Sentencing guidelines shouldn't abandon equal protection

I'm glad states are looking at ways to incarcerate fewer people. It's important to focus incarceration resources on the most dangerous instead of non-violent offenders. But the Virginia system described in today's New York Times magazine makes me uneasy. Here's what they're doing:

In 2002, the Commonwealth of Virginia began ... [to encourage] 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.

Virginia's new sentencing method was born of a budget crunch. Faced with the prospect of building new prisons after passing a tough-on-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.

Virginia has created a 71 point evaluation system based on various critieria like gender, age and employment status. If a defendant scores higher than 38 points, it recommends jail time instead of alternatives to incarceration.

There's a big problem with that strategy, though: it probably violates the 14th Amendment to the U.S. Constitution, the "equal protection clause" that guarantees Americans won't be treated differently based on immutable characteristics like race, gender or age. The article quoted a critic arguing this point:

those who think punishment should reflect blameworthiness are not [pleased]. 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, putting them on the cusp of going to prison before the crime they committed is even taken into consideration.

That last bit about jobless, single young men starting with 36 out of 38 points is what makes the system likely to be unfair, even unconstitutional. If you're young and male, you can't do anything about those facts, but in Virginia the system will punish you harder. The state insists its predictions of criminality hold true for three out of four young men, but even that claim highlights that the method is wrong one time in four; it uses estimates and guesses, not "science" as the state sentencing commission claims. On the scale of the entire U.S. criminal justice system, that 25% error rate would result in the unnecessary incarceration of tens of thousands.

The Times reports that nobody has challenged the system's constitutionality yet, probably in part because unemployed young men in their 20s can't afford an appellate lawyer. But the Virginia ACLU or a similar group should jump on the issue. Across the country states are struggling with how to punish non-violent offenders, and this method will undoubtedly be emulated. It'd be a mitzvah for the entire nation to go ahead and determine whether this kind of sentencing scheme will be held constitutional.

UPDATE