Risk assessment in sentencing decisions: a remedy to mass incarceration?

Abstract

Purpose The legal system’s use of risk assessment has grown exponentially over the past several decades. Empirically validated risk measures are commonly implemented in parole, bail, civil commitment, and presentence proceedings. Despite their growing popularity, both policy-makers and legal scholars question their moral and legal acceptability, particularly in presentence proceedings. The purpose of this paper is to assess the current role of risk assessment in sentencing through an examination of the instrument currently under construction in the state of Pennsylvania. Design/methodology/approach Drawing on the current state of the literature, this paper evaluates the current use of risk assessment in criminal sentencing and discusses its consequences, both positive and negative. Findings Four areas for improvement in the use of risk assessment in sentencing were identified. Recommendations for change are proposed. Practical implications While the use of risk assessment within the legal system has significantly increased over the past several decades, the incorporation of risk assessment in presentence proceedings is a relatively new practice. This paper provides readers with insight on the appropriateness of using risk assessment in this context and provides suggestions for reducing ethical concerns. Recommendations for increasing the validity and clinical utility of these instruments are also discussed. Originality/value Although the literature on the use of risk assessment in legal proceedings is dense, relatively little is written about their use in criminal sentencing. This paper introduces readers to this concept by examining a risk measure proposed for use in the state of Pennsylvania’s presentence proceedings. The authors discuss concerns and propose recommendations for the future use of risk assessment in this setting.

Persistence in incarcerations: global comparative evidence

“…Variables in the conditioning information set include: perceptions of criminality; security officers and polices; political instability; weapons imports; displaced persons; and military expenditure. While these indicators are potential determinants of incarcerations (Mallet, 2015;Wood, 2015;D'Amico and Williamson, 2015;Rao et al, 2016;Kopkin et al, 2017;Olashore et al, 2017;Wilderman and Wang, 2017;Kjellstrand, 2017), the expected signs and effects are contingent on specific fundamental characteristics.…”

“…Second, the extant literature has failed to engage the persistence of incarcerations. The contemporary literature has fundamentally focused on inter alia: risk assessment in sentencing decisions as a remedy to mass incarceration (Kopkin et al, 2017); intersectional analysis on parallels between mass deportation and mass incarceration (Tanya, 2017); factors affecting the use of drug during incarceration (Rao et al, 2016); the role of legal origins in cross-country incarcerations (D'Amico & Williamson, 2015); whether restorative justice reduces incarceration (Wood, 2015); the incarceration of substantially traumatized adolescents (Mallet, 2015); factors of delinquency among incarcerated male juveniles (Olashore et al, 2017); nexus between public health, mass incarceration and inequality (Wilderman & Wang, 2017) and supporting strategies for children and families that are affected by parental incarceration (Kjellstrand, 2017).…”

Valid or voodoo? A qualitative study of attorney perceptions of risk assessment in sentencing and plea bargaining

“…The bulk of research on risk assessment and sentencing focuses on judicial decision-making. This judicial focus of the extant literature aligns with the mainstream understanding of how sentencing works-namely, that judges ultimately decide how long and in what manner a convicted defendant will serve a sentence (Kopkin, Brodsky, & DeMatteo, 2017). Recent empirical scholarship on sentencing has expanded to examine the impact of other court actors, such as prosecutors and defense attorneys, on the sentencing process (DeMichele et al, 2018;Redlich, Bushway, & Norris, 2016;Redlich, Wilford, & Bushway, 2017;Redlich, Yan, Norris, & Bushway, 2018).…”

An update and expansion on the role of the Violence Risk Appraisal Guide and Historical Clinical Risk Management‐20 in United States case law

“…Finally, some jurisdictions (e.g., Pennsylvania, Utah, Wisconsin) have begun to employ actuarial risk assessment formulas to the front end of criminal sentencing (as opposed to the parole‐eligibility stage), in an effort to identify high‐risk offenders and reduce prison overcrowding (Monahan & Skeem, ). The use of statute‐driven front‐end risk assessments has been criticized by some (Kopkin, Brodsky, & DeMatteo, ; Wroblewski, ) as being potentially aversive to racial and ethnic minorities. In State v. Loomis () the Wisconsin Supreme Court held that the trial court's use of such a formula did not violate a defendant's due process.…”