Can Risk Scores Make Sentencing Fairer? Limits and Alternatives

Actuarial risk assessment tools, which try to predict who will commit another crime, are not a reliable fix for over-incarceration on their own. The tools themselves are not new; only the way they are used today is. Treating them as new can block real prison reform, because they reflect biases already built into the system. This is Part 3 of our series based on an essay by law professor Jessica Eaglin.

Supporters say the tools are fairer because they rely on standardized data. In theory, that data leads to sentences that are both tailored and consistent.

Critics answer that, even if the theory holds water, it does little to address what each person actually needs. Many tools look at background facts such as birthplace, age at first offense, and education level. Those factors can build bias into the sentences of people convicted of similar crimes, which spreads the biases already inside our justice system.

The promise of "selective incapacitation"

These tools do offer a chance at a fairer sentencing system. But the claim that they filter out human bias does not make them ideal. They are used so widely because they promise fair punishment and the ability to spot people at risk of reoffending.

"Selective incapacitation" means locking up longer only the people most likely to reoffend. That is the main promise of these tools: high-risk people get longer sentences, and low-risk people do not.

In practice, low-risk people can still get longer sentences. Because of the biases built into the tools, marginalized groups can be treated unfairly. Even if those biases were fixed once, nothing guarantees they would stay fixed.

So, as they work today, these tools are not a reliable way to bring down incarceration rates.

The same point can be made about sentencing guidelines. They look sound on paper but fall short in practice, because neither the guidelines nor the tools account for the political and social forces behind them.

Addressing crime without relying on these tools

Lasting change requires real alternatives to prison. People with mental illness or addiction, for example, need treatment, not a cell. Putting resources into treatment and other non-punitive approaches could make true reform possible.

Lawmakers need to weigh the social side of crime when they write sentencing rules and decide on punishments. In the author's view, these tools only add to the problems society faces today, and without facing that fact there will be no lasting reform.

Eaglin's conclusion

Eaglin argues that risk assessment tools can give reformers a false sense of security. Their history matters as much as their current use. Technical fixes to sentencing can raise good questions, but they leave out the impact on communities. These tools should not be the only deciding factor in criminal justice reform, and only once that is understood can their real value be judged.

The original essay has much more detail than this summary and is worth reading.

Source: 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 and Part 2.

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