Criminal Careers and "Career Criminals," Volume II (1986) / Chapter Skim
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8. Purblind Justice: Normative Issues in the Use of Prediction in the Criminal Justice System
8. Purblind Justice: Normative Issues in the Use of Prediction in the Criminal Justice System
Pages 314-355
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From page 314... ...
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)
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From page 315... ...
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 perspective of moral intuitions about the fundamental values that animate the criminal 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 detailed consideration of aspects of predictions that seem to have normative significance; and from an inquiry into how the moral issues involving predictions differ
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From page 316... ...
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 consideration ofthe character and future concluct of the offender will leave more room for these aspects to be considered in criminal justice decision making (Monahan, 1982~.
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From page 317... ...
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.
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From page 318... ...
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 liabflities in the form of a longer sentence, higher bait, more determined prosecution, 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.
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From page 319... ...
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
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From page 320... ...
. Some would acl(1 reclucing fear to the utilitarian purposes of the CRIMINaL CAREERS AND CAREER CRIMINaLS criminal justice system (Moore et al., 1984:~22, esp.
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From page 321... ...
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 enhance the overall effectiveness ofthe system by drawing broad support from the community.
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From page 322... ...
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 inclivicluals (and for the overall character of the community)
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From page 323... ...
But the weight of the duty to make improvements where they can be found can be measured by asking what we would think of a criminal justice official who knowingly abandoned some opportunity to improve the fairness, justice, or efficiency of the system without significant loss to society. 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 disgraces our system of justice (Dershowitz, 1973:1277-1324; N
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From page 324... ...
Consequently, 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 predictive rule meet a high stanciarc!
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From page 325... ...
Moreover, since the community expects the system to be effective, and since criminal justice officials will respond to this demancI by making preclictions, it is in the interests of justice to make sure that the predictions are made as accurately and decently as possible. In effect, while it might be wrong in theory to use predictions in the criminal justice system, the system can be made to perform more effectively and more fairly than it does by explicitly introducing and managing predictive techniques (N.
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From page 326... ...
. is the .b CRIMINAL CAREERS AND CAREER CRIMINALS statement of a condition (membership in a defined group with .
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From page 327... ...
Ideally, legislatures rather than indiviclual administrative officials shouIc3 balance these competing interests. Obviously, this position simply drapes the utilitarian argument for precliction in the clothing of legislatively balanced risks and clue process protections for those who are about to be exposecl to enhanced criminal liabilities on largely utilitarian grounds.
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From page 328... ...
Attractive Qualities of Predictive Rules In thinking about the qualities that make systems of prediction more or less acceptable or virtuous, it is worth clistinguishing features of the predictive rule itself and the circumstances under which the rule is appliect. At least five important qualities of the predictive test or rule can be examined.
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From page 329... ...
Thus, a narrow, discriminating focus is to be preferred on both retributive and utilitarian grouncts to predictive rules that place more offenclers in special categories. Accuracy of the Predictive Test A second important feature of the predictive rule is its accuracy.
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From page 330... ...
This honors the principle of individualized justice (but it sometimes jeopar CRIMINAL CAREERS AND CAREER CRIMINALS dizes, or at least complicates, the principle of like cases being treated alike)
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From page 331... ...
Other retributivists think that it might be just to enhance penalties for those with criminal records not because criminal records necessarily preclict well but because they reveal the offender as unusually persistent and therefore unusually (reserving of punishment (von Hirsch, 1976:84-944. Thus, while these reasons for considering criminal record are different from those held by the "morlifiecl retributivists" and the "utilitarians," many retributivists would allow criminal record to influence the extent of punishment and control asserted by the system.
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From page 332... ...
to an CRIMINAL CAREERS AND CAREER CRIMINALS offender, they are the only acts that could justify any additional penalty or control. The argument for allowing indictments and convictions is weaker and relies much more heavily on a utilitarian justi fication: since indictments and arrests can only be made on the basis of enough evidence to establish "probable cause" to believe that an offense occurred and that the particular suspect committed the of fense, since inclusion of information on indictments and arrests seems to improve the accuracy of predictions of future crim inal activity, and since this information is aIreacly widely used in the criminal jus tice system, it is tolerably just to use this information.
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From page 333... ...
On one hand, from a retributive perspective, a juvenile record of criminal offenses seems appropriate to use because it is part of a criminal record inclicating persistent criminal activity. On the other hand, we tend to view juvenile offenses as less under the control of the offenders-and therefore less indicative of intent and character than aclult offenses (Institute for Judicial Administration, 1977:11.
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From page 334... ...
Thus, characteristics involving criminal conduct were treated as more acceptable than variables describing noncriminal conduct or statuses, and concessions to utilitarian interests in crime control were macle on the basis of the accuracy with which such variables were measured rather than in terms of the nature of the variables themseIves. This position undoubtecITy goes too far for retributivists and not far enough for utilitarians, but those features CRIMINAL CAREERS AND CAREER CRIMINALS may be the virtues rather than the vices of the position.
