Jail before you commit the crime

Criminals convicted in the state of Pennsylvania could soon face sentencing not only for past transgressions but also for crimes they are judged likely to commit in the future.

The plans, which have drawn comparisons to the film Minority Report, judges considering the fate of a minor offender would be asked to consider a forecast of their future behaviour.

This would be based on detailed statistical modelling, using a defendant’s background and past behaviour. Those deemed more likely to reoffend could expect stiffer sentences while those predicted to live blameless lives could hope to escape a jail sentence altogether.

Such risk assessments are already widely used at bail and probation hearings but their possible use in sentencing has led to controversy.

Critics say that defendants will be penalised for factors beyond their control, such as their age, their gender and the neighbourhood in which they live. They have also suggested that it could heighten biases in America’s justice system, making courts even more likely to incarcerate black men from poor, crime-ridden neighbourhoods.

In a speech last year to the National Association of Criminal Defence Lawyers, Eric Holder, the former attorney-general, warned that basing sentencing decisions ‘‘on static factors and immutable characteristics . . . may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society’’.

The plan’s backers noted that risk assessments consistently proved far more reliable than the intuition of judges or probation officers.

The website Five Thirty Eight, which published a thorough review of risk assessments in con- junction with the Marshall Project, a non-profit organisation, noted studies showing that they were both more accurate and more transparent than the methods used in the past.

Adam Gelb, director of the public safety performance project at the Pew Charitable Trusts, told the website that their use ‘‘doesn’t guarantee a probation officer won’t give a kid a higher risk score because he thinks the kid wears his pants too low’’, but would offer evidence of the factors that decided a person’s fate.

‘‘Anything that’s on paper is more transparent than the system we had in the past,’’ he said. ‘‘In many cases, you had no idea from probation officer to probation officer, let alone from judge to judge, what was in people’s heads. There was no transparency, and decisions could be based on just about any bias or prejudice.’’

Pennsylvania is said to be considering risk assessments at sentencing in an effort to reduce pressure on its crowded prisons.

The state has incarcerated more prisoners than it has permanent beds to accommodate them.

In response to these pressures, the Pennsylvania commission on sentencing is expected to recommend that risk assessments be used from next year.

The Times