that the system shouIc3 be consistent, i.e., treat like cases alike (Hart, 1968a:36-37, 1968b:24-25; Packer, 1968:139-145; Winston, 1974:1-39; von Hirsch, 1976:77-83; N. Morris,1982:179- 2091; that criminal liability for conduct should be ctistributec3 across possible acts according to the seriousness of the of- fense, not the social status or power of potential offenders (von Hirsch, 1976: 77~31; that people shouIc3 be held re- sponsible for things they can control and not for things they cannot control (Hart, 1968a: 158-185, esp. 174, 1968b:24-251; and that the actual operations of the sys- tem in imposing criminal liability should be unbiased with respect to race, social class, and other social variables (McNeely and Pope, 1981; Blumstein et al., 1983a: 8, 13-21; Klepper et al., 1983:5~128; Petersilia, 19831. At the edges, the concept of fairness shacles into the concept of justice. In- deecI, the concept of justice seems to incorporate all the particular ideas associ- ated with faimess. However, while the concept of fairness seems to emphasize 379 the distribution of criminal liability through the society, the concept of justice seems equally concerned about the amount of criminal liability and the intru- siveness of the means used to impose it. In a free society the concept of justice implies restraint a sense of proportion and frugality in using the coercive power and moral indignation associated with criminal sanctions (Packer, 1968:24 260~. Thus, particular ideas central to the notion of justice are those that give citi- zens significant rights against the state and against those who accuse them: for example, the right of citizens to be free from unwarranted searches and seizures (McNamara, 1982:26-541; to confront their accusers in open trial (McNamara, 1982: 169-177~; and to have adequate time to prepare a defense (McNamara, 1982:21~2301. By establishing such rights for individuals, society constrains the amount en c] nature of state power that can be exercised against individuals on behalf of the community. To some, the notion of justice is not restricted to concern for the rights of de- fenclants. Arguably, justice is equally con- cemecl with protecting the moral stand- ing of the law and with guaranteeing that those who deserve punishment receive it (van den Haag, 1975:24-50; Weinreb, 1979:5; Carrington, 1983: 1~191. Some- times this position is described as one that protects "victims' rights" as well as "offenders' rights" (Bedau, 1977; Reiff, 1979; Carrington, 1983: 1(}12~. Insofar as the victim is interested in righting the wrong clone through retribution, this is an appropriate characterization. The crimi- nal justice system has many practical as well as moral reasons to accommodate the victim's interests in its proceedings (Greenwoo(l, Chaiken, and Petersilia, 1977; Blumstein et al., 1983a:41~. In our system of justice, however, it seems much more accurate to describe the obligation to administer just punishment as belong

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320 ing to the state rather than the victim. As Aeschylus portrays in The Eumenictes, a great moment in Western history is the moment when the concept of justice changed from private vengeance to pub- lic retribution. In that moment the state took from victims the right to punish those who had offencled against them in the interests of ensuring an accurate de- termination of guilt or innocence and fair- ness and moderation in the imposition of penalties. In a free society the desire to mete out deserved punishment must be tempered. Punishments should fit crimes, not be excessive. The process of deciding whether a person is guilty or innocent shouIct be sufficiently cleliberate to pre- vent passions from overwhelming evi- clence. And the standard of proof should be set very high to ensure that those judged to be guilty are in fact guilty, even if that means that many guilty people are found innocent. It is all of these features that ctistinguish public justice in a demo- cratic state from either private vengeance in primitive societies or totalitarianism. Still, it is important to keep in minc3 that like private vengeance, public justice has passion ant! moral indignation as key in- gredients. Indeed, without these features, it is almost impossible to distinguish criminal sanctions from civil sanctions (von Hirsch, 1976:48; von Hirsch and Gottfredson, 1983-1984:341. Stan(ling somewhat apart from these traditional notions of fairness ant] justice is the notion that the system should be useful and effective as well as fair and just (Blumstein, Cohen, and Nagin, 1978~. To most people, this means that the system should succeed! in reducing crime and should do so at the lowest possible cost (Nagel ant] Neef, 1977; Blumstein, Co- hen, an(1 Nagin, 1978; Silberman, 1978; Anclreano and Siegfried, 1980:411-426; Wilson, 1983b). Some would acl(1 recluc- ing fear to the utilitarian purposes of the CRIMINaL CAREERS AND CAREER CRIMINaLS criminal justice system (Moore et al., 1984:~22, esp. 1~191. Most would also probably recognize the interests in fair- ness and justice as important constraints on the practical pursuit of reclucec! victim- ization and fear (Blumstein, Cohen, and Nagin, 1978; Sherman and Hawkins, 1981: 106~. And perhaps everyone would quickly agree that, to be effective, a crim- inal justice system must command the active support of the community, and that that, in turn, might depend on how fair and just it seemed (Weinreb, 1979:~12; AncTreano and Siegfriecl, 1980:8~921. At the edges, an interest in an effective criminal justice system thus leads one back toward a system that imposes crim- inal sanctions with fairness anct restraint. Nonetheless, most people still see an im- portant distinction between a criminal justice system that is animated by a con- cern for justice anct fairness and one that is preoccupied with effectiveness. Specif- ically, it seems that the interest in effec- tiveness elevates the community interest in security over the interest in protecting the rights ofthe accusecl, allows estimates of aggregate social consequences to guide decisions that profoundly affect inclividu- als, an(1 leaves more room for social sci- ence and technology to be used to en- hance the efficiency or effectiveness of the system's operations, even at the cost of procedures honored by Tong tradition. All this makes the general idea of an effective criminal justice system quite clif- ferent from one animated by justice and fairness. Ethical Theory and Moral Intuitions About Criminal Justice The different intuitions about the vir- tues of a criminal justice system in a free society correspond to important differ- ences in modern systems of moral rea- soning. Modern ethical theory establishes a sharp distinction between "deonto

