In an ideal crime-fighting world, we would know every convict's criminal proclivities. An offender could be detained for precisely the right amount of time as we effortlessly balanced the many competing interests served by our system of criminal justice. Of course, such a system would, of necessity, require invasions of civil liberties that even the toughest on crime might deem unreasonable. (1) Thus, our myriad schemes for criminal sentencing rely upon proxies to estimate how best to achieve the goals of "deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender." (2)
To enhance these proxies, considerable efforts have been devoted to developing tools to predict criminal behavior and criminological trends. (3) But these efforts fall far short of predictive accuracy. In light of these failings, there is a threshold ethical dilemma that we seldom consider: how good must predictive efforts be to justify using them to take restrictive actions that implicate the liberties of others?
The Commonwealth of Virginia sits at the forefront of predictive techniques. Anticipating that prison space would become scarce after implementing a truth-in-sentencing initiative to extend sentences for violent crime, Virginia has spent a decade studying how to use its prison space efficiently to reduce future crime. The goal has been to divide nonviolent criminal offenders into groups--those deemed most likely to recidivate are imprisoned while those assessed to pose less of a threat to society are given alternative sanctions. (4) On its face, such a program seems pedestrian and unremarkable. After all, judges routinely make determinations about offender riskiness during sentencing hearings. (5) But Virginia chose not to rely on the expertise of judges for this initiative; instead, the Commonwealth commissioned a risk-assessment tool, based on a statistical study of recidivism, to make an initial division between the dangerous destined for prison and those others who could be welcomed back into society without visiting the state penitentiary. The system relies upon simple worksheets that tally demerits for past crimes with additional penalties for demographic characteristics found to be correlated with the commission of crime. Thus, a young, unemployed, never-married man is considerably more likely to face jail time than an older, divorced woman who held a job prior to committing an identical crime.
The Virginia risk assessment program presents serious issues regarding the ethical propriety of predictive techniques in criminal sentencing. An evaluation of the program forces us to ask what classes of information we are comfortable considering when penalizing criminal misdeeds. Our answers to these questions are influenced--at least in part--by the effectiveness of predictive techniques and the hidden assumptions that govern their conclusions. (6)
This Essay evaluates Virginia's risk assessment program as a means to probe our (dis)comfort with the use of predictive group statistics on individual criminals and to determine whether the statistical techniques adopted in Virginia are suitable for this important task. Part II gives the history of risk assessment in Virginia. Part III discusses the ethics of predictive sentencing of this sort. Part IV critiques the methodology of Virginia's approach and the errors that are introduced therein. Part V concludes the analysis.
II. THE PATH TO RISK ASSESSMENT 1N VIRGINIA
Virginia's experimentation with actuarial risk assessment in criminal justice has been marked by incremental change and paced implementation. The project began in earnest in 1994, when the General Assembly created the Virginia Criminal Sentencing Commission (VCSC or Commission) and instructed it to study the feasibility of placing twenty-five percent of nonviolent felons into alternative arrangements by …