The notion of making “evidence-based” decisions in a criminal case sounds like an all-around positive – right? After all, detention, arrest, conviction – all of that is “evidence-based.” Police, prosecutors, judges, and jurors can’t simply rely on their own whims to reach conclusions. They must use evidence.
The Cornell Law Review opens its 2019 research on this very topic by breaking it down like this:
“Jack and Jill went up the hill to steal a pail of water, Both were caught and sentenced to jail, But Jack came out two years later.” Why was Jack sentenced to so much more time than Jill when they both committed the same crime and have the same criminal history? Because he’s male, and statistically, men have higher recidivism rates than women. If we’re relying on evidence-based sentencing, the judge may agree that Jack is more likely to offend – and give him a harsher sentence.
This is the problem with evidence-based sentencing. It relies on a range of factors – some relevant to the crime, others totally outside the control of the defendant (up to and including immutable characteristics) – to determine likely recidivism and fair sentencing.
Evidence-based sentencing leans on large datasets to evaluate the statistical likelihood between a group trait and the rate of re-offending. But it goes beyond prior offense. Some of the factors analyzed include things like:
- Age
- Sex
- Education
- Marital status
- Employment
- Education
- Parental convictions
- Family members who were crime victims
- High school grades
- Chances of finding work above minimum wage
- Dependence on social services
- Finances
- Crime statistics in their neighborhood of residence
As Fort Lauderdale criminal defense lawyers, we of course find this incredibly problematic for a number of reasons – not the least of which being from a constitutional standpoint. Plus, there’s significant doubt when it comes to the scientific validity of such methods when it comes to the accuracy of using such factors to determine one’s likeliness of re-offending.
This is especially true because by using this sort of “data-driven” evidence gives prosecutors and judges the false sense that they’re improving fairness and reducing prison crowding. Just because it’s more likely that a younger man will re-offend doesn’t necessarily make it fair that a he should be sentenced to longer prison term than an older woman for the exact same crime, all else equal.
Even police officers asked to provide a basis for reasonable suspicion can’t necessarily rely on the statistical correlation of one group’s trait and the likelihood that they commit a certain kind of crime. There are situations where it *could* be a factor, but they still must provide in-depth analysis on a case-by-case basis.
Making predictions about an individual on the basis of group data can have serious – and unfair – consequences in the sentencing phase. Obviously, our top priority as Fort Lauderdale criminal defense lawyers is going to be avoiding conviction first and foremost. But if we do get to the sentencing phase, we do pushback on this type of evidence-based approach.
To do so, we raise arguments/concerns about things like:
- Bias and discrimination. The potential to inadvertently perpetuate bias and discrimination, particularly against minority groups, is very real, harmful, and lasting. Courts should seek to avoid it at all cost.
- Transparency and accountability. If we can’t clearly examine the algorithms used to categorize our clients based on perceived risk factors, there is room to challenge the veracity and fairness of the data and its results.
- Loss of judicial discretion. Over-reliance on algorithms and statistical models ultimately limits the common-sense discretion that courts broadly extend to judges in criminal cases.
- Legal and Constitutional challenges. Use of algorithms and other “evidence-based” tools in sentencing may violate a defendant’s rights of due process and equal protection.
While judges and prosecutors may be well-intentioned in turning to these tools, we as criminal defense lawyers can’t help but overlook the potential harms – and we will ALWAYS advocate for the rights and best interests of our clients.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
Using Daubert to Evaluate Evidence-Based Sentencing, March 2018, Cornell Law Review
More Blog Entries:
Fort Lauderdale Defense Lawyer Explains Florida Criminal Law Scoresheet, Sept. 5, 2023, Fort Lauderdale Criminal Defense Lawyer Blog