Exposing Risk-Based Sentencing

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Juvenile Detention

Did you know that at least 20 states have sentencing policies that allow them to determine the severity of a criminal sentence based on factors like employment and marital status, age, education, finances, neighborhood, and family background?

In effect, “evidence-based sentencing” is a tool to predict a defendant’s future crime risk based on demographic data and not just their criminal history. Many, including senior members of the Department of Justice, are worried, however, that the practice is unfair and that — by taking into account more than the crime committed — the practice is unconstitutional.

In a recent letter to the United States Sentencing Commission, Jonathan J. Wroblewski, director of the Justice Department’s Office of Policy and Legislation, explained the department’s concerns:

While we are excited about the promise of using analytics in risk and needs assessments and otherwise in furtherance of effective reentry, we are troubled by another use of these tools in sentencing and corrections: the increasing role of risk assessment tools in the sentencing phase of criminal cases, specifically in determining how long an individual will be imprisoned for a criminal conviction. As we noted, risk assessments – through the Salient Factor Score – had a prominent place in the federal parole system in place prior to the Sentencing Reform Act and were a determinant of the amount of time a federal offender served in federal prison for an offense. The Sentencing Reform Act was enacted to reduce the role of such assessments and to base imprisonment terms largely, but not entirely, on the crime committed and proven in court.

First, most current risk assessments – and in particular the PCRA, which is specifically mentioned in the pending federal legislation – determine risk levels based on static, historical offender characteristics such as education level, employment history, family circumstances and demographic information. We think basing criminal sentences, and particularly imprisonment terms, primarily on such data – rather than the crime committed and surrounding circumstances – is a dangerous concept that will become much more concerning over time as other far reaching sociological and personal information unrelated to the crimes at issue are incorporated into risk tools. This phenomenon ultimately raises constitutional questions because of the use of group-based characteristics and suspect classifications in the analytics. Criminal accountability should be primarily about prior bad acts proven by the government before a court of law and not some future bad behavior predicted to occur by a risk assessment instrument. Read more.

Wroblewski also explained in his letter that utilizing such methods to determine prison sentences could have a “disparate and adverse impact on offenders from poor communities already struggling with many social ills.”

“The touchstone of our justice system is equal justice,” wrote Wroblewski “and we think sentences based excessively on risk assessment instruments will likely undermine this principle.”

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