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OCR for page 314
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
OCR for page 315
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
OCR for page 316
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
OCR for page 318
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.
OCR for page 319
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
OCR for page 320
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
OCR for page 321
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
OCR for page 322
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
OCR for page 323
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
OCR for page 324
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
OCR for page 345
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
OCR for page 346
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
OCR for page 347
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
OCR for page 348
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
OCR for page 349
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
OCR for page 350
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
OCR for page 351
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
OCR for page 352
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.
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Representative terms from entire chapter:
von hirsch