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PURBLIND JUSTICE logical" and "utilitarian" philosophies (Frankena, 1973:12~601. The difference between them is that deontological theo- ries assert that an act is right or wrong in itself, regardless of its consequences. Utilitarian theories, on the other hand, assert that acts can be judgecI to be good or bad only in terms of their conse quences. The moral intuitions that lie behind the concepts of fairness and justice seem closer to the spirit of cleontological than to utilitarian reasoning. These intuitions see virtue in the criminal justice system inso- far as it acts properly with respect to accused citizens and ignores the practical consequences of its actions both for the defendant and the broacler community. The intuitions that prompt a commitment to effectiveness seem much more utflitar- ian in spirit. The concern for effective- ness finds the virtue of acts by the crimi- nal justice system in terms of their consequences for the future of the of- fencler and the future security ofthe com- munity. The link between moral intuitions about criminal justice and the different modes of ethical reasoning means that the normative standing of the different moral intuitions about criminal justice is inex- tricably linked to the general standing of these different modes of reasoning in eth- ical discourse. In general, it seems that the deontological systems have greater standing. Why this should be true re- mains unclear since philosophers have not as yet reached a decisive conclusion in favor of cleontological systems. The dominance of deontological moral sys- tems seems to reflect a general expecta- tion, rooted in tradition, that ethical pro- nouncements should take the form of rules prescribing conduct rather than ends that must be pursued. This, in turn, may be based on the notion that rules honor GocT or human traditions more re- liably than particular calculations, which 32] clepend so heavily on the qualities of the individual calculator; or on a prudential judgment that reliance on rules would avoid many temptations and errors that would otherwise corrupt the particular calculations; or simply on the intellectual appeal of reasoning from principles rather than concrete instances. NiVhat~ver the reasons, the general preference for deontological systems makes it hard for utilitarian arguments to be taken seri- ously in ethical arguments. Particularly in the criminal justice system, where the stakes for individuals seem so high and where so much of the work involves the application of substantive rules to incli- vidual cases, utilitarian arguments seem a bit shabby. The sharp distinction between deonto- logical and utilitarian systems of reason- ing is unfortunate, for the challenge fac- ing those who guide the operations of the values shared criminal justice system is to integrate the values and concerns of each system of thought. In principle, this shouIcl not be difficult since our moral intuitions about the criminal justice system commingle deontological and utilitarian principles. As we have seen, fairness and justice are often clefenclec3 not simply as virtues in themselves, but also as qualities that en- hance the overall effectiveness ofthe sys- tem by drawing broad support from the community. Similarly, one can argue that the notion that the criminal justice system should be effective and economical in the use of state power anti money is not simply a shabby interest of the society, but a fundamental duty of those who gui(le, and operate within, criminal jus- tice institutions. It might be possible, then, to have a criminal justice system that successfully integrates the particular that are contained within and among our general moral intui tions. The clifficulty is that the schism be- tween (leontological en cl utilitarian sys

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322 terns may make it difficult for us to see when a successful integration has been achieved. The integration will always look a little too unprincipled to a cleontologist and a little too ineffective to a utilitarian. And each will feel free to complain about the apparent corruption of the system viewer] from his or her vantage point. There may be no strong philosophical voice to step forward and say that the successful integration repre- sents a coherent view, because the suc- cessfuT integration will not fit wholly within either of the two systems of thought that have become familiar. Standards of Criminal Justice System Performance The general notions of fairness and justice, on the one hand, and economy and effectiveness, on the other, offer al- temative conceptions of the directions in which improvements in criminal justice system performance might lie: i.e., toward more consistent treatment of of- fenders, toward a more refiner] balance of community and incliviclual interests, or toward less use of the state's limited fi- nancial and moral authority to achieve the same amount of community security. They do not in themselves define tolera- ble levels of criminal justice performance in the pursuit of one or the other ideals. And yet the extent to which the current system realizes any of these idealized notions may be as important in judging the overall quality of the system as which icleal it is approximating. The most demanding standard for the criminal justice system is that it be an exact expression of an ideal system: that it be perfectly fair, perfectly just, or per- fectly economical. Although no one would really hold any human institution to these exalted stanclarcis, when one is talking about the criminal justice system, one is tempted to set the minimal stan CRIMINAL CAREERS AND CAREER CRIMINALS cards of performance very high and to be impatient with mere improvements in a basically corrupt system. The reason is that the decisions of the criminal justice system are so consequential for incliviclu- als (and for the overall character of the community) that the obligation to express the community's highest ideals is very strong. This is particularly true when one is talking about fairness and justice, for these qualities do not seem to exist in degrees. In common parlance, people conclude that the system is tolerably fair and just, or it is not. And any system of criminal justice that is unfair or unjust is intolerable. So, our moral intuitions push us toward idealism in setting standards for criminal justice, and particularly so in the areas of fairness and justice. A different standard of justice would be whether the operations of the criminal justice system meet constitutional re- quirements. Often, this standard is con- fused with the first standard because many observers of the criminal justice system would like to believe that their idealized notions of justice are not only sanctioned by the Constitution but also required by it. Moreover, the room to make this claim often exists because the Supreme Court decisions that establish constitutional principles are rarer and less definitive than is necessary to banish ambiguity about constitutional issues. Nonetheless, one can distinguish what is clearly unconstitutional from something that is conceivably acceptable, and this provides a second standard of criminal justice performance. A third standard is simply whether a proposed policy or program constitutes an improvement in one or another dimen- sion of performance compared with cur- rent operations. Inevitably, all real sys- tems of justice fall short of idealized notions. They may also sometimes fall short of constitutional standards. Conse- quently, it may be important to know

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PURBLIND JUSTICE whether proposer] changes in criminal justice system operations are moving us toward or away from an ideaTizecl concept of the criminal justice system. If a pro- posal promises to smooth the rough jus- tice that is actually meted out in the system even a little bit, it may be worth adopting even though the proposal fails to usher in a heretofore unattainable ideal. To a degree, these stanclarcis form a hierarchy for evaluating proposed changes in criminal justice policy. The most demanding is whether the proposed change is the final step in establishing an ideal system of justice. Much less cle- manding is that the proposed change fur- ther the aims expressed in the Constitu- tion. Less demanding still is that the proposed change be an improvement over current practices. These different stanciarcts of what con- stitutes a valuable or worthwhile im- provement in criminal justice operations are as important to keep in minct as the different intuitions about the substantive values that shouIc! guide the criminal jus- tice system, for they, too, become part of our discussions about whether predic- tions are tolerable in the criminal justice system. There are many proposals that might enhance the justice, fairness, and efficiency of the criminal justice system but that could be rejected because they fait to establish perfect justice. The cru- cial question is whether such proposals would be worth adopting. Once again, this important issue is af- fected by the difference between deonto- Togical and utilitarian systems of reason- ing. In principle, both schools have their "idealists" and their "realists." But the spirit of deontological systems is more given to idealism and exacting stanclarc3s. The spirit of utilitarianism, on the other hand, is quite tolerant of practical reali- ties ant] keenly interested in marginal improvements wherever they can be made. This means that those who want to 323 hold the moral high ground by sticking to the spirit of deontological systems will tend to establish very high standards across the board. Those who are inter- ested in encouraging small improve- ments in current operations might well be tarred with the brush of utilitarianism, even if the improvements they seek are in the areas of fairness and justice. My own position is that we all have a fundamental duty to encourage improve- ments in criminal justice system opera- tions in the directions of justice, fairness, and efficiency and to do so regardless of how large or small the changes. That may seem far too utilitarian, or realistic, or pragmatic to have much standing in moral discourse. Ant! it is certainly true that this position wouIcl not only countenance but also enthusiastically embrace many pro- posals that seem shabby against the back- clrop of an i(leaTizecl system. But the weight of the duty to make improvements where they can be found can be mea- sured by asking what we would think of a criminal justice official who know- ingly abandoned some opportunity to im- prove the fairness, justice, or efficiency of the system without significant loss to so- ciety. ETHICAL ISSUES IN PREDICTION IN TtIE CRIMINAL JUSTICE SYSTEM The most fundamental objection to the use of prediction in the criminal justice system is that it is unjust and that any explicit or implicit use of prediction dis- graces our system of justice (Dershowitz, 1973:1277-1324; N. Morris, 1974:62~73; N. Morris and Miller, 1985:651. This po- sition is held by those who think that the most fundamental quality of the criminal justice system is justice (rather than effec- tiveness) and that a just system is one that holds people accountable only for acts committed in the past. This position has come to be callecl the "retributivist" or

