When a judge sentences a defendant, one of the factors that he or she is required to consider and discuss on the record is the protection of the public from further criminal offenses. Judges are also required to consider the character of the defendant (or the character of the accused, as it is sometimes put—but we are beyond the accusation stage at sentencing). Why should judges consider the defendant’s character? Is it proper for a defendant to receive different punishments based solely on a judge’s assessment that the defendant is gluttonous, immodest, greedy, uneducated, lazy, unpatriotic, wasteful, or cowardly rather than generous, educated, modest, ambitious, frugal, patriotic, or brave? Should we care if a defendant is employed in industries that many in society consider immoral such as the exotic dancing industry and therefore that he or she possesses “bad character”?
I believe the proper reason to assess the character of the defendant when imposing criminal punishment is to assess only those character traits that impact the probability that the defendant will or will not re-offend. That character assessment is then used to make a judgment about the need to protect the public. Punishing a defendant for character traits that do not impact the need to protect the public from further criminal offenses is beyond the boundaries of proper criminal punishment. In a pluralistic, democratic society, a defendant is only rightly punished for a violation of the criminal law, and not for a violation of the sentiments of a judge or segments of society.
An assessment of the character of the defendant by a judge involves an examination of historical, static conditions, such as his or her criminal record, educational level, and employment history. Further, interviews by police officers or presentence report writers may also provide insight into the thought processes of defendants and therefore insights into what are considered dynamic criminal factors, or criminal needs.
What does the research say about which character traits are associated with the risk to re-offend? Andrews and Bonta (2010) reported the results of eight different met-analyses that calculated the correlation between various factors and criminal behavior.[i] These researchers found that four factors that were consistently more correlated to criminal behavior than others. They call these factors the “big four”, and they have correlation coefficients averaging .26.[ii]
The first of the “big four” is a history of antisocial behavior. This factor includes the number of times that the defendant was involved in antisocial behavior such as arrests, convictions, probation violations, rule violations within prison; the different types of antisocial behavior; and early onset of that behavior. The severity of the offenses is not part of this factor.[iii]
The second of the “big four” is the defendant having an antisocial personality pattern. Andrews and Bonta (2010) define it as “In everyday language: impulsive, adventurous, pleasure-seeking, generalized trouble (multiple persons, multiple settings), restlessly aggressive, callous disregard for others.”[iv]
The third of the “big four” is antisocial cognition. This factor includes thought processes that are favorable for committing a crime, such as rationalizing crime, such as the victim deserves it, the victim liked being assaulted, society is unfair, societal rules are stupid, the criminal justice system is corrupt. Also included in this factor are attitudes of defiance toward the rules and an identification with criminals.[v]
The fourth of the “big four” is antisocial associates. How closely is the person associated with other individuals who support the defendant’s criminal behavior? What is his social support for crime? Are his friends and family all involved in criminal activity? [vi]
These risk factors have been consistently identified as being associated with criminal activity. Other risk factors have been shown to be associated with criminal activity to a lesser extent than the big four. I will address those factors and some factors that have not been associated with criminal behavior in another blog entry.
[i] Andrews, D.A. and James Bonta, (2010), The Psychology of Criminal Conduct, 5th Edition, Mathew Bender and Company, New Providence, NJ, p. 65.
[ii] Ibid, p. 64
[iii] Ibid. p. 58
[iv] Ibid. p.58
[v] Ibid. p. 59
[vi] Ibid. p. 59
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