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Is America going to start punishing criminals for crimes they theoretically might commit in the future?

There is an OUTRAGEOUS story at the website fivethirtyeight.com , "Should Prison Sentences Be Based On Crimes That Haven’t Been Committed Yet?" that tells us that in Pennsylvania convicted criminals’ sentences will soon, in significant part, be based on an evaluation of what their future likelihood is of committing additional crimes.

On the face of it, the outrageous element of this development may not be obvious. Perhaps everywhere in the United States convicted criminals are evaluated in the sentencing phase based not only on the crime(s) of their current conviction, but on their record of prior crimes.

But sentencing recommendations based on a sense of a man’s future crimes becomes a case of harming him, imprisoning him, for something he hasn’t done.

In Pennsylvania, soon, they hope to essentially live the plotline of the Philip K. Dick short story "The Minority Report," that was made into a Stephen Spielberg movie starring Tom Cruise in 2002. In the movie people were snatched off the street and convicted for crimes an oracle divined that the people would commit in the future.

According to the article, "Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself. A state commission is putting the finishing touches on a plan that, if implemented as expected [in January, 2016], could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely. Those deemed high risk could spend more time behind bars."

The article tells us that states across the country do create "risk assessments" on those convicted of crimes to better understand the criminal as a person who might potentially commit other criminal acts after being released from jail or prison. Conservatives and many liberals are keen on these assessments because (1) they can save taxpayer dollars if the psychology of a criminal is understood; (2) it can provide information about a program of some sort that could aid the offender, putting him on a path toward becoming a wholesome, productive citizen and (3) it can be used as a statistical tool to deter future crime.

An episode titled "When Data tells us to Lock Someone Up" of the FiveThirtyEight podcast series "What's the Point?" gets into some of the hard questions about this development.

We are told that an exquisite amount of past data on criminals has now been amassed to to make these "risk assessment tools" very predictive.of a person's future conduct. One element that the podcast mentions is the gender of the criminal. Since men are significantly more likely to re-offend than women, the tool would require that men be dinged with more-harsh punishment to some degree as a result. Other negative factors on the tool include: if you're under 25 years of age; dropped out of high school; are unemployed; moved recently; or live in a neighborhood that has a high crime rate.

While race isn't explicitly used in these risk assessment tools, it does come into play indirectly as a result of some of the questions asked. For example, blacks are more likely to be stopped by the police; blacks are more likely to live in high-crime neighborhoods; thus, blacks will end up being punished more harshly for theoretical future crimes than white criminals.

Of course, too, many many people have factors about them that might well suggest they will commit crimes in the future, but they are atypical of other people much like themself. Every person is unique, after all, with some folks being completely unpredictable in both good ways and bad ways.

Punishing people for crimes they only, theoretically, might commit would be a gargantuan injustice -- the ultimate injustice -- it seems to me.

U.S. Attorney General Eric Holder expressed his concern before he left office about six months ago, responding to the increased interest in risk-assessment tools by acknowledging that the "'Big Data' movement" has the potential to "make our system far more effective than it is today." But he also expressed concern that these tools "may exacerbate unwarranted and unjust disparities." Indeed, those who benefit from "low risk" diversion may be disproportionately white white-collar criminals. [Source for Holder's comment comes from the Baltimore Sun.]

There's another element to this story that needs to be mentioned: a class of criminal that already is punished in advance for crimes not yet committed. I'm referring to persons convicted for sexual abuse of children. While it gets scant attention, the number of homeless men in Sacramento with convictions for sexually abusing children is very substantial. Perhaps 1/3rd to 1/2 of men who come to the Union Gospel Mission each evening for some combination of chapel, dinner, a shower, and/or a bed for the night is a convicted pedophile. These fellows, typically, have to wear an ankle bracelet at all times and -- if they are in probation (and sometimes, even when they're not) -- they are very restricted on where they can go, and where they can reside.

For all the many evenings I used the mission's services -- which included attending a chapel service over 1000 different times -- I cannot ever recall a single time when pedophilia was addressed by a preacher. I am told, however, that guys in the mission's rehab program who are pedophiles are confronted with their history as child abusers and are pressured to reform their evil desires and evil ways.

Because protecting children is of incredibly high importance, I understand why there are measures that restrict convicted pedophiles from being near children  Still, I am conflicted on this matter since punishing anyone for something they haven't yet done -- or, maybe, will never do -- seems insane. One guy from the mission told me his conviction for sexual contact with a child was twenty years ago and that he recognizes how terrible and stupid what he did was. Still, he is set to need to register on the sexual-abuse-of-children list for the rest of his life.

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