There's a lot of fun things in life: going to Water World … quinceañeras … but something that has a permanent residency on the "List of Thoroughly Un-Fun Activities," is being punished for a crime you haven't committed yet. But, that doesn't stop it from happening.

Here, we enter the world of futurecrime. Also called "evidence-based sentencing," it explains use of data-driven "risk assessment factors" in the sentencing phase of criminal trials. People convicted of crimes are given a "risk score" based on some (very obscure) formula that claims to predict what their risk is of committing more crimes in the future.

If that sounds Orwellian — or like a Tom Cruise movie with an unsatisfying amout of sex in it — then you're getting it already!

Futurecrime, as you can imagine, is highly controversial. However, punishing people for crimes they haven't committed yet has its pundits. Despite both the Supreme Court's and the former U.S. Attorney General Eric Holder's opposition to the practice, 20 states (including Colorado) have adopted this sentencing measure for their own judicial systems. Some even require risk scores to be factored into every decision. However, there doesn't seem to be a place where one can easily access statistics on people that have been sentenced for futurecrimes — which highlights the need for more unified reporting of its effects.

Advocates of futurecrime profiling argue that using data to determine crime risk gives sentencing a scientific foundation, allowing better tailoring to crime-prevention goals and convict-specific punishments. They also praise it for being able to reduce incarceration by helping the justice system weed out offenders who can be safely diverted from prison.

The problem, however, is that many of the factors used to predict someone's likelihood of committing a future crime are factors that are beyond the control of the convict. Race, socioeconomic status, employment status, and family member's criminal history all factor in to the equation.

It's a complicated issue, and one that is likely the current subject of a ballot, petition or legal measure in your state. And even though evidence-based practicing has been around for decades, little light has been shed about it outside the criminal justice communities. So, we thought we'd walk you through some of the pros and cons of futurecrime sentencing, so you can figure out for yourself what kinds of feels you need to have about it.


1. It (theoretically) decreases recidivism and crime rates.

Although the U.S. has the highest incarceration rate on planet Earth, there are three times more offenders on probation than in prison. Recidivism (the tendency to commit another crime after someone has been punished) is more common than a 3 a.m. drunk text from your ex. Almost 60 percent of convicted offenders will commit another crime after they're released from prison, and 40 percent of people on probation will violate the terms of it.

Using risk factor assessment, the practice of futurecrime would uses a mathematical formula to decide what the best punishment for someone is. Most of the time, that comes in the form of harsher prison sentences or longer, more restrictive probation.

By that token, having people who are "statistically" more likely to repeat a criminal offense behind bars or on probation for longer would decrease crime rates. The worst offenders would theoretically be busy not dropping the soap in prison, or involved in some probation that made burning down buildings to conjure up the ghost of Bernie Mac nearly impossible, to commit additional crimes.

Yes, there are problems with that system … but you'll just have to wait until the "Cons" section to see them. High-five for content organization. Moving on.

2. In most states, someone's risk profile can be used to come up with the right way to punish or supervise them.

Someone's risk profile, which is based empirical investigations of similar crimes as well as socio-cultural factors of the convict in question, quantifies the risk of an offender committing future crimes and elucidates specific treatment options most likely to prevent reoffending. That number can provide insight about the level of supervision and the type of interventions that are most likely to reduce future criminal behavior.

In some cases, that could be a really good thing. Traditional prison sentences don't always work for everyone, as evidenced by the high recidivism rate. Risk profiles are intended to influence rehabilitation options, so it's entirely possible that someone who just needs counseling and probation to convince them to stop robbing dildo stores or whatever, could actually receive that.

But as we'll see here in a second, that's not always as bright-and-sparkly as a reality as it was perhaps intended to be.


1. Risk profiles are, um, how do we put this … extraordinarily racist and classist.

The biggest problem with futurecrime is that risk scores aren't based on the defendant’s actual crime. They're primarily based on prior characteristics that aren't always within the control of the offender. Such as, but not limited to, unemployment, marital status, age, education, finances, neighborhood, and family background — including family members’ criminal history. This means that the poor and other marginalized groups would be, by and large, unfairly subjected to futurecrime bias.

For example, if a poor factory worker from rural Kentucky whose cousin has a DUI were to rob an ATM to feed their family, they might have a higher risk factor value than a wealthier person from Aspen with no family history of crime who, we don't know … stabs someone in the knee with an ice-pick for sport. That sends the message that the state considers certain groups of people threatening based on their identity, which is both toxic and biased.

Currently, there is no persuasive evidence that using these variables adds much predictive value to whether or not a futurecrime will occur. But even if they did improve accuracy, it doesn't justify the sacrifice of fairness or the skewed profiling of specific populations.

We're sure the factors that the formula are based aren't trying to overtly codify the longstanding unspoken rule that poverty is illegal in the United States, but … that's kind of what it does.

2. It's pretty unconstitutional.

The Supreme Court has consistently held that discrimination cannot be justified by statistical generalizations about groups, even if those generalizations are on average accurate. People have a right to be treated as individuals, and individuals often do not conform to group averages.

That's why the U.S. Justice Department sent a letter to the U.S. Sentencing Commission warning against futurecrime. In it, the department stated that, "basing criminal sentences, and particularly imprisonment terms, primarily on such data — rather than the crime committed and surrounding circumstances — is a dangerous concept that will become much more concerning over time as other far reaching sociological and personal information unrelated to the crimes at issue are incorporated into risk tools."

Yeah … if the U.S. Justice Department thinks futurecrime is unconstitutional … it probably is.

A good example of how futurecrime could be considered unjust is the 1983 decision of Bearden v. Georgia. In that case, the court unanimously rejected the state’s contention that a defendant could have his probation revoked because his recent job loss increased his crime risk. The court held that “lumping him together with other poor persons and thereby classifying him as dangerous … would be little more than punishing a person for his poverty.”

… Except that's exactly what futurecrime does, regardless of whether that's its intent or not.

3. The U.S. already has a mass incarceration crisis.

Keeping people in prison for longer might keep them off the streetz, but it will also … keep them in prison for longer. If recidivism rates are at 60 percent, and futurecrime procedures don't prevent first-time offenses from happening, it's possible that prison populations could increase.

Considering each inmate costs states, on average, $24,000 per year, that could cause prison expenditures to skyrocket.

So our final thoughts? You can think what you want about futurecrime, you're a grown ass target market male or female. But regardless of how you see it, the problem isn’t risk assessment itself; it’s basing scores on demographic and socioeconomic factors. Instead, scores could be based on the nature of the crime, past and present conduct, and  other factors within the defendant’s control.

Of course punitive policies should be informed by data, but using data that unfairly singles out marginalized groups of people doesn't really help anything. We doubt many legislators would defend the claim that people should be incarcerated for longer because they are poor. Those judgments aren't as obvious when they're obscured under the blanket of a "risk score," but that doesn't make them fair, or even constitutional.

So, now that you know all this … it's probably a great time to start looking at El Salvedorean real estate.