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324 "just deserts" position (von Hirsch, 1976: 124-127; von Hirsch and Gottiredson, 1983-1984:34~37; von Hirsch, 1984b: 17~194, esp. 1791. Re~ibutivist Attacks on Prediction A second objection to predictions of criminal activity is that they are inaccu- rate ant] that inaccuracy results in injus- tice to those offenders who are mistak- enly predicted to commit crimes in the future and are thereby exposed to unwar- rantec] penalties ant! liabilities within the criminal justice system (N. Morris, 1974:62-73; von Hirsch, 1976:21~36; N. Morris and Miller, 1985:24~36; von Hirsch and Gottfredson, 1983-1984: 1771. This view is often embraced also by retributivists, since it reflects their gen- eral suspicion of the reliability of social science technology, is consistent with their strong concern for individual justice for criminal offenders, and, in any case, offers an additional line of attack on pro- posals to use predictive methods more extensively. Nonetheless, this objection can be sharply distinguished from the first objection. The ctifference is that this second view does not say that it would be wrong to impose adclitional liabilities on those preclictec3 to commit offenses-only that it would be wrong to do this inaccu- rately. "False positives" are the prob- lem not liability being placed on incli- viduals for acts in the future. The first and second objections would effectively rule out the current use of prediction in the criminal justice system: the first because prediction is ruled out absolutely; the second because current predictive techniques cannot measure up to required levels of accuracy. Conse- quently, unless these objections can be overcome, the discussion of prediction is at an end. A third objection is less funclamental because it focuses on the characteristics CRIMINAL CAREERS AND CAREER CRIMINALS inclucled in the predictive rule rather than the appropriateness of prediction in general or the requirement that the pre- dictive rule meet a high stanciarc! of accu- racy to prevent injustice to individuals. By this standard, only certain characteris- tics of offenses and offenders may be incluclect in the predictive test. Appropri- ate characteristics are those that the indi- viclual controls and that themselves re- flect criminal concluct (such as prior offending and drug abuse). These are ap- propriate because they establish "morally relevant differences" among offenders (von Hirsch, 1976:212-213, 1981b). Inap- propriate characteristics are those over which the individual has only limited or no control, that are not in themselves criminal conduct, ant] that are correlated with deprived social status, such as em- ployment status, race, or poverty. Also inappropriate are such variables as reli- gion or political views. Incleed, it may be so important that the criminal justice sys- tem avoid any taint of bias with respect to race, income, religion, or political views that it not only resist using these variables explicitly but also avoid variables that are correlatecl with these especially sensitive variables (N. Morris and Miller, 1985~. At the extremes, concern about the characteristics incorporates! in the predic- tive tests may make it impossible to con- struct any useful and decent test. This is particularly true if the tests must meet a high standard of accuracy and be neutral with respect to sensitive variables on a He facto as well as a He jure basis. So, scru- ples about the characteristics used in pre- clictive tests may not only reduce the practical value of the tests but also rule them out completely on normative grounds (Moore et al., 1984:7~791. Thus, from a retributivist position, the whole notion of predictions and particu- larly predictions that establish (liffer- ences among individuals on the basis of morally irrelevant characteristics is fun

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PURBLIND JUSTICE Although the offense-based focus of prosecutors remains the dominant princi- ple in guiding prosecutorial discretion, in the last clecacle prosecutors have experi- mented with a new principle that would give priority attention to "career crimi- nals" or "major offenders'7 (Harper and McGillis 1977; Moore et al. 1984:1371. , In effect, in deciding how cleterminec3ly to pursue a case, prosecutors have de- cided to consider characteristics of the offender as well as the offenses and the strength of the evidence. The characteris- tics that qualify an offender for special treatment include a history of serious, repetitive, and persistent criminal con- duct although there are important dif- ferences among prosecutors' offices with respect to the relative weights given to the different characteristics or criminal history (Harper and McGillis, 1977; With- comb, 1980; Rhodes et al., 1982~. Some officials think a few serious crimes- even if widely separated in time would qualify an offender for special attention; others pay much closer attention to the rate and persistence of criminality and worry less about the seriousness of the offense. The special treatment to which offenders are exposed includes special efforts to gather, preserve, and protect evidence in the case; charges filed at the highest possible level sustainable at trial; restrictions on plea bargaining; ant! prompt trials. The aim is to increase the likelihood that those with a serious record will be convicted and to extend sentences for those who are convicted. This change in prosecutorial proce- dures can also be understood in both retributive and utilitarian terms. The re- kibutive justification is the same as that for habitual offender sentencing laws: that offenders with long records have shown themselves to be unusually unrepentant and careless of society's val 345 ues and, therefore, unusually (reserving of punishment. The utilitarian justifica- tion is that offenders who have committed crimes repeatedly in the past are particu- larly likely to commit crimes in the fu- ture, anti, therefore, it is particularly valu- able to focus scarce prosecutorial time on ensuring that these unusually dangerous offenders will be punished and incapaci- tated. Obviously, this focus on criminal record and characteristics of the offenders is related to the question of prediction. To the extent that a utilitarian logic motivates the shift from the focus on current of- fenses to past offenses an(1 to the extent that past offenses predict future conduct well, one can argue that prediction has crept into prosecutorial decision making and is therefore sanctioned by current practice. Nonetheless, it would probably be more accurate to say that predictions of dangerousness have not yet been as sys- tematically or as explicitly introducer! into prosecutorial decision making as they have into sentencing decisions or even bait decisions. So, explicit use of predictions of dangerousness is not yet sanctioned by current prosecutorial prac- tice. The important ethical questions are whether such methods would be consti- tutional and consistent with moral intui- tions about the criminal justice system. At the outset, the idea of selective pros- ecutions focused on those predicte(1 to be (langerous seems to threaten the princi- ples of equal protection and due process. Indeed, it seems even more threatening if dangerous offenders are prosecuted more determinedly for relatively minor of- fenses or for charges in which the evi- clence is relatively weak (Moore et al., 1984:141-142~. As noted above, if prose- cutors organized an overwhelming on- sTaught against a dangerous offender charged with a serious crime, or if they

