Sentencing by the Numbers
Emily Bazelon
adapted from The New York Times, January 2, 2005
1.
Imagine that you could stop a crime before it happened. Not by stopping a
murderer seconds before he kills his victim, but by sitting calmly on the bench in
judge's robes and perusing a single sheet of data. Armed with the statistics, you
could predict the likelihood that a convicted drug dealer or thief standing before you
would be arrested again in the near future if you let him go free.
2.
For decades, the science of predicting future criminality has been junk
science -- the guesswork of psychologists who were wrong twice as often as they
were right. But today, the detailed collection of crime statistics is beginning to make it
possible to determine which bad guys really will commit new offenses. In 2002, the
Commonwealth of Virginia began putting such data to use: the state encourages its
judges to sentence nonviolent offenders the way insurance agents write policies,
based on a short list of factors with a proven relationship to future risk. If a young,
jobless man is convicted of shoplifting, the state is more likely to recommend prison
time than when a middle-aged, employed woman commits the same crime.
3.
Virginia's new sentencing method was born of a budget crunch. Faced with
the prospect of building new prisons after passing a crime measure in 1994, the
Legislature asked the state sentencing commission to figure out which nonviolent
offenders could be kept out of prison without posing a risk of committing new crimes.
The commission's director, Richard Kern, and his staff members tracked 1,500
nonviolent drug, larceny and fraud offenders for three years after their release from
prison. The researchers found that men were 55 percent as likely to be rearrested as
women, and that offenders in their 20's were a much higher risk than those older
than 40. Being unemployed made offenders more likely to commit another crime. So
did being single.
4.
Using these factors and a few others, including a defendant's adult and
juvenile criminal records, Kern designed a simple 71-point scale of risk assessment
as an aid for judges. If he scores 35 points or less, a defendant who would have
otherwise gone to prison under Virginia sentencing guidelines is recommended for
an alternative sanction like probation or house arrest. Anything above 35 means a
recommendation of jail time. ''Judges make risk assessments every day,'' Kern said.
''Prosecutors do, too. Our model brings more equity to the process and ties the
judgments being made to science.''
5.
Kern tested his model on prisoners released five years earlier and found that
his ratings correctly predicted who would be reconvicted in three out of four cases.
Of the felons who scored at or below the 35-point cutoff, 12 percent committed new
crimes, compared with more than 38 percent for those who scored higher. After
calculating that only a slight increase in recidivism would result, the state raised the
35-point cutoff to 38 points last July. Meanwhile, the growth of the state's prison
population -- which used to be more than twice the national average -- has slowed
nearly to a halt.
6.
But if Virginia is pleased with itself, those who think punishment should reflect
blame are not. They argue that by penalizing offenders differently for the same
crimes, for reasons that have nothing to do with moral culpability, the state has
abandoned the idea that punishment is a form of ''just deserts'' for wrongdoing. ''If
you're punishing people because of a bunch of factors that have nothing to do with
blame, well, you're not in the business of doing justice anymore,'' said Paul
Robinson, a law professor at the University of Pennsylvania. As he and like-minded
legal thinkers see it, a woman in her 40's who deals drugs hasn't done anything more
to earn trust or deserve a break than a male dealer in his 20's charged with the same
offense. She has just gotten lucky, by falling into a group whose other members have
generally proved a good public-safety bet. Meanwhile, jobless single men in their
20's start with 36 points on Virginia's risk scale, making them more likely to go to
prison before the crime they committed is even taken into consideration.
7.
It's not a foregone conclusion that Virginia's method of sentencing is
permissible under the Constitution, though no young male offender has brought a
court challenge so far. Age and sex are what the law calls ''immutable
characteristics,'' and it's a fundamental principle of antidiscrimination law that the
government has to tread carefully when it treats people differently because of
qualities that are beyond their control. (Being married or holding a job are different,
but not entirely so, since these statuses reflect people's opportunities as well as their
preferences.)
8.
Still, if the state has a compelling reason to discriminate based on age and
sex, it sometimes can. And public safety is almost always deemed to be
such a
reason. The moral and legal picture would be cloudier, of course, if Virginia's
sentencing recommendations were based on race. There's a statistical basis for
doing that; Kern's study found that African-American felons committed new crimes at
higher rates than whites. But Kern and his commission advised the state to stop
short of taking race into account at sentencing, reasoning that it was merely serving
as a proxy for socioeconomic disadvantage.
9.
