Past Performance Is A Good Indicator?

On the federal Sentencing Guidelines grid, there are two axes. One is for the offense level, which started with a number pulled out of the collective butts of the Guidelines commission, then adds and occasionally subtracts numbers to reach the final number, whether it’s a drug conspiracy, insider trading or terrorism. The other axis is for criminal history.


See across the top? There are some curious details that go into what’s counted, and not counted, in criminal history, but for the most part, it’s fairly straightforward. More than ten years since the sentence was completed and it’s not included. Less and you get burned for it.

At Fault Lines, Nebraska Senior District Judge Richard G. Kopf notes that there is a proven correlation between criminal history and recidivism.

[T]he study was a serious undertaking to determine, among other things, recidivism rates for federal offenders and the correlation, if any, between criminal history score and recidivism.  In short, for those who complain that the Guidelines lack an empirical foundation, this study proves the contrary for the horizontal axis (criminal history) of the sentencing grid. The study has or should have important implications for criminal defense lawyers (CDLs).

He warned me in advance this was coming, kind of a trigger warning for fear it would make my head explode. Behind that old, gruff exterior is a very sensitive and caring judge. But this isn’t a particularly controversial concept, that someone who has been convicted of multiple crimes is more likely to commit another crime in the future than someone who has never been convicted.*

The problem isn’t a matter of correlation. Sure they correlate, but that does nothing to inform as to causation. Therein lies the problem, and penalizing someone in advance for what they’re likely to do in the future may make a judge feel protective of the public’s future safety, but it’s a lousy way to run a legal system.

Let’s consider how one gets from here to there. A defendant gets convicted of one crime, his first offense. He’s now saddled with a felony, which will preclude a host of future possibilities, from jobs to housing to education. If the offense is one of the many that fall into the sex offender category, like the dreaded peeing on somebody else’s wall, he may be placed on the registry forever, forbidden from living in America except under one bridge in Iowa, and have his smiling face on the internet such that he can’t even get a job dishing slop at a highway diner.

If he’s sent to jail or prison, he will learn from the best, where he will be taught mad criminal skillz, and where he will have to make close friends lest he get a shiv in his gut or a stiff penis in the shower. And that’s from the screws. The prisoners can be even worse.

He will be given drug treatment because it may cut some time off the back end of his sentence, whether or not he’s addicted to drugs. Drug treatment is fashionable. He will not, however, come out with any skills that could translate into earning a lawful living. Not that it matters, since it’s not like there are a lot of options for convicts returning to society. Then again, there aren’t a lot of good jobs for anyone, so maybe that doesn’t make him special.

If he is a drug addict, the treatment course he went through in prison won’t change any of the reasons he became one. They’re mostly pretend, with no empirical evidence that they actually serve any purpose, but since its fashionable to provide drug treatment, they do.  The word from the inside is that there is no better place to score drugs than at drug treatment. It makes complete sense if you think about it.

And once they get out, they’re put on supervised release or parole in state courts. They get an officer who makes them come in, meaning that if they get a job, they are forced to miss work to pee into a cup or have a plethysmograph wrapped around their, well, you don’t want to know. Employers love it when ex-cons have to miss work, whether once a week or once a month, because it’s not like employers hire people to actually show up and do their job.

These parole officers are supposed to be there to help the ex-con “transition” from the slammer to the streets. What they need is a job, a place to live, some money to buy food and maybe a pair of shoes. What they get is a surly, disinterested, bored, overworked, underpaid (did I mention surly?) guy who snarls, “did you get a job yet?”  Because asking stupid questions is a lot easier than actually helping someone.

A guy who has done time in prison loses that time on the outside, but the outside continues to change whether with him or without him. The guy who went in before 1993 is going to be a little out of his milieu in a world of texting and twitter. Adjusting to the world isn’t easy when the world has changed so dramatically. And it’s even harder when he’s spent 30 years being told when to eat, sleep and spread his cheeks.

As Judge Kopf notes, there is a correlation between this guy and a guy who goes on to commit additional crimes after his release.  Go figure. I neither doubt it nor disagree with it. In fact, I can’t imagine how anyone manages to survive post-prison release and not return to a life of crime.  Aside from those fortunate enough to have loving families to support them on release, or fall into one of the handful of employers who will give an ex-con a break, there is little else for them to do to survive than commit crimes.

So it correlates? You bet it does. What did you expect out of this system we’ve created?

*And it is critical to note that this is about convictions, not accusations where the proof is propensity. That a person may be a recidivist does not mean that he committed any particular offense, an entirely different issue.

16 thoughts on “Past Performance Is A Good Indicator?

  1. Ben

    “penalizing someone in advance for what they’re likely to do in the future may make a judge feel protective of the public’s future safety, but it’s a lousy way to run a legal system.”

    What’s the difference between relatively harsh sentences for subsequent offences, and relatively lenient sentences for preceding offences? Only the way it’s described.

    The public, if asked, may well want to throw away the key on first time offenders too, especially for Offence Everybody Hates.

    It’s unjust to punish an offender more than he deserves; but showing that sentences are different to each other is not sufficient to prove this. (Nor is it necessary: If a sentence is too harsh, it is too harsh regardless of what other sentences are.)

      1. Ben

        Ok, I get it, I’m not as good a writer as I think I am. There’s two points mushed up there:

        Point 1: “Propensity” and public protection is not the only reason for reoffenders to get longer sentences. If you abolished propensity as a consideration it would make little difference.

        Point 2: Showing that sentences escalate for repeated offences – or vary a lot apparently randomly – doesn’t prove that they are too harsh at the top end. If that’s not shown on its own terms, it may just as well be that they are too lenient at the bottom end. Or both.

  2. John Neff

    A medical doctor is not supposed to harm their patient so they don’t take exaggerated claims about research results seriously. In general they decide what to do on the basis of clinical trials.

    As you have pointed out few people care if a convict is harmed. So what about harm done to non convicts?

  3. joe

    Pre-crime sentencing is JUNK SCIENCE. The Feds have renamed it “Public Safety Assessment” (PSA).

    “The PSA is now being used to assist prosecutors in making important decisions in the pretrial phase, including those related to charge, plea bargain, and diversion. And it is helping to guide their recommendations to courts regarding pretrial detention, release, bail, and supervision. Until now, there have been no such objective, evidence-based risk-assessment tools to aid prosecutors in these recommendations and decisions.”

    “LJAF believes the PSA can also help law enforcement officers differentiate among high-risk individuals who should be detained and low-risk individuals who can simply be issued a citation. However, additional research in this area is sorely needed. We have partnered with the International Association of Chiefs of Police on a multi-year effort to study current citation practices and to gather data that will allow us to expand the PSA for use in law enforcement.”
    [Ed. Note: Link deleted per rules.]

  4. Jim

    Doesn’t the criminal history axis serve the legitimate purpose of punishing repeat offenders more severely because they’re repeat offenders (as opposed to punishing them more severely because of potential future actions)?

    1. SHG Post author

      Where do you see punishing repeat offenders “because they’re repeat offenders” in 3553(a)? If you don’t (and you won’t because it’s not in there), then it isn’t a legitimate purpose. So, you’re begging the question.

    1. SHG Post author

      Exactly. That’s not the same as your very specific “because they’re repeat offenders.” And use the reply button rather than start a new thread.

  5. Dan Hull

    This is great. Just noticed it. Sentencing. An art form. This is where business litigators with “white collar crime” clients–and you’ll see and meet them–need the most help, too.

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