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

By Bernard E. Harcourt | Go to book overview

CHAPTER ONE
Actuarial Methods
in the Criminal Law

CASE I. In Kansas, the sentencing commission is required by statute annually to prepare two-year projections of the expected adult prison population. When its projections exceed available prison-bed capacity, the commission has to identify ways to either reduce the number of inmates admitted to prison or adjust the length of their sentences. In fiscal year 2002, with dire projections of an unprecedented number of prisoners, the Kansas legislature followed the lead of California and Arizona and instituted mandatory drug abuse treatment in lieu of incarceration for a designated group of drug offenders convicted after November I, 2003.1Other states faced with similar problems, such as Louisiana and Alabama, have enacted early-release legislation. Those statutes make outright release from prison possible in order to alleviate overcrowding.2

In general, candidates for early release or diversionary programs must satisfy strict risk-of-reoffending criteria. For example, in Kansas, to be eligible for drug treatment in lieu of incarceration, the offender must have been convicted of drug possession only. Drug sales or trafficking preclude diversion, as do prior violent felonies and posing a significant threat to public safety. To assess the latter, the Kansas legislature mandates that each candidate for treatment be subject to what they refer to as “a statewide, mandatory, standardized risk assessment tool.”3That risk-assessment tool, in Kansas, is the Level of Services Inventory-Revised—known in the business as the LSI-R—and the results of the assessment are incorporated into the presentence investigation report submitted to the sentencing judge. From November 2003 to mid-January 2004, 149 drug convicts in Kansas were diverted to treatment.4

-7-

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