“Ideological Testing”

The title of this post is the title of this new article now available via SSRN authored by Renagh O’Leary. Here is its abstract:

This Article describes and critiques a practice I call the ideological testing of criminal defendants.  Ideological testing occurs when state actors within the criminal legal system elicit and evaluate the defendant’s views of the criminal legal system.  For example, as part of the presentence investigation process in some jurisdictions, probation or parole officers are required to ask defendants questions like, “Do you think the criminal justice system is fair?,” “Do you feel you have been treated fairly by the criminal justice system?,” and “How do you feel about the police that arrested you?”

This Article introduces the concept of ideological testing and describes how it occurs at multiple sites within the criminal legal system, including presentence investigations, risk assessments, and parole hearings.  In theory, ideological testing helps state actors predict a defendant’s recidivism risk and assess their remorse.  Where a defendant expresses critical views of the criminal legal system — such as the view that the system is unfair, or that their sentence was excessively harsh — this supposedly indicates their “criminal thinking,” lack of remorse, and failure to accept responsibility.

Ideological testing undermines the core First Amendment value of governmental respect for dissent.  It also denies the reality of pervasive injustice within the criminal legal system and deepens racial injustice.  This Article calls on advocates to challenge ideological testing on First Amendment grounds and proposes the elimination of ideological testing as a matter of policy.