Not too long ago I took a case in a county about 2 hours away from Columbus. After getting a nice plea worked out for my client, we showed up for sentencing. As is my client’s right, I asked to review the pre-sentence investigation report prepared by the probation department after my client enters his plea. Inside this PSI was a very colorful report with a handful of smaller pie charts that resembled little dashboards with an arrow that pointed to either green, yellow or red like a tachometer on a race car.
I noticed that most of my client’s “scores” put the needle in the green range (low risk of re-offending) but there were a few instrument clusters in the yellow and red (moderate and high risk respectively). I’d spent many months getting to know the client, his family, his background and his character. After 2 decades of representing people charged crimes, I’ve got a good read on who may be back in front of a judge and who will never be seen again. This client was not one we needed to worry about re-offending.
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So, what exactly were these charts telling the judge? Who gathered the data? What was the data? Who put this scoring model together? Is sentencing in Ohio and the United States being outsourced to corporations who claim to be able to predict future crime? Is this even constitutional? I dug deeper . . .
In Ohio, it is simply referred to as “ORAS” – Offender Risk Assessment Score. It is growing in popularity and now Congress is looking to make it part of the next generation of sentencing reform. Sounds good on the surface but what exactly is being evaluated?
The ORAS in Ohio is far from transparent to defendants and their attorneys. I’ve dug into ORAS and found the questions. I now work with my clients so they understand the questions that will be coming and making sure my client understands that they will be penalized if they answer that drugs can be found in their neighborhood (every neighborhood has weed and more if you look). Some of the questions are ambiguous and loaded.
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At this point, I am putting the ORAS and evidence based sentencing front and center in all my client cases. I anticipate right now significant and successful constitutional challenges on the horizon. To call this a “science” (which is what is being sold to us) opens a forbidden door that ought to remain closed – predicting future crimes and punishing before those crimes occur.