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346 kept prosecuting dangerous offenders for vagrancy or disorderly conduct, or if they kept bringing robbery cases on the basis of trumpecl-up evidence, they wouIc3 have crossed an important line that makes our system of justice fair and restrained. The interesting question, however, is not at the extremes but in the misfile range. ShouIc3 prosecutors give a slightly more vigorous and determined prosecu- tion to cases involving dangerous o~er~cI- ers? A vigorous prosecution conic] mean enhanced effort in cases of serious crime in which the evidence was very strong refusing to accept plea bargains, conduct- ing extensive collateral investigations, or moving very quickly in a case in which there were strong physical evidence and eyewitnesses. It couIcI also mean a greater willingness to prosecute less seri- ous offenses where the evidence was strong-for example, holding out for a felony conviction in a case of gun posses- sion when the testimony of two police officers is corroborated by a witness. Or, it could mean being willing to risk failure in prosecuting a serious crime in which the evidence was well above the constitu- tional standard but much less than the usual prosecutorial stancIarc3 of 90 percent certainty to win at trial for example, a robbery case in which there is no physical evidence ant] the eyewitness testimony is shaky. It is in these areas that a selective focus among prosecutors would operate, and it is the justice of these actions that must be consiclerect. As a constitutional matter, it seems fairly clear that prosecutors c30 have the leeway to establish principles for acljust- ing levels of prosecutorial effort among offenders as Tong as the principle serves some legitimate social purpose, and as Tong as the policies are not based on an unjustifiable standard (such as race, reli- gion, or social classy, the motives of the prosecutor are not vindictive, and the policies are not designed to frustrate cle CRIMINAL CAREERS AND CAREER CRIMINALS fondants in their exercise of constitu- tional rights, such as freedom of speech, assembly, and religion (CarclinaTe and Feldman, 1978:659-692; Vorenberg, 1981~. While there have been a few cases in which the mere exercise of discretion was found objectionable on equal protec- tion grounds (Village of Fairlawn v. Fuller, 8 Ohio Misc. 266, 221 N.E. 2d 851), the dominant court opinion has been that it was not sufficient for a de- fendant to show that offenders escapee! punishment tOyler v. Boyles, 368 U.S. (19621; Washington v. Unitecl States, 401 F.2d 915, 925 (D.C. Cir. 1968~. On the other hand, where prosecutors seem to have been motivated by arbitrary, racially tainted standards, or where they seem to have been guided by vindictiveness, the courts have found constitutional viola- tions Wick Wo v. Hopkins, 118 U.S. 356 (1886~; People v. Utica Daw's Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128 (1962); Unitecl States v. Berrios, 501 F.2d 1207 (2d Cir. 197411. But in showing discrimi- natory enforcements the courts have gen- erally placed the burden on defendants (People v. Utica Daw's Drug Co.~. Such cases do not affimnatively establish a li- cense for prosecutors to vary levels of effort according to predictions of future criminality. But\ to the extent that such predictions were accepted by the courts as a legitimate law enforcement purpose and they were formulated in a way that avoided any taint of arbitrariness or racial bias, the courts would probably accept the policies as within the range of prosecutorial discretion. Indeed, what makes the conclusion seem particularly justifiable is not so much that the court countenances predictions as that the court has been extremely reluctant to ex- ercise any control over prosecutorial dis- cretion at all. As fudge (now Chief [us- tice) Burger wrote in Newman v. United States, 382 F.2d 429, 480 (D.C. Cir. 1967~: "Few subjects are less adapted to

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PURBLIND JUSTICE juclicial review than the exercise by the Executor of his discretion in clecicTing when anc3 whether to institute criminal . ,, proceec lngs.... If establishec! legal principles are not a bar, what about moral intuitions? Here, one is once again plunger! into the gen- eral discussion of cleontological objec- tions to anc! utilitarian justifications for prediction. The only difference is that here we are talking about "special" prosecutorial efforts, anc] much turns on what is meant by "special." If what is meant is nothing more than special efforts to collect anc! preserve evidence anc] to proceec] quickly to trial, surely there is little objection. Although an interest in "fairness" among clefenclers might be vi- olatecI, one can reasonably argue that of- fenclers clo not have a constitutional or even moral right to the ordinary, sloppy prosecution they receive in tociay's overburclenec! criminal justice system. AncI, since no clue process issue is raised, this kinc! of"special treatment" seems acceptable. Somewhat more worrisome are those concerns relater! to clue process: that cle- fenciants might be overawes! by zealous prosecutors, that the trial process might be contaminated if it was known that a clefenciant was one of those preclictec] to be clangorous, anc] that the balance be- tween the resources available to defense and prosecution might be upset. All of these are important because they affect the substantive findings of guilt or inno- cence ant] do so in a way that violates the defendant's rights to due process and the community's interest in being sure that justice is being done. There are answers to these concerns. Special procedures could be developed to make sure that judges and juries were unaware of the special status of the of- fenclers to avoid the informal introduction of prejudicial information at trial. Special resources couIct be made available to the 347 defense as well as the prosecutor in cases involving those prectictecI to be danger- ous. And by developing prediction crite- ria basecl on an extensive criminal record, we couIcT guarantee that the defendants who were vulnerable to the special pros- ecution were relatively experienced of- fen(lers who would not easily be fright- enec3 by a prosecutor's bluffs and threats. But none of these answers is wholly sat- isfactory. As is generally the case, the decision comes down to a balance among the com- munity's interest in security, the defen- dant's interest in avoiding criminal lia- bility, and a broad social interest in guar- anteeing certain standards of justice. In striking the balance, many see special prosecutions as particularly threatening to standards of justice since they may have a decisive effect on the question of guilt or innocence. Hence, they judge the defendant's rights and interests to weigh more heavily in this regard than in sen- tencing decisions. And this would clearly be true if a defendant was being prose- cuted for the first time. But the more interesting question is whether special prosecution would be inappropriate when a defendant has already been con- victed of several offenses and when he is predicted to be dangerous. Arguably, this is more acceptable because it makes it less likely that the defendant will be overawed and may, in any event, dimin- ish the defendant's rights in the same way that they seem to be diminished in deter- mining sentences. PREDICTION AND BLAMEWORTHINESS After one has been through the intel- lectual contortions of evaluating predic- tion-based criminal justice decisions from retributive and utilitarian perspectives, and, as a general idea and in particular applications, one longs for a simpler

