Erin Collins has this notable new commentary at The Crime Report under the headline "The Perils of 'Off-Label Sentencing'." I recommend the piece in full, and here are excerpts:
Current criminal justice reform efforts are risk-obsessed. Actuarial risk assessment tools, which claim to predict the risk that an individual will commit, or be arrested for, criminal activity, dominate discussions about how to reform policing, bail, and corrections decisions. And recently, risk-based reforms have entered a new arena: sentencing.... Actuarial sentencing has gained the support of many practitioners, academics, and prominent organizations, including the National Center for State Courts and the American Law Institute. [see Model Penal Code: Sentencing § 6B.09]
This enthusiasm is, at first blush, understandable: actuarial sentencing seems to have only promise and no peril. It allows judges to identify those who pose a low risk of recidivism and divert them from prison. Society thus avoids the financial cost of unnecessarily incarcerating low-risk individuals.
And yet, this enthusiasm for actuarial sentencing ignores a seemingly crucial point: actuarial risk assessment tools were not developed for sentencing purposes. In fact, the social scientists who developed the most popular risk assessment tools specified that they were not designed to determine the severity of a sentence, including whether or not to incarcerate someone. Actuarial sentencing is, in short, an “off-label” application of actuarial risk assessment information.
As we know from the medical context, the fact that a use is “off-label” does not necessarily mean it is ill-advised or ineffective. And, indeed, many contend that actuarial sentencing is a simple matter of using data gleaned in one area of criminal justice and applying it to another. If we know how to predict recidivism, why not use that information broadly? Isn’t this a prime example of an approach that is smart — rather than tough — on crime?
As I contend in my article, Punishing Risk, which is forthcoming in the Georgetown Law Journal this fall, the practice of actuarial sentencing is not that simple, nor is it wise. In fact, using actuarial information in this “off-label” way can cause an equally unintended consequence: it can justify more, not less, incarceration — and for reasons that undermine the fairness and integrity of our criminal justice system.
The actuarial risk assessment tools that are being integrated into sentencing decisions, such as the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool, and the Level of Services Inventory-Revised (LSI-R), were designed to assist corrections officers with a specific task: how to administer punishment in a way that advances rehabilitation. They are intended to be used after a judge has announced the sentence. They are based on the Risk-Need-Responsivity principle, according to which recidivism risk is identified so that it can be reduced through programming, treatment and security classifications that are responsive to the individual’s “criminogenic needs” (recidivism risk factors that can be changed).
Sentencing judges, in contrast, do not administer punishment but rather determine how much punishment is due. In doing so, they may use actuarial risk predictions to advance whatever punishment purpose they deem appropriate. While they may decide to divert a low-risk individual from prison in order to increase their rehabilitative possibilities, they may also decide to sentence a high-risk individual more harshly — not because doing so will increase her prospects of rehabilitation, but because it will increase public safety....
The tools measure risk based on a range of characteristics that are anathema to a principled sentencing inquiry, such as gender, education and employment history, and family criminality. Perhaps consideration of these factors makes sense if the predictive output is used to administer punishment in a way that is culturally competent and individualized.
But in the sentencing context, it allows the judge to punish someone more harshly based on a compilation of characteristics that are inherently personal and wholly non-culpable, and often replicate racial biases that pervade other areas of the criminal justice system. In other words, actuarial sentencing allows judges to defy the well-established tenet that we punish someone for what they did, not who they are....
Incorporating these tools into sentencing conflates recidivism risk, broadly defined, with risk to public safety. If we want to reduce our reliance on public safety, we must refine—rather than expand — the risk that counts for sentencing purposes.
Some of many prior related posts with links to articles and commentary on risk assessment tools:
- "Punishing Risk"
- "Principles of Risk Assessment: Sentencing and Policing"
- "Assessing Risk Assessment in Action"
- "Moneyball Sentencing"
- "Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law"
- "The Use of Risk Assessment at Sentencing: Implications for Research and Policy"
- "In Defense of Risk-Assessment Tools"
- "Risk and Needs Assessment: Constitutional and Ethical Challenges"
- "Under the Cloak of Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity"
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