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From page 335... ...
Alternatively, administrative agencieseither correctional systems, criminal justice planning agencies, or specially establishec] commissions-might be the proper authors of predictive rules.
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From page 336... ...
be commensurate with the CRIMINAL CAREERS AND CAREER CRIMINALS significance of the harm to be reduced and the sanction to be imposer] on inctividuals predicted to be dangerous and that prediction is more justified when it involves people who have been convicted of criminal offenses have important and subtle implications for the appropriateness of using predictive methods at different stages of the criminal justice system.
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From page 337... ...
The principle that the quality of predictive tests should be commensurate with the significance of the social harm to be avoided and the sanctions to be imposed , this is particularly true for those who are most likely to be exposed to prediction methods, namely, those who have been convicted of prior offenses. In sum, the application of predictive rules may itself have qualities that enhance or detract from the overall fairness, justice, or efficacy of the predictive rules.
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From page 338... ...
retributive principles to the exclusion of utilitarian interests in overall crime control effectiveness and in making incremental improvements in criminal justice system operations. CRIMINAL CAREERS AND CAREER CRIMINALS In discussing issues of prediction at different stages of criminal justice system processing, we cannot escape from the general shape of this argument.
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From page 339... ...
41, 19781. This sentencing philosophy also tapped an important moral current: the notion that justice must recognize that crimes emerged not simply from evil intentions of offenders but also from social circumstances; that there must, therefore, be mitigating facts behind many criminal offenses; and that the best form of justice would be one that tailored social res~onses to the guilt of the offender and gave the offender the best chance for rehabilitation.
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From page 340... ...
The second is that, while exactly how much punishment is deserved by a given criminal offense is somewhat indeterminate, it is possible to establish a rank ordering of the reprehensibility of criminal acts ant] that rank ordering must be rigorously preserved in the ordering of punishments meted out (von Hirsch, 1983:21~214, 221-230, 1984a: 10971.
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From page 341... ...
Obviously, if the bands around offenses are sufficiently wide, and if there is no rigorous principle requiring that similar offenses be treated similarly, utilitarian concerns could determine everything within the hollow shell of retributive principles. And it is this that focuses von Hirsch's criticisms (1981b:772-789, esp.
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From page 342... ...
Reprinted with permission. CRIMINAL CAREERS AND CAREER CRIMINALS defendants (Freed, 1982)
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From page 343... ...
The court also ruled that the Fifth Amenc3ment's clue process clause was not violated by the preventive detention statute. Opponents ofthe statute objected on grounds that it permitted punishment of the defendant prior to full adjudication of the case.
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From page 344... ...
CRIMINAL CAREERS AND CAREER CRIMINALS Prosecution To some, the prosecutor seems the most powerful criminal justice official partly because his or her decisions are consequential for defendants but even more importantly because the prosecutor has broad discretion to make the choices (Vorenberg, 1981:1521-1573~. The prose cutor can quash charges, make a deal to trade information for a forgone prosecu tion, threaten a defendant with serious charges, and determine when a case will go to trial.
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From page 345... ...
The rekibutive 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 justification is that offenders who have committed crimes repeatedly in the past are particularly likely to commit crimes in the future, anti, therefore, it is particularly valuable to focus scarce prosecutorial time on ensuring that these unusually dangerous offenders will be punished and incapacitated.
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From page 346... ...
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 acljusting 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, religion, 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 constitutional rights, such as freedom of speech, assembly, and religion (CarclinaTe and Feldman, 1978:659-692; Vorenberg, 1981~.
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From page 347... ...
If establishec! legal principles are not a bar, what about moral intuitions?
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From page 348... ...
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 offenclers (von Hirsch, 1981a:599~. All this seems to strike a nice balance between the community's interests in simultaneously engaging state power to protect a limited number of community values and preventing the state itself from becoming too powerful and intrusive.
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From page 349... ...
The act is important not only in itself but also and most fundamentally as an objective piece of evidence about the intentions, values, and character of citizens. If this interpretation were accepted, it would also help to explain why most peopIc- inclucling many retributivistsbelieve 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 offenses.
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From page 350... ...
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 intentions and values of offenders incleec]
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From page 351... ...
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 economical in the use ofthe state's moral and financial capacity to punish and control.
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From page 352... ...
Washington, D.C.: National Academy of Sciences. CRIMINAL CAREERS AND CAREER CRIMINALS Blumstein, Alfred, Cohen, Jacqueline, Martin, Susan E., and Tonry, Michael, eds.
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From page 353... ...
Freed, Daniel 1982 Dangerous Offenders and the Bail Process: Protecting Public Safety Without Preventive Detention. Unpublished paper.
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From page 354... ...
Chicago, Ill.: University of Chicago Press. CRIMINAL CAREERS AND CAREER CRIMINALS 1982 Madness and the Criminal Law.
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From page 355... ...
New York: Vera Institute of Justice. von Hirsch, Andrew 1976 Doing Justice: The Choice of Punishments.
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