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348 view. The very complexity of the analysis weakens its credibility. In my view this complexity is unneces- sary. It is forced on us by a recently found sophistication in reasoning about this is- sue. Incleed, the sharp distinction drawn between retributive and utilitarian posi- tions that is the cornerstone of much con- temporary analysis obscures a far simpler and more coherent view. This simpler view depends on seeing what is common to retributive ant! utilitarian views rather than what is different. The iclea that emerges is unfamiliar and unconven- tional in today's debates, but I think it might be treated as commonplace and obvious in a world in which the current distinctions were less firmly ant! sharply drawn. The contemporary view of retributive theories is that they properly focus the attention of the criminal justice system on current acts rather than the character of offenders. It is the criminal act that pro- vides the justification for punishment. The more serious the act, the more seri- ous the punishment. There is much to commencI this posi- tion. It connects to more primitive icleas of justice as vengeance without being hostage to the excessive passions and penalties that might characterize private vengeance. The offense is against the community and the state-not a private individual. The response is regulated by concerns for equal protection and due process-not the strength of the victim's comrades. It also turns out to be a position that limits the state's interest and surveil- lance to narrow areas marked by actual criminal offenses (Moore, 1983:17~21. This not only protects much of social life from government scrutiny but also guar- antees that, when the state's interest is engaged, it is focused on an area in which it can do some good rather than mischief. And the focus on acts prevents the society from developing any permanent view of CRIMINAL CAREERS AND CAREER CRIMINALS the character and status of criminal of- fenclers (von Hirsch, 1981a:599~. All this seems to strike a nice balance between the community's interests in simulta- neously engaging state power to protect a limited number of community values and preventing the state itself from becoming too powerful and intrusive. Attractive as the focus on acts seems to be, however, it produces some curious anomalies when used to explain our cur- rent criminal laws. The most glaring is the importance that the criminal law at- taches to the mental state of the offender at the time he committed the offense. If the act itself is so important to criminal punishment, one might expect many criminal statutes to establish strict liabil- ity for criminal offenses. In fact, however, strict liability is very rare in criminal statutes (Packer, 1968:121-1311. It is gen- erally important that some demonstration be made that the offender willed an act as well as that the act occurred. Similarly, there are many climinishect-competence defenses and statuses (including mental illness, compulsion, and youth) that miti- gate blameworthiness by casting doubt on whether the offender was in fact the author of the act in the sense that the outcome ofthe act was a complete expres- sion of what the offender wanted. Finally, under some circumstances (defined in the law of"entrapment"), government com- plicity in a crime can absolve an offender. Thus, anything that drives a wedge be- tween a criminal act and the intention of the offender tends to mitigate guilt be- cause it confuses our capacity to infer criminal intentions from criminal acts. So, the act alone is not sufficient for criminal responsibility. The intention to do the crime- to cleny the values of the soci- ety must be shown, as well as the act. What is even more surprising is that a harmful act is not even necessary for criminal responsibility. Laws that make attempts or conspiracies to commit

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PURBLIND JUSTICE crimes vulnerable to criminal prosecution essentially make a durable, visible inten- tion to do a crime worthy of punishment even if the substantive offense never oc- curs (Packer, 1968:100-1011. True, these laws typically carry less severe penalties than the completed offenses would jus- tify. And true, some overt acts are neces- sary to trigger the investigation and pro- vide proof of a durable criminal intention. But the point is that the acts are important not in themselves but only as they afford insight into the intentions of offenders, and it is the intentions alone that justify punishment. So, even though we are accustomed to thinking of acts as the most essential fo- cus of the criminal justice system, a harm- fuT act is neither sufficient nor even nec- essary for findings of"blameworthiness." Intention, on the other hand, which seems less essential, is not only necessary for criminal responsibility, but sufficient itself! One possible implication of these observations is that it is criminal inten- tion- the willing rejection of society's values, including that obligation to re- spect the life, liberty, and property of others-that justifies the punishment. The act is important not only in itself but also and most fundamentally as an objec- tive piece of evidence about the inten- tions, values, and character of citizens. If this interpretation were accepted, it would also help to explain why most peopIc- inclucling many retributivists- believe that it is appropriate to adjust the severity of criminal justice sanctions in response to prior criminal acts as well as to the seriousness of current criminal of- fenses. This is true regardless of whether the criminal justice sanction in question involves sentencing and is established through statutes (as in habitual offender statutes) or involves prosecution and is establishecI by administrative fiat (as in the establishment of "career criminal united. This position is problematic, 349 however, to a strict retributive position that ties criminal liability only to acts. The inconsistency can be resolved in three ways. One is to point out that the series of offenses indicates that an of- fender is unusually resistant to learning from punishment and therefore more punishment is called for. This may make sense, but it is a utilitarian rather than a retributive argument. A second argument is that the fourth robbery is somehow worse than the first and therefore is more deserving of punishment. But that is sim- ply an assertion. The obvious question that is unanswered is exactly what makes the fourth robbery worse. A third argument, which seems more satisfactory, is that the criminal law ad- justs penalties for offenses on the basis of what can be discerned about intention and character and that a series of offenses reveals an offender as clearly more will- ing to commit crimes than others and, therefore, as more deserving of punish- ment. We all understancl that criminal offenses can be caused by circumstance and transient passion as well as by clear intention. When we Took at first offenders, it is quite possible that their values and character their commitment to the society's values are much like every- body else's and that they were simply unlucky enough to stumble into a situa- tion that proclucec3 an uncharacteristic offense. When we look at someone who has committee] many offenses, however, the hypothesis that the offender is much like everyone else in terms of his values must yielcl to the alternative hy- pothesis that the values are different: the offender is less solicitous of and more willing to attack the lives, liberty, and property of fellow citizens. It is this in- creasecl certainty about the offencler's values that justifies enhanced punish ment. So, there is a certain coherence in thinking of retributive conceptions of jus

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3so lice as being concerned about the inten- tions, values, and character of offenders as well as their acts. This is important, for if intentions and character are durable (i.e., if people have guiding values that last for at least a little while), past actions of offenders might well predict future ac- tions. Consequently, a policy that sanc- tioned extra punishment for past repeated criminal acts would produce about the same results as a policy that adjusted penalties on the basis of predictions of future criminal acts. Thus, retributive and utilitarian justifications coalesce in a fo- cus on those who have revealed their intentions ant! capacity to commit crimi- nal acts through a pattern of past offenses. What ties these principles together is the argument that character relatively clura- ble values ant! intentions is fundamen- tal to both retributive and utilitarian jus- tifications for punishment. Note that to accept the idea that char- acter is durable and funciamental to both retributive and utilitarian justifications for punishment is not to accept the idea that it is permanent. People's values and in- tentions can change. Even the most cyn- ical might excuse offenders who had aged ant! matured before their just penalties were served and be reluctant to exact the maximum penalties from those 20-year- olds who committee! many offenses, on the grounds that such offenders might change. So, we need not decicle that char- acter is permanent to decide that it is somewhat durable and relevant to crimi- nal justice decisions. If this interest in character provides the basis for a synthesis of retributive and utilitarian principles, why is it an unfa- miTiar idea? My answer is that this idea runs counter to a dominant icleology guid- ing criminal justice policy. Central to that ideology is the idea that moraTism must be kept out of the criminal law because the passions that would be released if it were invited in are uncontrollable (Gil CRIMINAL CAREERS AND CAREER CRIMINALS lers, 1983:4021. The focus on the inten- tions and values of offenders incleec] the argument that it is wrong values as re- veaTed by acts that justify punishment puts values at the center of the criminal justice system and thus runs directly counter to the dominant icleology. Per- haps equally important, we have been guided by a hopeful view of human na- ture: human character is transient, changeable, and influenceable; guilt for current offenses is therefore always miti- gated; and bright hopes for rehabilitation are reasonable. The focus on durable character treats the role of outside influ- ence as morally irrelevant and is less optimistic about the rate at which impor- tant changes in values can occur. So, the focus on character flies in the face of icleologies that have been central to our contemporary jurispruclence. Obviously, no one is interested in un- leashing a new age of moral oppression. We value our freedom, our mobility, our ability to experiment with different val- ues far too highly for this. But it floes seem valuable to remind ourselves of some simple principles we seem to have forgotten: that the criminal law is a moral statement about the values that bind our society together by imposing minimal ob- ligations on one another; that the society insists that people honor those laws and the values that lie behind them; and that, when a person clearly shows an incliffer- ence to those obligations through his or her actions, the society has a right to respond with indignation moderated by concerns for clue process and equal pro- tection. This set of principles sanctions an interest in character in those who have committed offenses in the past and will (lo so in the future. At the same time, it limits the reach of the system to those who have committed offenses in the past. It does not try to reach for extra state control through improved techniques of prediction that provide less satisfactory

