Modern Day Minority Report


(Fair Warning- this is long.)

I had no idea this was going on, but it is terrifying:

IN a recent letter to the United States Sentencing Commission, Attorney General Eric H. Holder Jr. sharply criticized the growing trend of evidence-based sentencing (.pdf), in which courts use data-driven predictions of defendants’ future crime risk to shape sentences. Mr. Holder is swimming against a powerful current. At least 20 states have implemented this practice, including some that require risk scores to be considered in every sentencing decision. Many more are considering it, as is Congress, in pending sentencing-reform bills.

Risk-assessment advocates say it’s a no-brainer: Who could oppose “smarter” sentencing? But Mr. Holder is right to pick this fight. As currently used, the practice is deeply unfair, and almost certainly unconstitutional. It contravenes the principle that punishment should depend on what a defendant did, not on who he is or how much money he has.

The basic problem is that the risk scores are not based on the defendant’s crime. They are primarily or wholly based on prior characteristics: criminal history (a legitimate criterion), but also factors unrelated to conduct. Specifics vary across states, but common factors include unemployment, marital status, age, education, finances, neighborhood, and family background, including family members’ criminal history.

Such factors are usually considered inappropriate for sentencing; if anything, some might be mitigating circumstances. But in the new, profiling-based sentencing regimen, markers of socioeconomic disadvantage increase a defendant’s risk score, and most likely his sentence.

Advocates of punishment profiling argue that it gives sentencing a scientific foundation, allowing better tailoring to crime-prevention goals. Many hope it can reduce incarceration by helping judges identify offenders who can safely be diverted from prison.

While well intentioned, this approach is misguided. The United States inarguably has a mass-incarceration crisis, but it is poor people and minorities who bear its brunt. Punishment profiling will exacerbate these disparities — including racial disparities — because the risk assessments include many race-correlated variables. Profiling sends the toxic message that the state considers certain groups of people dangerous based on their identity. It also confirms the widespread impression that the criminal justice system is rigged against the poor.

It is naïve to assume judges will use the scores only to reduce sentences. Judges, especially elected ones, will face pressure to harshly sentence those labeled “high risk.” And even if risk scores were used only for diversion from prison, it would still be wrong to base them on wealth and demographics, reserving diversion for the relatively privileged.

Evidence-based sentencing also raises serious constitutional concerns. The Supreme Court has consistently held that otherwise-impermissible discrimination cannot be justified by statistical generalizations about groups, even if those generalizations are on average accurate. People have a right to be treated as individuals, and individuals often do not conform to group averages.

Quite obviously, this is insane. What they are doing is essentially using a statistical analysis to determine who is most likely to commit another crime, and then sentencing them accordingly. Score well on the statistical analysis, and by scoring well, show positive signs in the so-called objective criteria that they have chosen to review, and your sentence will be lighter. Score poorly, your sentence will be harsher because the analysis shows you might have a propensity for recidivism and must be incarcerated longer. And you thought pre-crimes were just for sci-fi books and movies!

Many, many moons ago when I was a young Political Science major, I spent a summer interning at a probation office. Like all aspects of the judicial system, it was radically underfunded, and there were nowhere near enough probation officers for the number of “clients” we had to attend to and the requirements passed down for contact with the PO after sentencing. Additionally, the Probation Office had a number of other tasks that we performed for the court, and one the most laborious tasks was conducting and writing pre-sentence investigations. Since I liked to write, was the only male and military (a lot of these guys were rapists and abusers and molesters and they scared the younger women in the office), I took over those duties for the summer. I was actually so good at it that they hired me on in the fall to keep doing them because they had such a backlog.

At any rate, what I would do is grab my notebook and head next door to the County Jail, and I would interview people who had been convicted of a crime but were yet to be sentenced. The interviews could take up to two hours, and I would ask them about their background, their education, their family life, how they found themselves in the situation and why they did what they did, past histories of sexual, physical, and substance abuse, and so on. I would then head back to the office, type it all up (they were usually 15-20 page documents, sometimes shorter, sometimes longer, depending on how much the inmates would open up to me), keep a copy for our files, pass one off to the Judge, the DA’s office, and the defense team. They would then use that information to get to know more about the person and their past and state of mind, and the judge would use that to help him formulate the sentence.

Quick sidebar- one of the judges I worked closely with was Larry Starcher, who later was a member of the state Supreme Court. He was a liberal Democrat, and I was at the time a blossoming fascist Republican, so we had differing opinions on a lot of things, but I really, really liked the guy and it’s funny how much I learned from him and still remember. I remember one case in which I did the pre-sentence investigation, and it was a child molester who had been convicted of multiple accounts of abuse on victims ranging from infant to pre-teen. He was a wretched human being- everything about him exuded filth and evil and bad intent, and if his body odor had not been so horrific I bet I would have smelled sulfur. The interview was particularly contentious, with him issuing various threats and just generally being an asshole. I have always been against the death penalty, but this guy tested my principles.

