Imagine a man and a woman convicted for committing separate but identical crimes. Would it be fair or moral to explicitly sentence the woman to more time in jail simply because she was a woman? Or to do the same to the man?

The New York Times recently reported on Virginia’s experiment at doing just that. Essentially what Virginia has been doing is collecting data on recidivism rates for non-violent crimes. It knows, for example, how likely a single male vs. a married male is likely to become a repeat offender. It knows how likely a married male vs. a single female is to repeat an offense as well. And it encourages its judges to sentenced based on this data.

According to the Times,

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.”

The result is clear — a single male and a married female who commit identical crimes and have identical criminal records might be receive vastly different sentences. Is this fair? Is this just?

University of Pennsylvania law professor Paul Robinson raises the point that there seems to be something very wrong with determining criminal penalties on matters that have nothing to do with the blameworthiness of the individuals in question,

“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.

In fact, Virginia currently uses a numerical scale that recommends prison for anyone who scores over 38 points. According to The Times, simply being young, single and male is enough to earn 36 points out of the gate.

It is telling that there is one factor which Virginia doesn’t include in its scale — race. Despite the fact that African Americans commit crimes at higher rates than whites, race is explicitly excluded from formula on the rather flimsy grounds that race is simply a proxy for socioeconomic status. But that’s not much of an argument given that being young or old, married or unmarried are also simply proxies for other underlying social phenomena, at least when considering criminal recidivism.

Virginia’s scheme would seem to be a blatant violation of the 5th amendment rights of convicts.

Source:

Sentencing by the numbers. Emily Bazelon, The New York Times, January 2, 2005.