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Why Do We Resist Individualized Justice?

California State Capitol Building

Photo by Justin Brockie | flickr creative commons

In the interest of justice and efficient use of resources, individuals whose characteristics show that incarceration serves no purpose should be released. As a practical matter, many will be very young or very old, but whether they merit non-incarceration alternatives should be evaluated on their individual, not demographic, characteristics.

Unfortunately, supporters of alternative sentencing and decarceration often advance these worthwhile causes by exploiting “demographic determinism.” For example, the legislative sponsor’s fact sheet for Senate Bill 224 (enhancing parole eligibility for prisoners age 50 or older who have served at least 15 years) states: “Given that elderly prisoners … have a lower risk of recidivism, compared to other age groups, California should release back into society those individuals who are no longer deemed public safety risks." Other supporters make similar statements.

This is an example of what I call “statistical bigotry”: in this case, promoting stereotypes of older inmates as safe to release and younger inmates as greater “public safety risks” solely because of their age. True, CDCR statistics show that prisoners released at age 50 or older have three-year recidivism rates (52 percent) lower than those released at age 18-24 (67 percent).

However, the same CDCR statistics also show that on average, Native Americans released from prison have higher recidivism rates (70 percent) than Asian Americans (51 percent); males recidivate more (67 percent) than females (49 percent), and parolees from San Joaquin County recidivate more (76 percent) than ones from Los Angeles (50 percent). Should legislation fast-track parole for Asian-American women from L.A. while denying Native Americans from Stockton?

Progressives rightly reject race, gender, geography, ethnicity, and other demographics as markers for disparate treatment even when “statistics” might seem to justify them. What is hard to explain is why everyone continues to use age, which is just as arbitrary and also dangerous.

For decades, social scientists have fixated on the popular though questionable notion that young people are “biologically driven” to risk-taking and crime. In reality, youth crime largely flows from social disadvantage concentrated in younger populations, not their young age. Within every race and locale, youth and young adults are much poorer than older adults – a reality criminal justice theorists continue to ignore.

Good groups that exploit ageist arguments – the American Civil Liberties Union, Sentencing Project, Human Rights Watch, and yes, CJCJ – to advance otherwise good policy goals contribute to the climate subjecting the young and poor to harsher treatment. Despite pretenses otherwise, youths suffer vastly more arrests than their crime volume warrants, and they are incarcerated longer than adults for the same offenses—“do adult crime…do more than adult time,” as the Office of Juvenile Justice and Delinquency Prevention put it. Discriminatory policies favoring the old worsen disproportionate minority confinement (inmates age 50 and older are twice as likely to be white as inmates under age 25).

If we want to minimize individual injustices, mass statistics are irrelevant. The principle should be simple: demography will not be a factor in criminal justice decisions. CDCR does employ the California Static Risk Assessment and related measures to assess individual factors that prove more accurate predictors of recidivism than demographics. Yet, progressives, who are supposed to be concerned with poverty and inequality rather than “innate” criminality, have no problem simply using age.

Those supporters of SB 224 who dispute any intent to stigmatize younger ages can amend the bill to remove the age limit. The bill’s purpose to release “those individuals who are no longer deemed public safety risks” is more broadly and fairly served by greater eligibility for all inmates who have served at least 15 years – an individual, not demographic, criterion. An age-neutral approach would also be more statistically justified. Parolees imprisoned for 15 years or more have substantially lower recidivism rates (34 percent) than parolees who served 2-3 years (68 percent).

While using individualized justice criteria (mitigating factors, prior record, criminal capacity, rehabilitation potential, remorse, response to treatment, etc.) would still favor some ages’, races’, and social classes’ winning non-incarceration and release, the result would be both fairer and better for society. We need to start removing arbitrary age limits from California law, beginning with those in SB 224.

Keywords: adult corrections, California, Juvenile justice, legislation, Mike Males, parole

Posted in Blog, Political Landscape

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