Virginia has tried to deflect criticism by emphasizing that judges are free to
ignore the sentencing recommendations if they so please. By retaining such
flexibility, Virginia has also reduced the danger that the predictions might have
counterproductive consequences. This potential pitfall is what economists call a
moral-hazard problem: drug dealers with low scores will realize that they're likely to
avoid prison, and so have a greater incentive to sell more cocaine. (If that sounds
unlikely, consider that some dealers already use child couriers to shield themselves.)
If Virginia was to notice a jump in crime among middle-aged and elderly women, the
state could adjust its predictions, Richard Epstein of the University of Chicago Law
School points out. But allowing judges to send a little old lady to prison for a long
time, if necessary, helps prevent the moral hazard in the first place.
10.
Predicting risk can lead to harsh results. At the Legislature's request, Kern's
commission tracked 579 sex offenders for an average of eight years after their
release from prison. The small minority who scored above 43 on a 61-point scale
were all arrested again, either for sex offenses or other crimes that harmed
someone. So the sentencing commission recommended tripling the sentences for
offenders in this group. For rape, a 13-year sentence would soar to 39 years.
11.
For the sex offender who would have stayed clean despite the odds, that
heavy sentence would seem unjust. But for states faced with overcrowded prisons
and limited budgets, it may not be irrational. (1,161, words)
Sentencing by the Numbers
Global Questions:
1. The writer begins the article by suggesting that it is possible to stop a crime
before it happens. How can this be done?
Complete the following sentence:
By careful examination of crime ____________________, judges may be able to
___________________ whether an offender is likely to commit another crime. This
information can help them decide whether to ___________________ him or not.
2.
What is the writer’s purpose in paragraphs 3-5?
a.
b.
c.
d.
To discuss Virginia’s financial problems
To compare different groups of offenders
To present a new sentencing model
To review factors contributing to crime
3. Why is Virginia “pleased with itself”?
Because _____________________________________________ has decreased greatly.
4. Circle the correct choice to complete the sentence.
Paragraph 6 presents the view of people who SUPPORT / OPPOSE using the new
sentencing method.
5. The writer claims that, despite its discriminatory nature, Virginia’s sentencing policy
can be justified by the fact that it is used for the sake of _______________________
(no more than two words).
6. According to the conclusion, what is the writer’s attitude to the ‘sentencing by the
numbers’ policy?
a. He considers it flawless and recommends that it should be used
b. He argues that it can be used only if certain changes are made
c. He recognizes the need for it despite its obvious imperfections
d. He feels it is absolutely inadequate and should not be used
Close Reading Questions:
1. Complete the following sentence.
In paragraph 2, the writer describes a change that has taken place in “the
science of future criminality” over the years. It has become much more
___________________________; therefore, it is no longer considered
_____________________________.
2. The state of Virginia “began putting such data to use.” (paragraph 2).
What data is Virginia beginning to use?
_________________________________________________
3. Why is a young jobless man more likely to be imprisoned than a middle aged
employed woman?
Because, according to the new approach, he has a greater chance of
________________________________________________.
4. a) The development of the “new sentencing method” was due to a ________________
problem (one word).
b) In what way did the Legislature intend to solve this problem?
a.
b.
c.
d.
by building enough prisons to keep all offenders in.
by making separate prisons for non-violent offenders.
by imprisoning only potential repeat offenders
by keeping track of non-violent offenders.
5. What factors did Richard Kern use to make his scale of risk assessment? (paragraphs 3-4).
a. _________________________
b. __________________________
c. __________________________
d. ______family status__________
e. __________________________
6. What is true of offenders who are single? (paragraph 3)
______________________________________________________________
7. a) For whom was Kern’s scale developed? ________________________
b) How should the scale be used? (Complete the sentence below).
Offenders who score below 35 points on the scale should be sentenced to
_____________________________________________ rather than to
______________________________.
c) Did the new model prove to be reliable?
YES / NO
Support your answer by quoting from the text.
__________________________________________________________
8.
According to paragraph 6, we are not "in the business of doing justice anymore".
In what way should justice be done?
By __________________________________________________________
9. a) In paragraph 7, the writer compares two types of qualities. One type includes
the qualities of ‘being married’ and ‘holding a job’. The other type involves the
qualities of _______________________________________________ .
b) Which of these two types should the government be especially careful with?
__________________________________________________
c) Why?
______________________________________________________
10. a) What factor was NOT considered in Kern’s scale? _______________ (1 word)
b) What was the justification for not considering it?
