Academic journal article Violence and Victims

Predictions of Dangerousness: An Argument for Limited Use

Academic journal article Violence and Victims

Predictions of Dangerousness: An Argument for Limited Use

Article excerpt

Intense debate has focused on the use of statistical predictions of dangerousness in the criminal justice system. Two conflicting positions maintain wide support: that such predictions are never appropriate in criminal justice decision-making, and that they should be used far more often. Recognizing the fact that implicit and intuitive predictions are made every day in police, prosecutorial, sentencing, and other decisions, and explicit but unscientific predictions are common, this article suggests a theoretical framework justifying limited use of statistical predictions. Statistical predictions may present, in some instances, a morally preferable alternative to biased nonscientific and implicit judgments. Development of a sound jurisprudence of predictions faces major hurdles given the trend toward unscientific predictions in the law and the enormous judicial confusion in dealing with predictions. The concept has contributed to a string of notably poor Supreme Court decisions.

In a series of articles over the past four years, we have offered a position on the use of statistical predictions of dangerousness in criminal justice decision-making at odds with the two dominant and conflicting beliefs on this matter: that predictions should never be used, or that they should be used far more often (Morris & Miller, 1985; Miller, 1986; Miller & Morris, 1986; Morris & Miller, 1987, March). Our views have elicited comment (Alschuler, 1986; Tonry, 1987a; von Hirsch, 1986; Weinreb, 1986 p. 48 n.4; Zimring & Hawkins, 1986).

Regrettably, those earlier articles have been read as either "for" or "against" the use of predictions of dangerousness. Because the reigning dogma was a liberal one-that predictions were simply unacceptable, primarily due to low levels of predictive ability and individual justice concerns-our articles have been viewed as supporting the broader use of predictions in sentencing, detention, and other contexts. In fact, we avoided taking a position "for" or "against" predictions. Those positions are impossible to justify in a world in which predictions, both implicit and explicit, intuitive and actuarial, are constantly being made and applied in police, prosecution, bail, probation, parole, and corrections decisions. What was called for, we believed, was an abstract beginning to this very practical subject: we asked when, if at all, statistical predictions of dangerousness could be justified ethically and legally, and what the limits on such use should be.

The use of explicit predictions-whether scientific or casual-has been widely recognized and utilized by criminal justice authorities as well as by the courts (Miller & Morris, 1986; Moore et al., 1983). All current members of the United States Supreme Court have expressed their agreement with Justice Stevens' statement in Jurek v. Texas (1976) that "any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose" (p. 275). The Court has considered explicit use of predictions in one case involving the Texas death penalty statute (Barefoot v. Estelle 1983) and in another case involving the continued detention of an individual who had pleaded not guilty by reason of insanity after the expiration of the time for which he could have been held if convicted of the crime (Jones v. United States 1983). Most recently, the Court upheld the use of explicit predictions in detaining federal offenders without bail before trial (United States v. Salerno (1987); see Miller & Guggenheim, 1989). Finally, predictions of dangerousness also underlie the civil commitment of those mentally ill or retarded persons who are thought likely to be a danger to themselves or others. Hence, jurisprudence that purports to exclude the role of predictions of dangerousness is self-deceptive.

That such predictions are made and relied on and cannot be banished from the criminal law is reason for acknowledging them, studying them, and trying to improve their accuracy. …

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