In posts at Hercules and the Umpire, Nebraska Senior Judge Richard Kopf has posed questions relating to the use of empirical proxies to ascertain the likelihood of recidivism. One questions why poverty, of highly correlated with recidivism, shouldn’t be considered.
While some have seen his raising this question as a reflection of his disdain for the poor, and by extension, minorities because of their disproportionate representation among the poor, I see it as an effort on his part to find a better, more reliable, methodology to sentence than what is used now. Judge Kopf is big on empiricism.
The current method, which might be best described as “gut sentencing,” may have its virtues in that it allows advocates to use whatever factors present themselves, and to make as persuasive an argument as possible that the sentencing factors of §3553(a) are best served by a particular sentence. That said, it remains, without a doubt, a hit or miss proposition.
By raising the question of poverty as a proxy, which fails in my opinion for a variety of reasons ranging from “correlation not proving causation,” to its inadequacy as a proxy (say, a 74% reoffend correlation rate, statistically significant for empirical purposes, means 26% of defendants will be sentenced to a longer sentence than parsimony would allow, which is just plain wrong), to its placing the full weight of recidivism on the defendant. “What,” you ask?
Among the factors imposed by law, and embraced by sentencing theory, to justify the legitimacy of imposing a sentence of imprisonment are protection of the community, specific deterrence and rehabilitation. When Judge Kopf uses pre-incarceration factors as empirical proxies to ascertain a defendant’s likelihood of committing crimes upon release, it leaves a huge gaping hole in the analysis.
Is it not a purpose of prison to provide defendants with the means and incentive to return to society as a law-abiding person?
Putting aside the problem with prisons being incapable of assuring they can return a person sentenced to a term of years to society alive, how is it that prison has completely escaped scrutiny in this mix of poverty and recidivism?
If part of the justification for sending a human being to be caged for a period of years is to produce a person on the backend who will not emerge to commit crimes, harm people, have no skills or knowledge that will allow the person to assume a place in society where he can live a law-abiding life, then prisons have failed. And if prisons have failed, then why is the focus not on the failure of the institution of prison to fulfill its legal mandate, rather than on the defendant’s unrepaired past?
There is a concept in torts called an independent intervening event that relieves a person from liability. It means that a person isn’t responsible for an unforeseeable happening that comes between conduct and outcome. Prison is the analogue in criminal sentencing. Upon sentencing, a defendant is committed to the custody of prison for the purpose of achieving the statutory goals that justify incarceration in the first place. Prison is supposed to do something to accomplish these goals. It’s not just a human warehouse.
Is any judge saying:
I’m sending you this guy for 121 months. He is a flawed human being, who put his personal gain ahead of his obligation to exist in society without doing harm to others. He comes from a world of poverty, from a broken family where he lacked loving and supportive parents who would teach him right from wrong. His education was terrible, and his role models were people who made big money off committing crimes. He has no skills. He has no empathy. He has no expectation of living a happy, successful, law-abiding life.
Do something about it, warden. Make him a better human being. Make him a person who will leave your prison capable of living a happy, successful, law-abiding life. That’s one of the major reasons I’m sending him to you. Don’t fail me, warden. Don’t fail society.
If not, then are we conceding that the only real purpose to imprisonment is warehousing people like animals, keeping them in cages so they can’t disrupt our cocktail parties?
As much as I can appreciate Judge Kopf’s concern for empiricism, to find a more rational, more fact-based method for honing sentence to serve the purposes expressed by §3553(a), even if it involves politically incorrect measures that have a statistically significant correlation to the factors imposed by Congress, it’s impossible to ignore that fact that we justify incarceration, at least in substantial part, by imposing a duty on prisons to turn out human beings who are better than when they came in.
Where is the empirical analysis of the failure of prisons? What is the justification for imprisonment when the prisons fail to fulfill their purpose? Adding additional time to a sentence based upon a history of poverty because of the statistical correlation with recidivism, assuming arguendo that it’s valid, wholly ignores the independent intervening event of incarceration.
Before we dump on people for being poor, there is a very real reason to challenge the efficacy of imprisonment if it fails so miserably to fulfill the purposes we use to justify sending people there. And if prisons fail as miserably as the statistical correlation suggests, then the problem isn’t poverty, but prison. It may be too big an issue to fix poverty, but prison is a man-made institution. If it doesn’t work, then the solution is to fix it rather than blame defendants.