At any rate, his sentencing came, and I was sitting in court (another PO obligation is one of us had to be in court for sentencing), and a seemingless endless stream of family members testified about what a wonderful man the convicted was and that the Judge should be lenient. I just sat there chuckling, wondering if we were talking about the same person. Judge Starcher sentenced him (harshly, and Starcher was always a judge who would be willing to work with alternate sentencing and had a reputation among the right as being too lenient, but he nailed this guy’s balls to the walls). After the sentence, we were chatting, and I mentioned that I just could not believe that all those family members had the lack of shame to testify about how swell he was when he had molested kids in the family. Starcher paused, looked at me, and said “If your family isn’t going to come to bat for you, who will,” basically challenging me to look at the convicted from a different angle that maybe I had not seen.

That always stuck with me.

Back to the point. I have no problem with looking at a person’s history and who he is and what he has been and using that information to coming to an appropriate sentence. But it is subjective, and each person is treated as an individual and a human being, not merely the sum of collective data points. That’s what is happening here, and it is quite terrifying.

Additionally, as AG Holder noted (.pdf) (and should be blatantly obvious to everyone), this is problematic in more ways than one:

First, most current risk assessments – and in particular the PCRA, which is specifically mentioned in the pending federal legislation – determine risk levels based on static, historicaloffender characteristics such as education level, employment history, family circumstances and demographic information. We think basing criminal sentences, and particularly imprisonment terms, primarily on such data – rather than the crime committed and surrounding circumstances – is a dangerous concept that will become much more concerning over time as other far reaching sociological and personal information unrelated to the crimes at issue are incorporated into risk tools. This phenomenon ultimately raises constitutional questions because of the use of groupbased characteristics and suspect classifications in the analytics. Criminal accountability should be primarily about prior bad acts proven by the government before a court of law and not some future bad behavior predicted to occur by a risk assessment instrument.

Second, experience and analysis of current risk assessment tools demonstrate that utilizing such tools for determining prison sentences to be served will have a disparate and
adverse impact on offenders from poor communities already struggling with many social ills. The touchstone of our justice system is equal justice, and we think sentences based excessively on risk assessment instruments will likely undermine this principle.

Third, use of risk assessments to determine sentences erodes certainty in sentencing, thus diminishing the deterrent value of a strong, consistent sentencing system that is seen by the community as fair and tough. Our brothers and sisters in the defense and research communities have repeatedly cited research to the Commission about the value and efficacy of certainty of apprehension and certainty of punishment in deterring crime. Swift, certain and fair sanctions are what work to deter crime, both individually and across society. We know that certainty in sentencing – certainty in the imposition of a particular sentence for a particular crime, and certainty in the time to be served for a sentence imposed – simultaneously improves public safety and reduces unwarranted sentencing disparities. We are concerned that excessive reliance on risk tools will greatly undermine what has been achieved around certainty of sentencing in the federal system.

Determining imprisonment terms should be primarily about accountability for past criminal behavior. While any effective sentencing and corrections policy will take account of
future behavior to some extent – incapacitating those more likely to recidivate and utilizing effective reentry efforts to reduce the likelihood of recidivism – we believe the length of imprisonment terms should mostly be about accounting for past conduct. As analytics evolve, we are concerned about the implications of sentencing policy moving away from this

It’s really hard to believe that prison “reformers” could come up with something worse than mandatory minimums or three strikes you’re out, but they did. This is a problematic process for any number of reasons.

1. It separates punishment from the crime, which should be the focus of sentencing. Again, IANAL, but I thought we punished people for the crimes they committed, not the crimes they might commit or the sins of their family and friends. Additionally, the old axiom “You do the crime, you do the time” is now “You do the crime, you do the time, depending on who you are.” This has always been the case in some form or other, and that has always been a bad thing. This, however, takes the previous subjective disproportionate sentencing that we have tried to eliminate (racial disparities in sentencing (.pdf), etc.) and essentially codifies it, giving a veneer of objectivity.

2. The veneer of objectivity is just that- a facade. Anyone who has ever worked with social science data sets knows full well that the results that come out of any analysis depend on the data you enter, so depending on what variables you use to determine the propensity to commit future crime, you could come up with wildly varying results. There is even a saying for it- garbage in, garbage out,” and you all have heard “Lies, damned lies, and statistics.” It’s why even when using the simplest form of survey questionnaire all the items are pored over and why even the simplest measure, say something like the PRCA-24 (Personal Response of Communication Apprehension), is refined and refined and all the items are factor analyzed so that you are sure you are measuring what you actually think you are measuring and that all the items of the measure correlate internally (long time since I have done this, so my terminology may be off).

According to the Center for Sentencing Initiatives, there are a number of different instruments being employed currently, and this is a sample of the criteria considered in so-called evidence-based sentencing are:

Instrument Content:

The COMPAS Core assessment for adult offenders contains both static and dynamic factors. Content may be individually tailored based on jurisdictional needs and resources, but can include 4 risk and 4 need scales:

Risk: failure to appear, non-compliance (technical violations), general recidivism, violent recidivism

Criminogenic needs: cognitive, behavioral, criminal associates/peers, criminal involvement, criminal opportunity, criminal personality, criminal thinking (self-report), current violence,
family criminality, financial problems, history of non-compliance, history of violence, leisure/boredom, residential instability, social adjustment, social environment, social
isolation, socialization failure, substance abuse, vocation/education

How smart you are, who your friends are, who your family members are, how much education you have, how much money you have, your employment history, etc.