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PURBLIND JUSTICE ways of exploring character than prior criminal conduct. SUMMARY AND CONCLUSIONS Our sharer! vision of the worIc3 of crim- inal offenses and criminal justice policy has become a great clear more compli- cated than it once was. We now think of criminal offenses as the result of acci- clents and transient passions as well as considered intentions. We think of crim- inal justice decision making as cliscretion- ary and relying on professional knowI- edge and expertise rawer than automatic application of well-established princi- ples. Simple notions of justice that com- bined concern for justice with ordinary prudence have become elaborate, sharply differentiated ethical theories emphasiz- ing retributive or utilitarian aims of crim- inal justice policy. So, it is hard to fins! the thread of decency and justice in propos . . 1- - ~ng cr~m~na Justice policies. Into this tangled and overburdened world come proposals to make wider use of improved prediction techniques in tar- geting offenders for investigation and prosecution, in setting bail, and in impos- ing sentences. The appeal of such tech- niques comes from their apparent poten- tial to produce greater community security from the financially (and morally) limited capacities of the state to punish, and to impose some rational order on what is otherwise a crazy-quiTt pattern of discretionary decision making that leaves great room for injustice. But there are problems with the iclea of relying on predictive tests. To retributiv- ists, it seems wrong to impose criminal liabilities on the basis of predictions of further criminal acts. To many others, it seems wrong to impose liabilities on peo- ple who are falsely predicted to commit crimes in the future. Still others worry about the characteristics that will be used in the predictive tests, thinking that it 357 would be wrong to use characteristics that were not under the control ofthe offender and were not themselves criminal in nature. And there are always the ques- tions of exactly at what point in the crimi- nal justice process the tests would be applied and what consequences the use of the tests would have for criminal of- fenders. One can wrestle with these questions at many levels. It seems to me, however, that the easiest way through this tangle is to be guides] by two principles: First, the best guide to both blameworthiness and future criminal conduct is prior criminal offenses. Second, it is a virtue to be eco- nomical in the use ofthe state's moral and financial capacity to punish and control. If accepted, these principles would have the following implications: That predictive or discriminating tests should be clesignecT to identify a small and distinctive element of the of- fending population. That the tests should be based pre- dominantly on prior criminal conduct. That no one should be identified as, or predicted to be, dangerous who does not have repeated adult criminal convic- tions on his or her record. That juvenile records of serious of- fenses couch be used for purposes of dis- cerning dangerousness or predicting fu- ture crimes if a person committed serious offenses soon after graduating from the juvenile justice system. That the use of information on indict- ments and arrests in addition to convic- tions can be used in the tests and is probably to be preferred to the use of employment or marital data. That the required accuracy of the tests shouIcl be consistent with the size of the practical benefits of the test and with the size ofthe burdens imposed on clefen- ciants. That the tests couIcl be used not only

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352 for sentencing, but also for targeting in- vestigations and prosecutions. That the additional liability at sen- tencing should be limiter] by Me serious- ness of the offense for which We person was convicted. That the additional liability at inves- tigation and prosecution stages be expo- sure to more vigorous investigation and prosecution but within clue process pro- tections. That Me principal justification for us- ing improved prediction techniques at Me ball stage would be to reduce Me use of pretrial detention, guarantee Mat de- tention is focused on Me most dangerous offenders, and rationalize the current cha- otic system. That Me tests be thought of less as prediction techniques and more as a way of focusing attention on those offenders who have revealed tendencies to be un- usually dangerous through their past acts. These proposals may have the effect of dampening some of the technocratic en- ~usiasm for prediction. But in my view Mat is their virtue rawer than their vice. REFERENCES AND BIBLIOGRAPHY American Friends Service Committee 1971 StruggleforJustice: A Report on Crime and Punishment in America. New York: Hill and Wang. Andreano, Ralph, and Siegfried, John J., eds. 1980 The Economics of Crime. New York: John Wiley & Sons. Attorney General's Task Force on Violent Crime 1981 Final Report. Washington, D.C.: U.S. De- partment of Justice. Bedau, H. 1977 Concessions to retribution in punishment. In J. Cederblom and W. Blizek, eds.,Justice and Punishment. Cambridge, Mass.: Ballinger. Blumstein, Alfred, Cohen, Jacqueline, and Nagin, Daniel, eds. 1978 Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates. Washington, D.C.: National Academy of Sciences. CRIMINAL CAREERS AND CAREER CRIMINALS Blumstein, Alfred, Cohen, Jacqueline, Martin, Susan E., and Tonry, Michael, eds. 1983a Research on Sentencing: The Searchfor Re- form. Vol. I. Washington, D.C.: National Academy Press. 1983b Research on Sentencing: The Search for Re- form. Vol. II. Washington, D.C.: National Academy Press. Boland, Barbara 1983 Identifying serious offenders. In Mark [I. Moore, Susan Estrich, Daniel McGillis, and William Spelman, eds. Dealing With Dan- gerous Offenders, Vol. 11: Selected Papers. John F. Kennedy School of Government. Cambridge, Mass.: Harvard University. Boland, Barbara, and Wilson, James Q. 1978 Age, crime and punishment. Public Interest 51:22-35. Brown, Peter 1981 Assessing officials. In Joel L. Fleischman, Public Duties. Cambridge, Mass.: Harvard University Press. Caplan, Gerald M., ed. 1983 ABSCAM Ethics: Moral Issues and Decep- tion in Law Enforcement. Washington, D.C.: The Police Foundation. Cardinale, Philip J., and Feldman, Steven 1978 The federal courts and the right of nondis- criminatory administration of the criminal law: a critical view. Syracuse Law Review 29:659 692. Carrington, Frank 1983 Crime and Justice: A Conservative Strategy. Washington, D.C.: The Heritage Foundation. Cederblom, J., and Blizek, W., eds. 1977 Justice and Punishment. Cambridge, Mass.: Ballinger. Chelimsky, Eleanor, and Dahmann, Judith 1981 Career Criminal Program: National Evalua- tion: Final Report. Washington, D.C.; U.S. Government Printing Office. Collins, James, J. 1978 Offender Career and Restraints: Probabili- ties and Policy Implications. Philadelphia, Pa.: University of Philadelphia Press. Curtis, Lynn A., ed. 1985 American Violence and Public Policy. New Haven, Conn.: Yale University Press. Dawson, Robert O. 1969 Sentencing. Boston, Mass.: Little, Brown. Dershowitz, Alan 1973 Preventive confinement: a suggested frame- work for constitutional analysis. Texas Law Review 51:1277-1324. 1974 The origins of preventive confinement in Anglo American law. University of Cincin- nati Law Review 43: 1~0, 781-846.

