Risk Assessment in Criminal Sentencing

Abstract

The past several years have seen a surge of interest in using risk assessment in criminal sentencing, both to reduce recidivism by incapacitating or treating high-risk offenders and to reduce prison populations by diverting low-risk offenders from prison. We begin by sketching jurisprudential theories of sentencing, distinguishing those that rely on risk assessment from those that preclude it. We then characterize and illustrate the varying roles that risk assessment may play in the sentencing process. We clarify questions regarding the various meanings of "risk" in sentencing and the appropriate time to assess the risk of convicted offenders. We conclude by addressing four principal problems confronting risk assessment in sentencing: conflating risk and blame, barring individual inferences based on group data, failing adequately to distinguish risk assessment from risk reduction, and ignoring whether, and if so, how, the use of risk assessment in sentencing affects racial and economic disparities in imprisonment.

Risk, Race, and Recidivism: Predictive Bias and Disparate Impact*

“…Currently, risk assessment is considered—and in our view should be considered—within bounds set by moral concerns about culpability (Monahan and Skeem, ). This is consistent with the leading model of criminal punishment (Frase, )—a hybrid of retributive and utilitarian theories called “limiting retributivism” (Morris, ).…”

“…One way to begin unwinding mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections. These research‐based instruments estimate an offender's likelihood of reoffending based on various risk factors (e.g., young age and prior arrests)—and they figure prominently in current reforms (Monahan and Skeem, ). Across the United States, statutes and regulations increasingly require that risk assessments inform decisions about the imprisonment of higher risk offenders, the (supervised) release of lower risk offenders, and the prioritization of treatment services to reduce offenders’ risk (National Conference of State Legislators, ; see also American Law Institute, ).…”

Risk assessment tools in criminal justice and forensic psychiatry: The need for better data

“…On the one hand, mental health professionals may continue to employ coarse demographic variables that result in unnecessary discrimination or stigmatisation. On the other, given growing public concern regarding the use of such variables [36], [37], professionals or policy makers may prematurely remove them from risk assessment tools [38]. Before variables are removed because they are potentially contentious, high quality research that uses transparent methods and presents all relevant outcomes should investigate whether the demographic factors included in current tools add incremental validity to tool performance [34].…”

Judicial appraisals of risk assessment in sentencing

“…The assessment of an offender's risk of recidivism was once a central component of criminal sentencing in the USA. In California, for example, indeterminate sentencing—whereby an offender is given a relatively low minimum sentence and a relatively high maximum sentence and released from prison when he or she is believed to present a low risk of recidivism—was introduced in 1917 (Monahan & Skeem, , ). Ernest Burgess published the first statistical instrument to assess an offender's risk of recidivism in 1928 (Gottfredson & Snyder, ).…”