_______________________________________________
11. What were the two purposes of giving judges an option not to use the risk scale?
a) _____________________________________________________________
b) _____________________________________________________________
12. What idea is illustrated by the decision to triple the sentences for the offenders in
the highest risk group?
__________________________________________________________________
Vocabulary List
Study the following words as they appear in each paragraph. Next to some of the words
you will find different forms these words can take (they may not appear in the text).
Paragraph 1
Paragraph 7
likelihood
characteristic
to convict (v) / convict (n)
quality
entirely
Paragraph 2
determine
Paragraph 8
offense / offender
rate
to sentence (v) / sentencing
be likely to
Paragraph 9
commit (a crime)
emphasize
retain
Paragraph 4
consequence
juvenile
hazard
assessment /assess
likely / unlikely (also in para. 2)
aid
avoid
defendant / defend / defense
incentive
prosecutor
consider
adjust
Paragraph 5
point out
release (also in para. 10)
score
Paragraph 10
harsh
Paragraph 6
reflect
penalize
abandon
charged with
take into consideration
average
Exercise 1. For each of the underlined words, find a word with a similar meaning in
the above list.
1. Students who are found guilty of cheating on exams may be punished by expulsion
from the university. _________________
2. While a 20 year-old man was found guilty of drug dealing and sentenced to 15 years in
prison, his 40-year old female partner was set free.
_________________
_________________
3. Although Martin was involved in robbery, the judge took his young age into account.
____________________________
4. The state should provide greater encouragement for talented individuals to enter the teaching
profession as motivated teachers will produce motivated students.
__________________________
5. Judge:
The accused:
Mr. Doe, you have been accused of assault and robbery. How do you plead?
I plead not guilty, your Honor, I have done nothing wrong.
The accusing side: Nothing wrong?! You willingly participated in a cold-blooded
attack on innocent people, seven of whom were severely injured.
Defense attorney:
Objection! This claim lacks foundation and is offensive to my client!
line 1: _________________
line 2:_________________
line 3: _________________
line 4: _________________
Exercise 2. Certain words function differently in different contexts. For each
pair/group of sentences below, indicate what the word means in each context.
1. a) Jack was serving a life sentence for unintentional manslaughter.
________________
b) Monica’s hands were shaking as she was opening Jack’s letter. By the time
she reached the last sentence, her face was completely drenched in tears.
________________
Which meaning of the word ‘sentence’ was used in the text?
A / B
2. a) Japanese employees are highly committed to their organizations and their
corporate responsibilities.
________________________
b) Many people in Japan overwork well beyond their limits. According to recent
studies, hundreds of Japanese employees committed suicide last year as a
result of incessant stress at work.
________________________
Which meaning of the word ‘commit’ was used in the text? A / B
3. a) I was presented with a hand-made Chinese vase of finest quality.
________________________
b) Israeli high-tech workers are well respected over the world for their excellent
professional qualities and high responsibility.
_____________________________
Which meaning of the word ‘quality’ was used in the text? A / B
4. a) Jim was arrested for several criminal offenses. ______________________
b) Your refusal to come to my wedding will be taken as a personal offense.
______________________
Which meaning of the word ‘offense’ was used in the text? A / B
5. a) Jason knew that the charges against his client were too serious. He realized it
was not going to be an easy case to win.
b) How much do you charge for that dress? I am ready to pay as much as you’d ask for.
c) Each meeting with this incredible woman charged him with immense
emotional energy.
Which meaning of the word ‘charge’ was used in the text? A / B / C
Exercise 3. Answer the following questions.
1. Which two words in the above vocabulary list both mean ‘trait, feature’?
_________________
_____________________
2. Which word means the same as ‘result’? ________________________
3. Which word means ‘danger, risk’? ______________________
4. Which word means the same as ‘evaluation, judgment’? ______________________
5. Which verbs in the vocabulary list express opposite actions? (Find two such pairs)
_________________

_________________
 _____________________
____________________
6. Which word is the opposite of ‘mature, grown-up’? _______________________
7. If two things are ‘not entirely different’ (para. 7),
a. they are totally different
b. they have something in common
c. they are very similar
8.
Which of the following sentences sounds most unlikely to you?
a.
b.
c.
d.
9.
Young American men watch less TV than any other group.
By the time you count to ten, 40 babies will be born worldwide.
The strongest muscle in the body is the tongue.
If you sneeze too hard, you may fracture a rib.
What kind of leader is likely to become popular with people?
(Choose one or more options from the list below.)
Defenseless / defensive / determined / offensive / considerate / qualified / average