Against Prediction: Profiling, Policing, and Punishing in An Actuarial Age

By Bernard E. Harcourt | Go to book overview
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CHAPTER NINE
The Virtues of Randomization

The use of actuarial methods in the criminal law may be counterproductive to the central law enforcement objective of reducing crime. Even on very conservative assumptions entirely consistent with rationalchoice theory, the use of prediction tools may backfire: given the reasonable possibility that differentials in offending go hand in hand with different elasticities to policing, there is good reason to believe—again from a rational-action perspective—that actuarial methods will increase rather than decrease the overall amount of crime in society. In addition, the use of actuarial methods will aggravate social disparities and tend to distort our conceptions of just punishment.

The critiques set forth in this book reflect problems with the actuarial approach more generally—notjust with specific types of stereotyping or profiles. What the ratchet effect does, for instance, is violate a core intuition of just punishment—the idea that anyone who is committing the same crime should face the same likelihood of being punished regardless of their race, sex, class, wealth, social status, or other irrelevant categories. When prediction works—when it targets a higher-offending population—it likely violates this fundamental idea by distributing the costs of the penal system along troubling lines such as race, gender, class, and the like. The only way to achieve our ideal of criminal justice is to avoid actuarial methods and to police and punish color-blind, gender-blind, or classblind. To police and punish, in essence, prediction-blind.Naturally, race is what makes racial profiling on the highways so controversial in public debate and, at least at the level of public rhetoric, so condemned. But it is important to rethink racial profiling through the lens of the actuarial.

What, then, should we do? Where do we go if we forsake the actuarial? Do we return to clinical judgment? No. Clinical judgment is merely the human, intuitive counterpart to the actuarial. It is simply the less rigorous

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