The Distinction between Dangerousness and Culpability

class of the third week of the semester (i.e., September 14th). No late papers will be accepted.

CJBA 120
Fall 2021
Professor Heffernan

Thought Experiment 3: The Distinction between Dangerousness and Culpability

Bruce and Laura are 18-year old seniors in high school. Last month, each of them got into a serious fight with other students at the school. Each knocked out a tooth of another student, thereby making it necessary for the injured student to have extensive dental and medical surgery. Each was charged with, and convicted of, aggravated assault, a felony that carried a maximum penalty of four years in prison.

At sentencing, the judge in charge of both cases confronted substantially different risk profiles concerning the two. Laura had grown up in an intact family. Her high school grades were high; before she’d gotten into the fight, she’d been accepted at a well-known four-year college. In contrast, Bruce had grown up in a broken home. His father had abandoned the family when he was four. His mother, who had received unemployment benefits on three occasions when Bruce was younger, had been investigated twice for beating up Bruce, though in each case she hadn’t been charged with a crime. Bruce’s high school grades hadn’t been strong; he wasn’t accepted at any four-year college although he had been offered a chance to attend a community college.

In relying on this information, a court officer gave Laura a rating of 4.2 out of 5 as a risk-assessment profile, with 5 meaning that someone was highly unlikely to recidivate and 0 meaning that the person was highly likely to do so. Bruce, on the other hand, received a 1.7 rating. The ratings were produced by an algorithm that drew on data concerning hundreds of thousands of offenders. Among the factors taken into account by those producing the algorithm were: gender (males were classified as riskier than females), age (teenagers were classified as riskier than older people), family background (teenagers from fatherless homes were classified as riskier than those from intact homes), family income (with low income treated as a risk factor), and school grades (those with low grades were deemed riskier than those with high grades). The officer who prepared the risk assessment scores presented them to the sentencing judge, who was authorized to consider them when imposing punishment on Bruce and Laura.

Once the risk assessment scores were made available to the defendants, Bruce protested that no sentencing decision should be based on his low score. Sentencing should be based on culpability (a backward-looking consideration), he argued, not on predictions of dangerousness (a forward-looking consideration). He supplemented this argument with a critique of the factors employed by the algorithm essential to the score. He hadn’t chosen to be born one gender rather than another, he pointed out; he didn’t choose to be a teenager; he wasn’t responsible for his mother’s modest income; and he most emphatically hadn’t chosen to have his father abandon the family. At most, he was responsible for his low grades in school—and even these were attributable to the accumulated disadvantages he confronted as a child.

Not surprisingly, Laura welcomed the risk assessment score. In responding to it, her lawyer requested a sentence of two years’ intensive probation but no prison term.

You are a clerk to the sentencing judge in the case. If culpability considerations alone are taken into account, the judge realizes, each should receive approximately the same sentence. The judge wants your opinion as to whether the algorithm should also be considered—and, if so, what weight to accord it. The judge has identified the following options, though others might be considered.

(1) Consider culpability alone in imposing sentences In adopting this approach, the two
defendants would receive similar sentences. The focus at time of sentencing would be entirely retrospective.

(2) Consider a modified version of risk assessment along with culpability In adopting this
approach, the judge would disregard three factors—gender, family income, and broken/intact home—but would give weight to each defendant’s grades. In disregarding the three factors, the prediction of future dangerousness would be considerably less accurate than if they were included. Moreover, it’s not clear what weight to give culpability as distinguished from dangerousness. Bruce would probably receive a somewhat longer sentence than Laura.

(3) Consider the risk assessment score in its entirety along with culpability. In adopting
this approach, the judge would give full weight to all the factors used to prepare the risk assessment score. It’s not clear what weight to give culpability as distinguished from dangerousness. Bruce would probably receive a substantially longer sentence than Laura.

(4) Consider only the risk assessment score In adopting this approach (which Barbara
Wootton anticipated), the judge would disregard culpability considerations and instead would focus exclusively on predictions of dangerousness. Laura might be sentenced only to probation, and Bruce might be confined until experts deemed no longer dangerous to others.

Write an essay of at least three paragraphs in which you adopt one of these possibilities
and explain why you believe two of the others should be rejected. Each paragraph should begin with a topic sentence that signals to the reader the argument it will advance. The topic sentence should be followed by further sentences that support it.

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