As we know, poor and minorities are likely to have less educational attainment, fewer job prospects, lower incomes and less accumulated wealth, etc., so using these variables as indicators of future crimes can come up with wildly different outcomes depending on the person’s background, and is far more likely to advocate for harsher prison sentences for those less well off. Consider two cases:

    A 35 year old white male auto mechanic has a gambling problem and is in enormous debt. He has a steady job, completed High School, owns a house in a good neighborhood and a car, is married, and has two kids. There is no history of criminal activity in his past other than a drunk and disorderly, a couple speeding tickets, and an altercation in his 20’s. No one in his immediate family is incarcerated or has a felony conviction. He is at the end of the rope and completely desperate and afraid of those he owes his gambling debts, so in order to pay off his gambling debt, he robs a convenience store at gunpoint, is caught and convicted. He shows up in court wearing his Sunday suit.

    A 35 year old black male, a HS dropout with a spotty employment record and few opportunities for employment has two kids and lives in government subsidized housing in a not so good neighborhood and relying on 200 bucks a month in food stamps. His only criminal record are a couple petty larcenies as a young adult and a possession of marijuana charge. his brother is currently in jail for assault, and several of his extended family members have records. His kids are starving, so at his wits end, he robs a convenience store at gunpoint. He shows up in court wearing his best outfit- a borrowed button down and out of style tie and fraying slacks.

Using what we know about the data they are entering into this analysis, which one do you think is going to come back flagged as more likely to commit another crime in the future? Exactly. The data falsely gives a veneer of objectivity to what is actual subjective, because we are choosing what data to enter into our formula. That isn’t even getting into the proprietary nature of some of these measures and that the intellectual property is owned by private enterprise, not the public sector.

3. All of this allegedly objective evidenced based sentencing analyses are even before the openly subjective decisions that the judge can and will make, and should anyone question the judge for racial disparities in his sentencing, he can simply point to the analysis and say he used the data that was given to him. In addition to the other problems with this, it provides a codified excuse for racist judges and make the work of the Civil Rights division of the DOJ damned near impossible.

4. It takes away the humanity of the criminal and makes him just another number. Dehumanizing people makes it easier (NPR podcast on the subject here, .mp3) to be casually cruel and indifferent about how you treat them. See also, nip, Kraut, Red, untermensch, and all the other examples you an think of like this.

5. What we are essentially doing is we now live in a society where there is structural financial (.pdf) and educational inequality between disparate ethnic and racial populations, and we have created basically a permanent underclass that is rarely talked about other than in liberal publications and sociology texts. With this type of approach to sentencing, we are merely exacerbating the existing cycle. Everyone on the right says that a stable home and a mother and father are some of the best things to keep people from run-ins with the laws and growing up as productive members of society, but with this we are creating an unbreakable chain. Already, hundreds of thousands of minority children have parents in the system, and this will just make things worse, with poor and minorities spending more time in prison and less time doing the things that most of us agree will help them and their family.

I’m sure there are a lot more points I am overlooking, but these are just the basics that I can think of off the top of my head. This is an awful, awful development, and I would not be surprised if the prison/industrial complex is a behind the scenes pushing this. I’d bet my bottom dollar that a group like ALEC is behind this.

Oh, and the whole name “evidence-based sentencing” is a load of horseshit. There are rules for evidence in the courtroom, and they are strictly controlled, and the only evidence that should be considered during deliberations and sentencing is actual evidence, not subjective horseshit (and this is subjective, because it is based on the data you input, a subjective decision) masquerading as fact.

*** Update ***

Edited to add links I forgot to add.

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85 replies
  1. 1
    Dog On Porch says:

    It’s Admiral Poindexter’s world, and we all just live in it.

    Remember the outrage? Remember that Poindexter was fired for his remarks?

  2. 2
    Scamp Dog says:

    I generally like the idea of data- and evidence-based decision making, but this pretty much instantly turns into “kick ’em when they’re down.” Bad idea.

  3. 3
    Hunter Gathers says:

    Evidence Based Sentencing – locking up ‘those people’ for longer periods of time so the privatized prison system can continue to pay out stock dividends to Wall Street criminals. Rob the Quick Stop, you’re a petty thief who deserves to rot in jail. Steal millions from pension funds, employee retirement accounts or sell off your company to overseas interests while making sure your millions are taxed at a lower rate than actual labor, why you’re a Captain of Industry, and should run for POTUS.

  4. 4
    Cassidy says:

    But is this worse than the degradation of sitting in a Walmart check out line?

  5. 5
    Kathleen says:

    I heard an interview on NPR about this topic and I was aghast. Couldn’t find links for that, but found a recent op-ed piece in the NY Times:

    Thanks for addressing this, John.

  6. 6
    Baud says:

    I hadn’t realized this was occurring. Thanks for the post, JC.

  7. 7
    Botsplainer says:

    IN a recent letter to the United States Sentencing Commission, Attorney General Eric H. Holder Jr. sharply criticized the growing trend of evidence-based sentencing (.pdf), in which courts use data-driven predictions of defendants’ future crime risk to shape sentence

    Using quants to make predictions just like credit scoring? What could possibly go wrong?

