SL&P links to this article by Professor Erin Collins on the use of actuarial risk assessment in the sentencing of criminal defendants. The article is highly critical of the practice, with much smoke about their impropriety when used in sentencing, with the central argument in essence being that such use is "off label."
Let us have background and some context here. For many years, the criticism of mental health professionals who testified about risk was that it was merely speculative, based merely on the professional's experience and hunches. It was no more accurate than chance, which led to the obvious conclusion that it was worthless. That led the push for a more scientific approach; one that was structured and methodical in its approach to measuring risk. Much heavy lifting was done with the result of several risk assessment approaches that are far superior to the armchair prognostications of the past.
But there was a problem: These new tools, particularly the actuarial methods, were too good. They removed speculation from the equation in favor of precision. They left little, really no room for consideration of what researchers call "dynamic factors." That is, actuarial tools only measure what has transpired or cannot be altered: past criminal history, characteristics of victims, previous success or failure with parole. With risk fixed there was no opportunity for rehabilitation; no means to address risk factors that are subject to change: drug and alcohol use, antisocial attitudes, employment, etc. You see, those dynamic factors are ways in which risk can be "adjusted" -- almost always downwards in favor of a more lenient sentence.
Let us have background and some context here. For many years, the criticism of mental health professionals who testified about risk was that it was merely speculative, based merely on the professional's experience and hunches. It was no more accurate than chance, which led to the obvious conclusion that it was worthless. That led the push for a more scientific approach; one that was structured and methodical in its approach to measuring risk. Much heavy lifting was done with the result of several risk assessment approaches that are far superior to the armchair prognostications of the past.
But there was a problem: These new tools, particularly the actuarial methods, were too good. They removed speculation from the equation in favor of precision. They left little, really no room for consideration of what researchers call "dynamic factors." That is, actuarial tools only measure what has transpired or cannot be altered: past criminal history, characteristics of victims, previous success or failure with parole. With risk fixed there was no opportunity for rehabilitation; no means to address risk factors that are subject to change: drug and alcohol use, antisocial attitudes, employment, etc. You see, those dynamic factors are ways in which risk can be "adjusted" -- almost always downwards in favor of a more lenient sentence.
That is not to say that those dynamic factors are unimportant in what we
now call a risk management approach. Indeed, substance abuse is a
monstrous risk factor for violence but it is also quite vexing:
treatment outcomes are poor and determining who just might obtain, and
more importantly, sustain sobriety is notoriously difficult. But try
as we might to include these dynamic factors to support the
rehabilitative ideal, research continuously shows that actuarial methods
are superior in their accuracy.
If public safety is the goal, then as it stands today, actuarial risk assessment makes a lot of sense. For those of us, myself included, who tightly grasp a retributive justification for punishment, then the story is more complicated. Risk must give way to desert. And regardless of one's favored approach to punishment, risk calculations based on secret, proprietary formulas are repugnant to fair minded justice. But let's not kid ourselves: all of these new risk assessment measures are designed to be used in the criminal justice system and punishment is the realm of that system. The better caution against actuarial tools is "we punish someone for what they did, not who they are."
If public safety is the goal, then as it stands today, actuarial risk assessment makes a lot of sense. For those of us, myself included, who tightly grasp a retributive justification for punishment, then the story is more complicated. Risk must give way to desert. And regardless of one's favored approach to punishment, risk calculations based on secret, proprietary formulas are repugnant to fair minded justice. But let's not kid ourselves: all of these new risk assessment measures are designed to be used in the criminal justice system and punishment is the realm of that system. The better caution against actuarial tools is "we punish someone for what they did, not who they are."
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