Last week Attorney General Eric Holder delivered a speech at the National Association of Criminal Defense Lawyers conference in Philadelphia. Time magazine interviewed Mr. Holder for a story published on 31 July (available here) with the headline “Exclusive: Attorney General Eric Holder to Oppose Data-Driven Sentencing.” Which is not true, but it does exemplify the challenges surrounding any discussion about sentencing reform.
What Mr. Holder said, in the interview as well as the speech, is that “using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders.” The failure to distinguish between static and dynamic risk factors when discussing data-driven sentencing outcomes is critical to the discussion. In fact, Mr. Holder is very supportive of implementing data-driven sentencing policies pertaining to dynamic factors.
What’s the difference? Static factors are not changeable over time. They include age, race, gender, and environmental factors (such as living in a high crime area).
Dynamic factors, on the other hand, are changeable and include such things as substance abuse, procriminal attitudes, education, and job skills.
Interventions targeting dynamic risk factors are known to change behaviors, reduce recidivism, and increase public protection. But only when they are necessary. Not everyone in the criminal justice system has a substance abuse problem and there is no one program or solution that fits everyone who does have a substance abuse problem.
One-size fits all approaches do not work. Individualized sentences require individualized information, which necessarily includes the identification of dynamic risk factors that are suitable for targeting with the appropriate correctional intervention. This “data-driven” information is a critical component of truly individualized sentences.
Even the unintentional hijacking or twisting of words disrupts and delays progress in the core conversation, which is reformation of the criminal justice system. The use of data-driven information at sentencing provides structure, facilitates individualized outcomes based on dynamic risk factors, and it promotes personal accountability.
To read the Attorney General’s speech, it is available here.