    It isn’t as if we have any recent examples of the predictive power of economic scoring being wrong or anything.

  8. 8
    Mr. Longform says:

    It’s more Big Data abuse – since stirring together a million factoids leads to a statistically provable outcome in some percentage of cases, all cases will be treated identically. Fine if you are talking about picking the right color of cushions to please your customers; not so fine when the percentage includes human beings. Human rights – the quaint notion that people should be treated as individual, valuable entities just because they are human beings. Not numbers.

  9. 9
    Laertes says:


  10. 10
    EMD says:

    I actually worked on developing a formula like this once, but it was for granting parole. However, we strove to remove any factor (such as race, or proxies for socioeconomic status) that would bias the formula against the poor or minorities. Mostly the formula looked at prior criminal behavior, the charges underlying the current incarceration, and age (which is a huge, huge factor when it comes to determining the likelihood of committing a crime).

    There are several differences between what we did and what this article details. First, our measure did not affect sentencing as everyone measured by our system was already sentenced. Second, granting parole is inherently a subjective activity and our measure was intended as merely one tool to be used in decision making. Third, we very strenuously avoided the types of proxies for “poor and minority” that are very clearly included in these sentencing formulas. Fourth, our efforts were completely transparent and not for profit. The idea that secret, proprietary guidelines generated by for-profit companies are being used to influence sentencing is outrageous.

    I am obviously not inherently opposed to using objective research to influence decision-making in the criminal justice system. It can be useful to have some science to back up our intuitions about what certain categories of inmates – sex offender v. mugger, 22 year old v. 35 year old – are likely to do in the future. But this is very treacherous territory, and these measures should be used judiciously and only as a supporting tool; after all, every offender is an individual and judges and parole boards should first take the individual into account. Using socioeconomic data to influence sentencing is pretty much the exact opposite of the best possible approach.

  11. 11
    Betty Cracker says:

    Thank god for Eric Holder.

  12. 12
    Brendan in Charlotte says:

    This type of thing is a feature, not a bug, when it comes to many prison “reformers”. The reformers who push this are, naturally, in the employ of the privatized prison system; which stands to make money off the longer sentences.

    It appears that every time we are successful in righting some wrongs, as they apply to the Criminal Justice system; someone’s there to undo the progress.

  13. 13
    Villago Delenda Est says:

    The American Criminal Justice system isn’t about justice.

    It’s about careers.

  14. 14
    lol says:

    Who will be the first glibertarian to favorably compare this to hate crime legislation?

  15. 15
    Tissue Thin Pseudonym (JMN) says:

    @Dog On Porch: Admiral Poindexter was fired for selling arms to the Iranians and giving stuff to the Contras. I’m not sure who you’re talking about.

  16. 16
    SatanicPanic says:

    Damn Cole, this is some good writing:

    “He was a wretched human being- everything about him exuded filth and evil and bad intent, and if his body odor had not been so horrific I bet I would have smelled sulfur. “

  17. 17
    Ruviana says:

    If you liked this post and want to feel even more depressed about, well, just about everything, Matt Taibbi’s most recent book covers this and also makes an argument that the increased policing of the poor and the utter lack of policing of the wealthy is intentional and increasing. Basically, it sucks to be poor and the category of “poor” is growing daily. It is of course worse for those of color.

  18. 18
    Baud says:

    If you want to kill this plan, you need to start a movement to make gun ownership one of the factors for predicting future dangerousness.

  19. 19
    chopper says:

    man, if there’s a better example of ‘correlation does not imply causation’ I haven’t seen it in some time.

  20. 20
    BGinCHI says:

    I’m pretty sure Howard “Bunny” Colvin explained all of this to us in The Wire.

    It’s just a game, and the loser is always predetermined.

  21. 21
    srv says:


  22. 22
    Big R says:

    Speaking as a political scientist and a lawyer (seriously; mild-mannered practicing lawyer by day…um, also mild-mannered political science graduate student…also by day; spicy Latin lover by night), I can say two things:

    1) This is a textbook example of the ecological fallacy. You cannot reason from a population to an individual; nor, in truth, can you really go from a sample to an individual. In short, this isn’t “evidence-based sentencing”; it’s “pseudo-science to give our racism a veneer of respectability.”

    2) If I had a client who was sentenced with the use of this type of data, I would be screaming to the court of appeals in about half a minute. Absent a legislative command, this is so very obviously unconstitutional as to be summarily reversible; and even with a legislature that requires this, I would argue that substantive due process forbids it.

    Big R + 3 (cats, not drinks; one on my lap, one on my printer, and one on my desk)

  23. 23
    Dolly Llama says:


    First, our measure did not affect sentencing as everyone measured by our system was already sentenced.

    When you’re talking about whether to grant someone parole, it’s a distinction without a difference, no?

  24. 24
    Seanly says:

    Great post, John.

    The data falsely gives a veneer of objectivity to what is actual subjective, because we are choosing what data to enter into our formula.

    That’s the biggest chestnut in the whole thing.

    How does this practise not violate 4th, 6th, 7th & 8th Amendments?

