As previously discussed, actuarial risk assessment tools are not new. It is only their modern application that marks them as such. This attitude may prevent positive prison reform in the future, as these tools reflect ingrained biases in the current system. Supporters of actuarial risk assessment tools argue that they are fairer because they rely on standardized data. That data, in theory, provides a catered, but uniform sentence for the offender. 

Critics argue that although this theory holds water, it does little to address the individualized needs of a person. Many of these tools consider an offenders background, which may include birthplace, age of first offense and education level. These factors create a standard of bias that influences the sentences of those convicted of similar crimes. Furthermore, this helps to further any biases inside our justice systems.

Selective Incapacitation

Although these tools do provide an opportunity for a fairer sentencing system, their ability to filter out human biases does not make them ideal. The true reason these tools are being used is mainly because they present this ideal of fair punishment. Their widespread usage now stems from the idea that they can identify individuals who are at risk of re-offending. This theoretically means that only high-risk offenders would end up incarcerated for longer periods of time.

Despite this, low risk or no risk offenders still face the possibility of longer sentences. As mentioned earlier, these risk assessment tools contain certain biases in their calculations. These biases create unfair circumstances for marginalized populations. And even if the internalized biases were addressed, there’s no guarantee that they would be permanently eliminated from the justice system. So, in their current form, these tools do not provide a means of permanently reducing incarceration rates.

Also, the same argument can be made for sentencing guidelines. Although they are solid in theory, they are less so in practice. This is mainly because neither take the political and societal considerations

Addressing Crime Without Sentencing Guidelines or Risk Assessment Tools

If we want to see lasting change in the carceral system, it’s important that we consider other alternatives to prison. For example, individuals with mental health issues, or addictions need access to treatment instead of imprisonment. By allocating the appropriate resources to implement more non-punitive strategies, true reform might be possible. 

Lawmakers must consider the social side of issues when considering sentencing guidelines and appropriate punitive measures. These risk assessment tools only contribute to the issues that society faces today, and without considering that fact, we will see no lasting reform.

In Summary

Actuarial risk assessment tools give sentencing reformers a false sense of security. More critiques need to be applied by considering the history of these tools, as well as their more modern application. Though technical sentencing reform can raise important questions about appropriate punishments, it completely excludes the societal impact. This discussion must help shed light on the fact that these tools cannot be the sole determining factor for criminal reform. Only then can we truly establish the value and worth of these tools.

I would like to note that the original article (cited below) contains much more information than I translated here. Please make sure to give it a look!

Eaglin, Jessica, The Perils of ‘Old’ and ‘New’ in Sentencing Reform (August 7, 2020). NYU Annual Survey of American Law, Forthcoming, Available at SSRN

Read Part 1 here
Read Part 2 here

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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