New Pennsylvania sentencing tool aims to predict future crimes

"Risk assessment is an instrument used to identify offenders that are at high risk or low risk of reoffending.”

It’s that simple, says Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing.

A tool, mandated by the Rendell administration back in 2010, will soon to be implemented in Pennsylvania.

It aims to give judges a closer look at an offender’s situation so they can make more informed decisions when determining a sentence.

“Maybe they’re drug dependent or have mental health issues. And we believe that the information related to that might be really helpful to the court in deciding an appropriate sentence,” said Bergstrom.

Over the last several years, the commission has studied a sample of 200,000 cases to determine common factors among convicts who have re-offended.

The results, according to Bergstrom, showed similarities in demographic and criminal history.

With that information, they’ve created what is called a “risk assessment tool."

It considers a person’s prior convictions and their age and genger, to put them in a high risk or low risk category.

“Science tells us that you can do certain things to identify people that are at greater risk. And we want to rely on our experience and on what the scientific community can tell us. We don’t want to just rely on the gut. Let’s let the experts inform our decisions,” said Fran Chardo, Dauphin County District Attorney.

He calls this another tool in the toolbox, saying it could help keep the community safe.

“The more information we have, the greater we can do at predicting risk. And this is all about predicting risk,” said Chardo.

But it’s the word “predicting” that has opponents, like Mark Houldin, policy director for the Defender Association of Philadelphia, concerned.

“This would represent a shift in punishing a person for what they did do to, to what a person might do. And we think that is incredibly dangerous,” said Houldin.

It even borders on unconstitutional, according to Troy H. Wilson, Philadelphia-based defense and civil rights attorney.

“They don’t have the benefit of due process, they don’t have the benefit of a jury trial, they don’t have the benefit of a trial, they don’t have the benefit of a preliminary hearing or everything that’s already been put into our system to protect against these kinds of potential abuses from happening or taking place,” said Wilson.

Fairness- seemingly the center of the dispute over how to implement this mandated tool.

We took that question to the common Pennsylvanian for some perspective.

“That would be like someone looking up my past to convict you of something. One has nothing to do with the other,” said one woman.

“If you’re disposed to something, the chances might be good that you’ll do it again?" said another.

“You’re not the same as everybody else. You don’t have the same mind as everybody else,” said a third.

“I suppose there is that person with that predisposition to reoffend, but I don’t know if we can judge that. People make mistakes,” said one man.

Mistakes Houldin worries would have everlasting effects when the risk assessment tool is implemented...in some cases, for people who don’t deserve it.

“To say it’s only going to be one factor in the decision of the judge, i think ignores the reality of how people would react to something like a label of high risk. That seems to raise alarm bells and make people afraid,” said Houldin.

Alarming, perhaps, and it’s a concern bergstrom acknowledges.

In fact, he agrees a sentence based on the risk assessment tool alone is not okay and would be basis for an appeal.

“Why are you high risk? Maybe your high risk you’re drug dependent. Maybe we should focus on that. But if you don’t know that, just locking someone up because they’re high risk is inappropriate. It doesn’t answer the question. The strength of risk assessment at sentencing is to give the judge better information, more information, to make a more informed decision. To make a decision about what is the right pathway to take in this case. And you can’t do that based on a label,” said Bergstrom.

Both Wilson and Houldin say the most fair way to deal with the mandate is to repeal it.

They’ve voiced concern to the commission on sentencing before, during a series of public hearings to discuss the tool over the summer.

The commission says they’ve made some adjustments to language in the proposal after hearing from the public, and are hosting another round of public hearings in December.

The public has until the end of November to submit their own proposals.

Our local hearing will be held at the Judicial Center in Harrisburg on December 6th at 2pm.

The commission says the earliest we might see this implemented would be next summer.

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