  25. 25
    Omnes Omnibus (the first of his name) says:

    A judge in a criminal case needs as many fats about the newly convicted person as possible in order come up with a fair sentence. Most of my experience with this has been in federal court where judges are given a fairly complete and objective factual summary of the person’s life and the nature of the the crime. The judge is also given a recommended sentence. At that point, the judge makes a decision. At the state level, as Cole noted, funding for a good presentencing report is often lacking. Things like evidence based sentencing will not make the system better. To me, if seems like conscientious judges will not get good, objective data, and shitty judges will get an excuse to throw the book at certain types of convicts.

  26. 26
    Pogonip says:

    @Ruviana: I wonder what will happen when we’re all poor?

  27. 27
    Mike in NC says:

    The USA represents about 5 percent of the world’s population, but it houses around 25 percent of the world’s prisoners. Go USA!

  28. 28
    BGinCHI says:

    The system is full of Philip K. Dickishness.

  29. 29
    skerry says:

    @Tissue Thin Pseudonym (JMN): Poindexter was also the head of the DARPA Information Awareness Office under Bush Jr. Check out what he tried to do there. Google “Total Information Awareness” to start.

  30. 30
    Ruckus says:

    I’m not convinced that we have real justice in this country but having this type of sentencing would for sure convince me that we don’t.
    If you are going to jail me for the crime of not having enough money, what do I have to lose to take some of yours? If you are going to jail me for the crime of not having enough money could we at least call this what it is, slavery? Because that’s what this will lead to. And of course it will be mainly minorities that are affected at first.
    This is puritanism and racism at their worst. Which is a pretty fucking low bar.

  31. 31
    🚸 Martin says:

    Why not just use the defendant’s FICA scores? Since a low FICA means you can’t get a job either, prison seems even more appropriate as a destination.

  32. 32
    lurker dean says:

    This new John Cole guy is killing it lately, lol.

  33. 33
    Svensker says:

    The idea that everything can be quantified is one of the things tearing apart our culture and our country, bit by bit. It all comes down to metrics, no thought or wisdom or humanity involved.

    Seems that C.S. Lewis nailed it in That Hideous Strength. Who knew?

  34. 34
    Baud says:

    @Omnes Omnibus (the first of his name):

    A judge in a criminal case needs as many fats about the newly convicted person as possible in order come up with a fair sentence.

    Is that what they mean by “pound of flesh”?

  35. 35
    MattF says:

    @🚸 Martin: Well, now… Doesn’t this suggest a teensy problem with FICA scores?

  36. 36
    bmoak says:

    Anyone want to guess what percentage of the twenty states that use this for sentencing are former members of the CSA?

  37. 37
    chopper says:



  38. 38

    In a way we’ve been doing this kind of things for decades. 20+ years ago when I was a probation officer for the state of FL, I did both pre and post conviction sentencing reports–basically risk assessments. Back then the two biggest factors in recidivism for those on community supervision were known to be employment and positive family support. The inclusion of these things was actually a reform, meant to help offenders by putting them in the situation that would most likely lead to more positive results. Unfortunately, the why of it got lost in the implementation. It became a factor in how they were punished instead of how they were helped. And this came about during the Reagan and Clinton years and it’s only picked up steam since then.

    So judges would often sentence someone with a job and/or a stable home to live in to serve their sentence under community supervision and of course that meant that the poor would be more likely to go to jail. And the ability of a person who has been incarcerated to recover their lives was and still is infinitely more difficult than that of a person who was lucky enough to serve their sentence in the community. Basically it was always unfair.

    It did get better over time in some jurisdictions but this was due only to 1) the progressive nature and quality of the judges 2) the quality of community resources (e.g., semi-independent living for the mentally ill, advocacy organizations that helped people coming out of the system to find jobs and homes, drug treatment programs with living spaces, etc) and 3) the progressive nature and quality of the officers doing the risk assessment. An officer could shade and characterize things to suit their own bias against the offender or they could choose to help.

    For instance when we did a psi report one of the things we had to do was investigate the home address they proposed to live in. If they didn’t have one, the officer could contact family members–often people who cared about the offender but were not informed as to what was going on in their case. I don’t know how many times I was able to find a family member who was willing to take the offender into their homes but it was only because I tried to find them a place. Or if they were mentally ill try to find a bed in a group home for them somewhere. 99% of officers just left it at “they’ve got no place” so they aren’t suitable for community supervision.

    That bias is now being given steroids by adding in things that the offender has no control over whatsoever. If their parents or siblings are assholes, how is that their fault? And, of course, the problem is that these things should never have been a part of the sentencing equation in the first place. The ONLY thing they should have ever been considered for was in how to treat and help offenders. Unfortunately this country is so wed to being “tough on crime” that they’ve lost sight of the ultimate goal which is not only equality before the law but also reducing recidivism not just for society’s sake but for the individual’s sake as well.

  39. 39
    Seanly says:

    The reason I included the 6th Amendment is that the formula is being used essentially as a witness. If the formula is some corporate secret, how can I successfully defend against the accusations from that formula about how I should be sentenced?

    Even though I am an atheist, “That Hideous Strength” is one of my favorite books.

  40. 40
    Omnes Omnibus (the first of his name) says:

    @Baud: “If you cut us, do we not bleed?” I noticed the stupid typo after the edit window had closed.

