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Attorney General Holder cautions against use of risk data in sentencing

| Saturday, Aug. 2, 2014, 6:06 p.m.
FILE - This July 14, 2014 file photo shows Attorney General Eric Holder speaking at the Justice Department in Washington. Holder cautioned against the use of data in sentencing criminal defendants, saying judges should base punishment on the facts of a crime rather than on statistical predictions of future behavior that can be unfair to minorities. (AP Photo/Pablo Martinez Monsivais, File)

WASHINGTON — Attorney General Eric Holder cautioned against the use of data in sentencing criminal defendants, saying judges should base punishment on the facts of a crime rather than on statistical predictions of behavior that can be unfair to minorities.

In a speech on Friday to criminal defense lawyers, Holder said he is concerned that judges in several states have begun factoring in “risk assessments,” such as a defendant's education, neighborhood or socioeconomic background, in imposing sentences. Those risk assessments use data analysis to predict the likelihood that a particular defendant will commit more crimes.

The attorney general warned that such a calculation, which takes into account factors that a defendant cannot control, “may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”

“Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place,” Holder said, according to a copy of his prepared remarks at a meeting of the National Association of Criminal Defense Lawyers in Philadelphia.

In a written report given last week to the U.S. Sentencing Commission, the Justice Department identified several states, including Pennsylvania and Tennessee, that it says use risk assessments during the sentencing process. Legislation pending in Congress would make such assessments part of the process for federal offenders. Using such data to fashion criminal sentences is a “dangerous concept,” the report said.

The department is urging the commission, an independent panel that establishes sentencing policy, to study the use of data-driven analysis in sentencing.

The president of the criminal defense lawyers' group, Jerry J. Cox, said in a statement that he supported Holder's message and that it was important to work toward eliminating racial and economic disparities in the criminal justice system.

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