The Crime Report
January 9, 2019
This summer, the Pennsylvania
Commission on Sentencing is expected to roll out a “risk assessment”
tool for use by judges when sentencing offenders, fulfilling a mandate first
commissioned by Gov. Ed Rendell back in 2010.
Incorporating risk assessments into sentencing in
Pennsylvania has been a long time coming.
Giving judges more information about an offender’s
background and his or her propensity for future violence is thought to enhance
a jurist’s ability to make informed decisions that incorporate the core
elements of sentencing: appropriate punishment, public safety and
rehabilitation.
The Commission’s report would include an assessment with a
scale from 0 to 18 points. The higher the score, the more likely the person being
sentenced will reoffend.
An offender’s criminal record has long been a part of the
sentencing process. In Pennsylvania, current sentencing guidelines take into
consideration an offender’s criminal record. The longer the criminal record,
the more severe the range of potential sentences.
But according to PublicSource.org,
in addition to the information that has routinely been available to judges—prior
record, seriousness of the offense and guidelines—the Commission on Sentencing
is weighing whether judges should also be provided with a report to predict the
offender’s future dangerousness.
Predicting the likelihood that an offender might offend
again is highly controversial.
“This would represent a shift in punishing a person for what
they did do, to what a person might do,” Mark Houldin, policy director for
the Defender Association of
Philadelphia, told Fox43
News in Harrisburg, Pennsylvania. “And we think that is incredibly
dangerous.”
Adding to the concern is one of the factors that would be
part of a tool assessing future “dangerousness.”
Age.
Under the proposal being considered in Pennsylvania, anyone
under age 21 gets five points. Those between 21 and 25 get four. The points
lessen as the offender ages until, at age 49, the offender is not assessed any
points based on age.
An 18-year-old gets five points right out of the gate. If an
offender scores fewer than four points on the assessment, he or she would be
considered a low recidivism risk. If the offender scores 10 or more points, the
offender would be considered a high risk to reoffend. An 18-year-old would
never be considered a low risk, and would be halfway to being a high risk
without even considering any other factors.
Using age as a measure to assess the likelihood of future
criminal behavior seems to fly in the face of other recent reforms in the
criminal justice system.
According to The
Marshall Project, a number of state courts and lower federal courts have
begun to consider whether people between the ages of 18 and 21—the period
psychologists now call “late adolescence”—should have the same kind of special
consideration that juveniles get before they are sentenced.
In 2005, the U.S. Supreme Court ruled that
no person under the age of 18 shall be sentenced to death. Since then the court
has also ruled that a juvenile can’t be sentenced to life without parole for a
non-homicide offense, or to mandatory life without parole.
The Supreme Court has never extended those protections
beyond the age of 18.
The status of young adults is especially confusing in
Pennsylvania. A court last year considered an appeal from a woman who was
sentenced to mandatory life without parole after serving as a lookout, at age
18, during a botched robbery that ended in murder.
The Superior court rejected her appeal, but called 18 an
“arbitrary legal age of maturity,” and said an “honest reading” of the Supreme
Court’s ruling would require courts to reconsider it. The Superior Court En
Banc reheard the matter in October.
The Philadelphia
Inquirer reported that some of the full panel of judges expressed
concern that “someone a day over 18 and someone a day under 18 are treated
differently,” and suggested the matter deserved closer examination.
Last year, a Kentucky court
found that it was unconstitutional to sentence to death those who were
younger than 21 at the time of their offense.
Earlier this year, a federal
court in Connecticut found that a man, who had been sentenced to
life in prison without the possibility of parole for murders committed at age
18, should be resentenced. The court ruled that “the hallmark characteristics
of juveniles that make them less culpable also apply to 18-year-olds.”
In Pennsylvania, the significance of “late adolescence”
appears to be very different if one is assisting a judge in sentencing as
opposed to reviewing a sentence already imposed.
The Commission on Sentencing has scheduled a series of
hearings to get public feedback from social scientists, criminologists,
practitioners and activists.
Rethinking incorporating age into the assessment tool for
“dangerousness” should be part of the debate.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
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