  41. 41
    Baud says:

    @Omnes Omnibus (the first of his name):

    No worries. If I post three comments in a row without a typo, you’ll know my identity has been hijacked.

  42. 42
    Matt McIrvin says:

    Giving somebody a really long sentence increases their risk of recidivism, doesn’t it? So if the sentence is dependent on risk of recidivism, we could work in some positive feedback. Increase the gain beyond 1 and everyone’s risk is infinity!!

    tap.. tap… Is this thing on? *SCREEEEEE*

  43. 43
    MattF says:

    @Matt McIrvin: Unless they die before the sentence ends. I don’t know the statistics of life expectancy in prison, but I suspect it’s not so good.

  44. 44
    Citizen_X says:

    This is, as others have pointed out, pure pseudoscience; a great example of false quantification (& thanks for bringing it to our attention). But I guarantee you that if a hue and cry goes up about this practice, the right will yell, “See? It’s the liberals who are anti-science! We just want to put sentencing on a fair, rational foundation!”

  45. 45
    BGinCHI says:

    Prison is the new plantation.

  46. 46
    MattF says:

    @Citizen_X: Not so much pseudoscience as misapplication of statistics. You can’t use statistics to make predictions about individuals. Period.

  47. 47
    muddy says:

    @lurker dean: I was just thinking the same! And now Chrome works again, is it fixed for you?

  48. 48
    Suffern ACE says:

    Another case of how did this get rolled out in so many states so quickly?

  49. 49
    Tissue Thin Pseudonym (JMN) says:


    Not so much pseudoscience as misapplication of statistics. You can’t use statistics to make predictions about individuals. Period.

    Not true. Absolutely, positively not true. People do this successfully all the time. In a different context, I can make predictions about individual minor league pitchers and what kind of major leaguers they will be based upon their statistics as minor leaguers. Those predictions will be far, far more accurate than random selection.

    What you can’t do is make precise predictions about individuals from statistics. In the above example, even though I’d be more accurate than random chance I’ll be far, far less than perfect in my predictions. In fact, I’ll be significantly wrong more often than I’m dead right. But I can still make predictions.

    What’s unfair about this isn’t that you can’t make predictions. I’m certain that if these tables were strictly applied that on average, the percentage of people who reoffend would go down and those incarcerated longer would be disproportionately likely to end up back in the judicial system if they weren’t.

    What’s unfair about it is that, unlike deciding which 19-year old pitchers to sign, we reasonably demand that those within the justice system be treated as individuals and that their punishment be determined as such, not by group characteristics. We are prepared, or at least should be, to allow for a higher overall level of crime in order that each person be judged by who they are and what they have done.

  50. 50
    Mike S says:

    @muddy: This is a great post John, I’m so glad the real John Cole is back!

    p.s. Chrome has been working for me on B-J since Sunday.

  51. 51
    rikyrah says:

    thanks for the link to this, Cole.

    Of course this is wretched and racist to the core.

    Prison reformers my Black ass.

  52. 52
    The Other Chuck says:

    @Seanly: You forgot that the only amendment that matters is the 2nd. And maybe the 10th.

  53. 53
    rikyrah says:

    the same folks pushing this, are the same ones that refuse any monies for re-entry programs of former felons into society.

    also believe they are against restoring voting rights to ex-felons.

    bet on it.

  54. 54
    James Hare says:

    Not to bring up a sore subject but this is some of the best writing I’ve seen from Mr. Cole in my history of reading this blog (which has been going on for quite awhile now). Obviously getting off the sauce has had salutary effect. Hope you’re feeling better in addition to thinking better — you have written the best takedown of this nonsense I’ve read, even including Holder.

  55. 55
    Villago Delenda Est says:

    @Suffern ACE: ALEC, I’d guess.

    Everyone involved with it needs to be put to death. I’m not kidding.

  56. 56
    RSR says:

    regarding ‘the formula’ – what is it? Is it some proprietary thing that is a trade secret and therefore to be kept secret (like value added formulae of education reform)? Is this yet another way to privatize a function that should be left solely to the government: punishing citizens?

    If the formula is kept secret, there is no way to confirm its validity and reliability. (Not that would justify its use for such purposes.)

  57. 57
    lurker dean says:

    @muddy: aha – i had resigned myself to using FF for BJ. thanks for the heads up, it does seem to work on chrome now, i’m using it for this post.

  58. 58
    Villago Delenda Est says:

    @MattF: “Oh, people can come up with statistics to prove anything. 14% of people know that.” — Homer Simpson

  59. 59
    Villago Delenda Est says:

    @RSR: A few years back an advocate of the proportional voting system managed to waylay the nonprofit I worked at into using a “rank your candidates” scheme for the annual board election. The fun thing was, you feed the ballots into a computer, and the results come out. The algorithm used to actually count the votes and rank them was of course not available for examination, which put the entire thing into question…it was like setting Diebold loose on the elections in Ohio. No way to verify how the hell votes were weighted, etc.

    I don’t trust any mechanism that isn’t fully transparent. This one certainly is not.

  60. 60
    Tone In DC says:

    When I saw “Minority Report” back in 2001, I knew going in that the movie would contain some of Philip K. Dick’s trademark writing. His work is full of misanthropy, corporate malfeasance and paranoia, among other attributes.

