Every day, Mr. X, age 81, travels two and a half hours by bus and subway from the shelter where he lives to visit his 84-year old disabled wife. She still lives in the apartment they shared for decades until 2002 when he was convicted of a low level sex offense. After shopping, cooking and having a meal together, Mr. X makes the long trip back to the shelter in time for curfew.
Mr. X is one of thousands of persons in New York who will never be allowed to go home after serving their sentences because a judge has decided that they present a maximum risk of committing another sex offense. How does a judge decide? By adding up the numbers on a “risk assessment instrument” concocted by five former parole officers that purports to be a predictor of an individual’s risk of recidivism. It’s based on the highly scientific principle that whatever bad thing you did before, you’re bound to do it again.
Psychs and defense lawyers have been screaming for years that this so-called instrument is no more reliable than flipping a coin. Actually less reliable, since a coin gives even chances, whereas this instrument is skewed towards the highest risk level. Prosecutors naturally love the chance to pile more punishments onto people who’ve already been punished, but they’ve never managed to dig up a single expert to say that this humbug predicts recidivism. Which is surprising, considering how they can always find some disgruntled PhD or right-wing fraud to say that stress improves eyewitness accuracy or that there’s no such thing as a false confession.
When it comes to punishing people in advance for crimes they haven’t committed, there are two schools of judicial thinking, represented by Savaranola and Lysenko. Savoranola being the puritanical fanatic of Florence who made a bonfire of art and books because they might corrupt the little minds of children. Lysenko of the Soviet Union was notorious for concocting fake genetic theories to shore up the Party line.
The Savoranola school, of which AD1 is the headquarters, makes no pretense that risk prediction is anything but denunciation for the past offense, indulging in such purple prose as that it was of “unusual repulsiveness,” evinced “depravity” or consisted of “monstrous acts of debauchery on his own flesh & blood.” The Lysenko judge professes an erudite interest in matters scientific and psychological, but somehow always reaches the same conclusions as Savoranola.
In fact, not even scientific instruments are good enough predictors to justify inflicting punishment in advance. A study in the British Medical Journal comes to the conclusion that risk assessment instruments are fairly good at identifying low risk individuals but have alarmingly high rates of false positives. As forensic psych blogger Dr. Karen Franklin says:
What that means, in practical terms, is that to stop one person who will go on to become violent again in the future, society must lock up at minimum one person who will NOT; for sex offenders, at least three non-recidivists must be detained for every recidivist. This, of course, is problematic from a human rights standpoint.
It’s also a teeny bit problematic from a constitutional standpoint. Must we wait until someone actually commits a crime before punishing them? ‘Fraid so.