Pennsylvania’s Commission on Sentencing is weighing whether to use an offender’s age in determining the likelihood of committing a new crime, for a risk assessment tool due this summer. That flies in the face of recent juvenile justice reforms, such as Supreme Court rulings accepting adolescents have diminished responsibility, warns a Pennsylvania attorney.
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.”
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.
Additional Reading: How Race Distorts Risk Assessment for Minority Youth
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.