    Seeing Tom Cruise and the Pre-Crime police on film was really something; the script was pretty good, and Spielberg has seldom done a better job of direction, IMHO. What a suspension of disbelief in that flick! People being arrested, sentenced and imprisoned for acts they haven’t (yet) committed.

    Dick died in 1982, I believe.
    Why do these greedy right wing assholes have to keep proving Dick right so often?

  61. 61
    Joel Hanes says:


    C.S. Lewis nailed it in That Hideous Strength

    That’s what I’ve been thinking since The W Misadministration.

    “But everyone behaved splendidly, splendidly”

  62. 62
    chuckbutcher says:

    Thanks John for some sparkling writing backed by solid analysis and good reasoning. BTW if you want to find me I am pretty sure you can.

  63. 63
    thalarctos (not the other one) says:

    Poverty is a mechanism for social control.
    Poverty is a mechanism for social control.
    Poverty is a mechanism for social control.

    I’m sounding like a broken record, but it’s gotta be said. Poor folks gonna do more time than rich folks, and the threat of poverty and prison is how the masses will be kept in line.

  64. 64
    Cain says:

    Fucking MBA’s continue to fuck with the world and will ultimately destroy it.

  65. 65
    Glidwrith says:

    Effing Christ on a pogo stick. I was suspicious when I heard conservatives were on board with sentencing reform, but I never imagined something like this. They always come up with something that is just more corrupting evil, that I cannot foresee or predict. What the bloody hell is wrong with these people? So petty, so small minded that they cannot let anything alone that they must own, dominate or destroy?

    I’m going to go hug my family now…

  66. 66
    low-tech cyclist says:

    As a professional statistician, this abuse of ‘objective’ ‘statistical’ criteria makes me want to vomit. Preferably all over the expensive suits of the monsters who came up with this abomination.

  67. 67
    Commenting at Balloon Juice since 1937 says:

    Remember the rich kid who wasn’t convicted of murder because rich? That’s the logical outcome of this type of system.

  68. 68
    mclaren says:

    Quite obviously, this is insane.

    Welcome to Shithole America, Cole.

    Obama’s motto is “don’t do stupid stuff.” So naturally he continues the endless unwinnable self-destructive War on Terror.

    America persists in its endless unwinnable War on Drugs.

    Don’t do stupid stuff?

    That’s America’s only growth industry in 2014 — stupid self-destructive stuff!

    Stuff like an unwinnable War on Copyright Infringement.

    Stuff like our endless privatization of essential government services, destroying our own society in an orgy of oligarchic greed where costs are borne by the public but the profits are privatized.

    Stuff like America’s limitless expansion of Orwellian panopticon surveillance, wrecking our democracy.

    And just recently we learned that the U.S. army has persisted in torture during the Obama administration — more lunatic self-destruction, more erosion of our democracy, more trashing of the basic rule of law that supposedly underpins our entire society.

    The U.S. military has systematically covered up or disregarded “abundant and compelling evidence” of war crimes, torture, and unlawful killings in Afghanistan as recently as last year, according to a report by Amnesty International published today in Kabul.

    The human rights organization alleges that the U.S. military has routinely failed to properly investigate reports of criminal behavior and, in some instances, tampered with evidence to conceal wrongdoing. On the rare occasions when servicemen are held to account, the report found that the compromised military justice system seldom secured justice for the victims of enforced disappearances, killings, and abuse that included torture.

    “President Obama has admitted that ‘we tortured’ people in the past—but this is not the Bush administration, this is torture happening under Obama,” said Joanne Mariner, the author of the report.

    While torture and other abuses by the CIA and the military were sanctioned by the Bush administration, Obama entered office vowing to end such practices. There have been a number of prosecutions and punishments of military units that have committed crimes and atrocities in Afghanistan under Obama, but Amnesty says the White House has to do more to ensure his policy changes are respected in the field.

    A survivor of one of the most egregious assaults on civilians detailed in the report told The Daily Beast he had been forced to listen to the last gasps and sobs of his dying daughter, who was seven months pregnant, while the Americans threatened to kill anyone who moved. “She was calling out for help, maybe she wanted to share her last words before she left us forever,” said Muhammad Tahir, a civil servant.

    Source: Obama’s Pentagon Covered Up War Crimes in Afghanistan, Says Amnesty International

    As I’ve warned for decades now, what America does to impoverished brown people in third world countries, they sooner or later wind up doing to impoverished brown people in America — usually sooner, rather than later.


    That’s Shithole America, Cole — insanity upon insanity upon insanity, limitless cesspools of insanity. Ever since electing the senile sociopath Reagan, this country has turned into a massive lunatic asylum bent upon a descent into self-destructive madness. At this rate, I expect the 2016 presidential candidates to promise to douse every American with gasoline and set them on fire — and the audiences will leap to their feet applauding until their hands blister.

    This kind of wild insanity is part and parcel of an American society in which credit scores get used by employers to sieve out prospective employees — so if you’ve been out of work more than six months, you get locked out of ever getting a job anywhere, at any time, by any means, for any reason, in any way.

