Against Prevention? A Response to Harcourt's Against Prediction on Actuarial and Clinical Predictions and the Faults of Incapacitation

Abstract

This article reviews Bernard Harcourt's Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (2007), in which he criticizes the use of actuarial prediction methods in the contexts of policing and sentencing. I focus on the latter context. I argue that Harcourt has identified an important, and not exclusively American, trend and develops a valid critique of it that should be pushed further. From a theory of punishment perspective, I argue that Harcourt's critique is no less applicable to clinical prediction methods than to the use of actuarial ones. Harcourt's arguments, however, beg a more general explanation of the flaws of incapacitation as a justification for punishment. If we base our objection to the use of prediction methods on such larger grounds, questions arise as to the legitimacy of other practices that are not considered punitive but rather “regulatory” or “preventive.”

Looking Beyond Risk in Paroling Denying Prisoners

“…In relation to parole, the desire to obtain a confession could be seen as a desire to discipline the prisoner's character (see Harcourt, 2007;Sapir, 2008). It also could be understood as a way to affirm the dissymmetry of forces, and a way to encourage the prisoner to take part in the ritual of producing the penal truth (Foucault, 1995) at the closure of penal continuum-which holds symbolic importance.…”

Race, Prediction, and Pretrial Detention

“…See, for example, Barnes (), Sapir (), Illinois v. Gates (:230–31), Terry v. Ohio (:8–9, 28–31), Schneckloth v. Bustamonte (:219), Gregg v. Georgia (:189), and the U.S. Constitution, amend. IV.…”

“…Barnes suggested that “randomly punishing individuals certainly violates the core notion of fairness that Harcourt criticizes society for ignoring in its hunger for prediction” and while perhaps not the goal, substantial wasting of resources could inhibit criminal justice from reaching its “true goals, such as minimizing crime.” But Barnes also argued that while the concept advocated by Harcourt falls short of its promise, randomization is still quite useful and its correct use could overcome the pitfalls Harcourt has exposed in prediction. Sapir () has put forth additional arguments on this matter. The Fourth Amendment requires all searches and seizures to be reasonable (U.S. Constitution, amend.…”

Race, Prediction, and Pretrial Detention

“…See, for example,Barnes (2008),Sapir (2008), Illinois v. Gates (1983:230-31), Terry v. Ohio (1968:8-9, 28-31), Schneckloth v. Bustamonte (1973:219), Gregg v. Georgia (1976, and the U.S. Constitution, amend. IV.…”

“…Barnes suggested that "randomly punishing individuals certainly violates the core notion of fairness that Harcourt criticizes society for ignoring in its hunger for prediction" and while perhaps not the goal, substantial wasting of resources could inhibit criminal justice from reaching its "true goals, such as minimizing crime." But Barnes also argued that while the concept advocated by Harcourt falls short of its promise, randomization is still quite useful and its correct use could overcome the pitfalls Harcourt has exposed in prediction Sapir (2008). has put forth additional arguments on this matter.…”