In the current issue of Judicature, John Monahan and I discuss our work studying the use of risk assessment in sentencing. We write:
Judges are using risk assessment instruments in criminal cases more than ever before. Their role is increasingly prominent at all stages of the criminal justice system, including policing, pretrial detention, sentencing, corrections, and parole.[i] In its 2017 revision, the Model Penal Code prominently endorsed consideration of risk in the sentencing process and specifically urged its use to potentially divert lower-risk defendants to reduced or alternative sentences.[ii] The recently enacted Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person (FIRST STEP) Act, perhaps the most far-reaching federal sentencing reform in a generation, mentions risk no less than 100 times and relies on risk assessments to allocate prison programming and prisoner release.[iii] Each of these approaches seeks to use risk assessment to reduce reliance on incarceration by deprioritizing jail and prison for lower-risk offenders.
To address these pressing questions concerning how judges use risk assessment at sentencing, we conducted a series of studies of decision-making using risk assessment tools. We focused on Virginia, because, in the words of the Model Penal Code: “On risk assessment as a prison-diversion tool, Virginia has been the leading innovator among American states.”[vii] Virginia does not rely on proprietary software, and it makes its risk assessment instrument publicly available. It was also the first state to incorporate risk assessment into its sentencing guidelines to permit alternative sentences for the “lowest risk” drug and property offenders.[viii] Yet, as we describe, the use of risk assessment, even in a completely transparent fashion, still raises concerns and challenges for judges.
In our article, “we discuss what theory informs such a sentencing approach, how the approach was set out in Virginia, and, based upon our studies, how that system has been implemented in practice.”