    That’s Shithole America — all sadism all the time. A nation of cowardly bully worshipers who exult in brutalizing the weak and helpless. Nothing brings a smile to your Americano’s face like savagely tormenting someone who’s already down. All insanity, all the time. Welcome to the open-air lunatic asylum with a population of 300 million, Cole. Shithole America: necropolis of common sense, crematorium of creativity, mecca for stupidity and failure.

  69. 69
    Arclite says:

    Holy Shit, Cole. Great writeup.

  70. 70
    no_absolutes says:

    Right on, Cole. You’re 100% on this.

  71. 71
    Fake Irishman says:

    From one social scientist to another, this was a Hell of a piece Cole . I had no idea this was going on. It reminds a lot of how statistics get misapplied (though in a different way) in using standardized tests to evaluate teachers. If you ever get a chance, you might want to check out the lawsuit the Houston Federation of Teachers filed against the Houston Independent School District concerning value-added measures last Spring. It’s a doozy.

  72. 72
    sm*t cl*de says:

    The underlying principle seems to be that if frankly racist policies in the past have resulted in length of imprisonment being a function of skin colour, then you should continue with longer terms for melanin-enhanced defendants. Because OBJECTIVE.

  73. 73
    Jon Marcus says:

    Hey, who let Tom Levenson post under Cole’s name?

    Seriously, great piece on a very under-covered topic.

  74. 74
    C.V. Danes says:

    All I can say is make sure you pay your bills on time. You wouldn’t want to spend an extra 10 years in jail because of a bad FICO score…

  75. 75
    Ken T says:

    @Tone In DC: I was wondering if someone else was going to mention “Minority Report” before I got to it.

    The problem, of course, is that a certain type of person saw that movie and thought “Hey, what a great idea!”. It’s really just the old Social Darwinism wrapped up with The Bell Curve and painted up with some nice pseudoscientific lipstick.

  76. 76
    Another Holocene Human (now with new computer) says:

    I didn’t know you were a poly sci major, John.

    I didn’t read (too long) but the brief description of the practice sounds like recursive reasoning. Feed the outputs into the input box, get the same outputs back (but with a stronger signal). That’s not scientific, that’s just kyriarchy with the mask off. That’s like England’s 17th century justice system where your sentence was determined by class and education level.

    I’m not sure where they’re getting their recidivism #s from, if it’s from the previous sentencing regime then how could a lighter sentence for white collar criminals be scientific? You could logically only replicate the same results with the same sentence because sentencing is not a independent variable from recidivism. Anecdotes are not data but I have plenty of anecdata about white murderers and cons and white collar criminals who reoffended following light or short sentences. Some white males manage to evade prison time repeatedly for violent crimes, terrorizing their intimate partners with the knowledge that they won’t be locked up.

  77. 77
    Another Holocene Human (now with new computer) says:

    @chopper: It’s worse than that, it’s feeding your outputs back into your input line of your algorithm and then expressing surprise when the outputs look like your original outputs, only sharper.

  78. 78
    Another Holocene Human (now with new computer) says:

    @Commenting at Balloon Juice since 1937: Whoa, shut down the thread. We have a winner.

  79. 79
    Ken T says:

    @Ken T: Oops, my bad. I was so busy reading the article the headline didn’t register.

  80. 80

    […] In case you wondered, racism can indeed be implemented with mathematics. […]

  81. 81
    Linnaeus says:

    Statistics don’t lie, but you can lie with statistics.

  82. 82
    Peter VE says:

    Your passion informed by reason is the best writing I’ve seen in any blog. Thank you.

  83. 83
    ecks says:

    No, you can absolutely use statistics to make predictions about individuals. We do it all the time. We use statistics about family history of breast cancer, for instance when making decisions about whether to give an individual woman a prophylactic mastectomy. The key issue here is NOT that general statistics cannot provide useful predictive information about individual people, because they can.

    The problem is that locking people up in jail is not purely an abstract exercise in reducing the amount of future crime. It’s the stripping of someone’s liberty… And liberty is a thing that we are legally and ethically expected to protect, unless a person’s own actions and choices make it a justifiable for purposes of retribution and rehabilitation.

    You could also make a point that formulas like this are open to abuse from rules-makers, who could (and, let’s face it, would) manipulate the numbers to punish groups they especially disapprove of (such as the poor and the blah). But again, that isn’t the point of itself. After all, the rules-makers already abuse their discretion, often in far more opaque ways (judges who don’t like your complection use their discretion to sentence you for longer, etc). The real ill here is not that it admits bias, because everything does. It’s that, as John says, it can be used to dress the bias up in a suit of “objectivity” that entrenches it and makes it harder to challenge.

    TL;DR, it risks that the people making these decisions will be motivated to get the science wrong, using it only to give an air to objectivity to their biases… and it would still be wrong, even if they did totally nail the science behind it.

  84. 84
    Simeon says:

    @Tone In DC:

    Also has a lot in common with the anime “Psycho-Pass” where every person has a “crime coefficient” that measures how likely they are to commit crimes, and for which they can be imprisoned or even killed on the spot, if the coefficient is high enough.

    Didn’t expect to be seeing this in real life, however.

  85. 85
    Sourmash says:

    NOW these right wing authoritarian followers believe in science? Always nice when you can claim “science” or “the Bobble” backs up your petty superstitions.

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