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PURBLIND JUSTICE 1976 Background paper. In Twentieth Century Fund Task Force on Criminal Sentencing. Fair and Certain Punishment. New York: McGraw-Hill. Eck, John E. 1983 Investigative strategies for identifying dan- gerous repeat offenders. In Mark H. Moore, Susan Estrich, Daniel McGillis, and William Spelman, eds. Dealing with Dangerous Of- fenders, Vol. II: Selected Papers. John F. Kennedy School of Government. Carn- bridge, Mass.: Harvard University. Fabricant, Neil 1968 Bail as preferred freedom and the failures of New York's revision. Buffalo Law Review 18:303 ;315. Fleischman, Joel L., ed. 1981 Public Duties. Cambridge, Mass.: Harvard University Press. Fletcher, George 1978 Rethinking Criminal Law. Boston, Mass.: Little, Brown. Floud, Jean, and Young, Warren 1981 Dangerousness and Criminal Justice. Lon- don, England: Heinemann. Foote, Caleb 1965 The coming constitutional crisis in bail: I. University of Pennsylvania Law Review 113:95~999. Forst, Brian, and Brosi, Kathleen B. 1977 A theoretical and empirical analysis of the prosecutor. Journal of Legal Studies 6:177-191. Frankel, Marvin E. 1973 Criminal Sentences: Law Without Order. New York: Hill and Wang. Frankena, William K. 1973 Ethics. 2nd ed. Englewood Cliffs, N.J.: Pren- tice Hall. Freed, Daniel 1982 Dangerous Offenders and the Bail Process: Protecting Public Safety Without Preventive Detention. Unpublished paper. Yale Univer- sity, New Haven, Conn. Gaynes, Elizabeth 1982 Typology of State Lauds Which Permit the Consideration of Danger in the Pretrial Re- lease Decision. Washington, D.C.: Pretrial Services Resources Center. Gillers, Stephen 1983 Selective incapacitation: does it offer more or less? Record of the Association of the Bar of the City of New York 38 (41. Golding, Martin P., ed. 1966 The Nature of Law. New York: Random House. 353 GoldLamp, John 1979 Two Classes of Accused: A Study of Bail and Detention in American Justice. Cambridge, Mass.: Ballinger. Greenwood, Peter, with Abrahamse, Allan 1982 Selective Incapacitation. Santa Monica, Calif.: Rand. Greenwood, Peter, Chaiken, Jan, and Petersilia, Joan 1977 The Criminal Investigation Process. Lexing- ton, Mass.: Heath. Harper, Andrew, and McGillis, Daniel 1977 The Major Offense Bureau: An Exemplary Project. Washingon, D.C.: U.S. Government Printing Office. Hart, H. L. A. 1968a Law, Liberty and Morality. Stanford, Calif.: Stanford University Press. 1968b Punishment and Responsibility. New York: Oxford University Press. Institute for Judicial Administration and American Bar Association 1917 Standards for Juvenile Justice. Cambridge, Mass.: Ballinger. Institute for Law and Social Research 1976a Case Screening. Briefing Paper No. 2. Wash- ingon, D.C.: Institute for Law and Social Research. 1976b Uniform Case Evaluation and Rating. Brief- ing Paper No. 3. Washington, D.C.: Institute for Law and Social Research. 1977 Curbing the Repeat Offender: A Strategyfor Prosecutors.Washingon, D.C.: U.S. Govern- ment Printing Office. Kaplan, John 1965 The prosecutorial discretion. Northwestern Law Review 60:174-193. Klepper, Steven, Nagin, Daniel, and Tierney, Luke Jon 1983 Discrimination in the criminal justice sys- tem. Pp. 55-128 in Alfred Blumstein, Jac- queline Cohen, Susan E. Martin, and Michael Tonry, eds., Research on Sentenc- ing: The Search for Reform. Vol. II. Wash- ingon, D.C.: National Academy Press. Lazar Institute 1981 Pretrial Release: A National Evaluation of Practices and Outcomes. Washington, D.C.: Lazar Institute. Lindsey, Edward 1925 Historical sketch of the indeterminate sen- tence and parole system.Journal of Criminal La~v and Criminology 16. Martinson, Robert 1974 What works: questions and answers about prison reform. Public Interest 35:22~4.

