Eric Holder Warns Of Risks In ‘Moneyballing’ Criminal Justice

On Friday, Attorney General Eric Holder warned against using statistics to determine the length of criminal sentences, claiming that doing so would “exacerbate unjustifiable and unjust inequities that are already far too widespread in our criminal justice system and our society.”

Holder advocated for the use of data analysis to predict where crime is likely to occur and for risk assessments on the “back-end,” such as when deciding how best to prepare inmates for re-entry to society, in a speech delivered at the 57th annual meeting of the National Association of Criminal Defense Lawyers in Philadelphia.

Holder cautioned, however, that a person’s sentencing should not be based on “static elements and immutable features, including the defendant’s education level, social background, or neighbourhood.”

Although these reforms were developed with the greatest of intentions, Holder expressed concern that they could thwart the administration’s efforts to provide fair treatment under the law. “Criminal penalties must be proportional to the seriousness of the offense(s), take into account the defendant’s criminal history, and be consistent with the law. A person’s punishment should not be dependent on something outside of his or her control, such as past actions that cannot be undone or the prospect of an uncommitted crime in the future. For there to be true equity in the criminal justice system, each defendant must be treated uniquely, with charges, convictions, and sentences tailored to his or her specific actions and the nature of the crime committed.”

In tandem with Holder’s comments, the Justice Department has asked the U.S. Sentencing Commission to investigate the current state of data analysis in sentencing and provide recommendations for its future usage. The Justice Department wrote to the commission expressing concern over pending sentencing reform legislation provisions that would use “education level, employment history, family circumstances, and demographic information” to determine a prisoner’s sentence. They called this a “dangerous concept that will become much more concerning over time as other far reaching sociological and personal information unrelated to the crimes at issue are incorporated.”

Since the publication of Moneyball, Michael Lewis’s book about how the Oakland Athletics used statistical data to predict the future performance of baseball players, there has been an “explosion in the use of data analytics to identify patterns of human behaviour and experience and bring new insights to fields of nearly every kind,” as noted in the letter to the commission. Moneyball was first associated with data analysis in the criminal justice system by former New Jersey Attorney General Anne Milgram.

In his time as attorney general, Holder prioritized criminal justice reform. He is now the fourth longest-serving attorney general in American history. There has been “a watershed in the debate over how to reform our sentencing laws,” he said in his speech, and the best solution may lie in combining the so-called truth in sentencing approach, which has sought more equal sentences (but has also led to massive growth in the prison population) with data-driven analysis.

“The legacy of the truth-in-sentencing era is the realisation that the threat of punishment can deter criminal activity. The “Big Data” trend could vastly improve the correctional system in terms of its ability to deter recidivism. The most effective strategy may be a combination of these methods, “What Holder had to say.

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