Attorney General Holder Warns Against Sentences Based on Predictions

Image: U.S. Attorney General Eric Holder
United States Attorney General Eric Holder in Jan. 2014.GARY CAMERON / Reuters file

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Criminal sentences should be based on the nature of the crime a defendant commits, not on data intended to predict the risk of future offenses, Attorney General Eric Holder told the U.S. Sentencing Commission on Friday. In a letter to the Sentencing Commission, the Justice Department said the use of statistical analysis in many industries — and in the criminal justice system — has exploded since the book "Moneyball" explained how the Oakland Athletics used masses of data to recruit new players, based on predictions of how they would perform.

Risk assessment can be valuable, the letter said, in deciding when to release a prison inmate on parole. And it can be useful in evaluating which inmates will need the most attention in helping them readjust to the community. But criminal sentences, it said, should be based primarily on the offender's past conduct and the nature and circumstances of the crime.

"They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place. Equal justice can only mean individualized justice, with charges, convictions, and sentences befitting the conduct of each defendant," Holder told the Commission. Basing sentences on factors such as education level, employment history, family circumstances, and age will adversely affect offenders from poor communities already struggling with social problems, the letter said. Some states have begun to use risk assessments in sentencing, and bills are pending in Congress that would require it in the federal courts.