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354 McNamara, Richard B. 1982 Constitutional Limitations on Criminal Pro- cedure. New York: McGraw-Hill. McNeely, R. L., and Pope, Carl E., eds. 1981 Race, Crime and Criminal Justice. Beverly Hills, Calif.: Sage Publications. Meehl, Paul E. 1954 Clinical Versus Statistical Prediction: A Theoretical Analysis and a Review of the Evidence. Minneapolis: University of Min- nesota Press. Mitford, J. 1973 Kind and Usual Punishment: The Prisoner's Business. New York: Knopf. Monahan, John 1981 Predicting Violent Behavior. Beverly Hills, Calif.: Sage Publications. 1982 The case for prediction in the modified des- ert model of criminal sentencing. Interna- tional Journal of Law and Psychiatry 5: 10~113. Monahan, John, and Steadman, Henry 1983 Crime and mental disorder: an epidemio- logical approach. Pp. 14~189 in Michael Tonry and Norval Morris, eds., Crime and Justice: An Annual Review of Research. Vol. 4. Chicago, Ill.: University of Chicago Press. Moore, Mark H. 1983 Invisible offenses: a challenge to minimally intrusive law enforcement. Pp. 17~2 in Gerald M. Caplan, ea., ABSCAM Ethics: Moral Issues and Deception in Law Enforce- ment. Washington, D.C.: The Police Foun- dation. Moore, Mark H., Estrich, Susan R., McGillis, Daniel, and Spelman, William 1983a Dealing With Dangerous Offenders, Vol. 1: Final Report. John F. Kennedy School of Government. Cambridge, Mass.: Harvard University. 1983b Dealing With Dangerous Offenders, Vol. 11: Selected Papers. John F. Kennedy School of Government. Cambridge, Mass.: Harvard University. 1984 Dangerous Offenders: The Elusive Target of Justice. Cambridge, Mass.: Harvard Univer- sity Press. Morris, Herbert 1976 Persons and Punishment. Pp. 31~3 in Her- bert Morris, ea., On Guilt and Innocence: Essays in Legal Philosophy and Moral Psy- chology. Berkeley: University of California Press. Morris, Norval 1974 The Future of Imprisonment. Chicago, Ill.: University of Chicago Press. CRIMINAL CAREERS AND CAREER CRIMINALS 1982 Madness and the Criminal Law. Chicago, Ill.: University of Chicago Press. Morris, Norval, and Miller, Marc 1985 Predictions of Dangerousness. Pp. 1-50 in Michael Tonry and Norval Morris, eds., Crime and Justice: An Annual Review of Research, Vol. 6. Chicago, Ill.: University of Chicago Press. Morris, Norval, and Tonry, Michael, eds. 1983 Crime and Justice: An Annual Review of Research. Vol. 3. Chicago, Ill.: University of Chicago Press. Nagel, Stuart, and Neef, Marian G. 1977 The Legal Process. Beverly Hills, Calif: Sage Publications. National Institute of Justice 1981 Pretrial Release: A National Evaluation of Practices and Outcomes. Washington, D.C.: U.S. Department of Justice. Packer, Herbert 1968 The Limits of the Criminal Sanction. Stanford, Calif.: Stanford University Press. Petersilia, Joan 1983 Racial Disparities in the Criminal Justice System. Santa Monica, Calif.: Rand. President's Commission on Law Enforcement and the Administration of Justice 1967a The Challenge of Crime in a Free Society. Washington, D.C.: U.S. Government Print- ing Office. 1967b Task Force Report: Juvenile Delinquency. Washington, D.C.: U.S. Government Print- ing Office. Rawls, John 1972 A Theory of Justice. Cambridge, Mass.: Harvard University Press. Reid, Robert 1979 The Invisible Victim. New York: Basic Books. Rhodes, William, Tyson, Herbert, Weekly, James, Conly, Catherine, and Powell, Gustave 1982 Developing Criteria for Identifying Career Criminals. Unpublished paper. Institute for Law and Social Research, Washington, D.C. Roth, Jeffery A., and Wice, Paul B. 1980 Pretrial Release and Misconduct in the Dis- trict of Columbia. Washington, D.C.: Insti- tute for Law and Social Research. Sellin, Thorsten, and Wolfgang, Marvin E. 1964 The Measurement of Delinquency. New York: John Wiley & Sons. Sherman, Michael, and Hawkins, Gordon 1981 Imprisonment in America. Chicago, Ill.: University of Chicago Press. Silberman, Charles E. 1978 Criminal Justice, Criminal Violence. New York: Random House.

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PURBLIND JUSTICE Singer, Richard G. 1919 Just Deserts: Sentencing Based on Equality and Desert. Cambridge, Mass.: Ballinger. Steffel, Linda 1977 The Law and the Dangerous Criminal. Lexington, Mass.: Lexington Books. Stone, Alan 1975 Mental Health and the Law: A System in Transition. Washington, D.C.: U.S. Govern- ment Printing Office. Szasz, Thomas 1977 Psychiatric Slavery. New York: Free Press. Twentieth Centur,v Fund 1978 Confronting Youth Crime. New York: Holmes and Meter. Twentieth Century Fund Task Force on Criminal Sentencing 1976 Fair and Certain Punishment. New York: McGraw-Hill. Underwood, Barbara 1979 Law and the crystal ball: predicting behavior with statistical inference and individualized justice. Yale Law Journal 88:1432-1447. van den Haag, Ernest 1975 Punishing Criminals: Concerning a Very Old and Painful Question. New York: Basic Books. Vera Institute of Justice 1976 Impact Evaluation of the VictimtWitness As- sistance Project's Appearance Management Activities. New York: Vera Institute of Justice. 1977 Felony Arrests: Their Prosecution and Dis- vosition in New York Citu Courts. New - York: Vera Institute of Justice. von Hirsch, Andrew 1976 Doing Justice: The Choice of Punishments. New York: Hill and Wang. 1981a Desert and previous convictions in sentenc- ing. Minnesota Law Review 65:591~34. 1981bUtilitarian sentencing suscitated: the Ameri- can Bar Association's second report on criminal sentencing. Rutgers Law Review 33:772-789. 1983 Commensurability and crime prevention. Journal of Criminal Law and Criminology 74:20~248. 1984a"Equality," "anisonomy," and justice: a re- view of"Madness and the Criminal Law." Michigan Law Review 82:109~1112. 1984b The eithics of selective incapacitation: obser- vations on the contemporary debate. Crime and Delinquency 30:17~194. 355 1985 Past and Future Crimes. New Brunswick, N.J.: Rutgers University Press. von Hirsch, Andrew, and GottlGredson, Don M. 198~Selective incapacitation: some queries about 1984 research design and equity. New York Uni- versity Review of Law and Social Change VII: 11~5. Vorenberg, James 1981 Decent restraint of prosecutorial power. Harvard Law Review 94:1521-1573. Walker, Nigel 1982 Unscientific, unwise, unprofitable or unjust? British Journal of Criminology 22:27 289. Weinreb, Lloyc} L. 1979 Denial ofJustice. New York: Macmillan. Wilson, James Q. 1983a Crime and Public Policy. Cambridge, Mass.: Harvard University Press. 1983b Thinking About Crime. 2nd rev. ed. New York: Basic Books. Winston, Kenneth 1974 On treating like cases alike. California Law Review 62:1~39. Wish, Eric D., Klumpp, Kandace, Moorer, Amy, Brady, Elizabeth, and Williams, Kristen 1981 An Analysis of Drugs and Crime Among Arrestees in the District of Columbia. Wash- ington, D.C.: U.S. Department of Justice. Withcomb, Debra 1980 Major Violator Unit, San Diego California: An Exemplary Project. Washington, D.C.: U.S. Government Printing Office. Wolfgang, Marvin E., and Tracy, Paul E. 1983 The 1945 and 1958 birth cohorts: a compar- ison of the prevalence, incidence and sever- it~v of delinquent behavior. In Mark H. Moore, Susan R. Estrich, Daniel McGillis, and William Spelman, eds., Dealing With Dangerous Offenders, Vol. Il.: Selected Pa- pers. John F. Kennedy School of Govern- ment. Cambridge, Mass.: Harvard Univer- sit~v. Zimring, Franklin L. 1977 Making the punishment fit the crime: a con- sumer's guide to sentencing reform. Univer- sity of Chicago Law School Occasional Pa- pers No. 12. 1978 Background paper. In Twentieth Century Fund, Confronting Youth Crime. New York: Holmes and Meier.