Risk Assessment Tools in Sentencing: Do They Help or Harm?

Actuarial risk assessment tools are scoring systems that try to predict whether a person will commit another crime. Many courts use them at sentencing, and they are controversial: supporters say they make sentences more consistent, while critics say they can deepen bias.

This is Part 1 of a three-part series based on an essay by law professor Jessica Eaglin. Her point is that these tools do offer some insight, but most research on them looks only at the data and misses the bigger picture. Their main purpose is to identify people who are at risk of reoffending.

The debate over how to use them

These tools run on statistics, so most research about them relies on the same statistics. As a result, the debate is shaped almost entirely by what the data says.

Eaglin argues that it is irresponsible to look only at data-centered research. We also need to look at the ideas and politics behind sentencing reform. Without that, she says, we cannot tell whether these tools help or hurt.

Her goal is to widen the conversation so that it includes how race and gender play out in the prison system.

She also warns that calling these tools "new" is a dangerous assumption. To understand why they became popular, we need to know where they came from. And if we keep using them, we need to face the biases they may carry.

Why the tools became popular

Eaglin describes how the U.S. prison population grew sharply starting in the 1970s, driven in part by heavy policing of poor communities of color. Longer and harsher sentences put more people behind bars.

The original article reported that by 2009, one in every 100 people was behind bars, and that one in three Black men would be incarcerated at some point in their lives. (These figures are from the original 2020 article and reflect estimates from that era. They have not been updated.)

By the late 2000s, there was broad agreement that criminal justice reform was not just needed but required.

Risk tools offered one answer. Here is how they generally work:

• The tool looks at a person's history to estimate the chance they will reoffend, compared with people who committed similar crimes.
• It sorts the person into a risk group, usually low, medium, or high.
• The court then uses that score in deciding the sentence.

That sounds reasonable in theory. But how the tools are used in practice raises fair concerns.

Supporters say the tools help courts run smoothly and treat people more consistently. Critics say the tools reflect many social biases, so they can deepen racial inequality and other built-in prejudice across the prison system.

According to Eaglin, more than 30 states use these tools, and many make them a required part of sentencing.

Part 2 looks at the history of these tools.

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 2: The History of Actuarial Risk Assessment Tools and Part 3: Actuarial Risk Assessment Tools and the Future.

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