Actuarial risk assessments are among the most popular tools used in American sentencing reform. However, their usage as sentencing reform tools is the subject of some controversy. Their main purpose is to identify individuals who are at risk of re-offending in the future.

While these tools do provide some insight, research often neglects to mention the bigger picture. This research study, preformed by Jessica Eaglin, discusses the controversy around actuarial risk assessment tools and how society may need to look at the bigger picture. This is part two in the series, which covers the misconceptions involving risk assessment tool origins. The final part will be out next week.

How They are “New” 

Part of the reason actuarial risk assessment tools are so popular is due to a misconception that they are 100% “new”. Specifically, they present viable solutions to sentencing concerns by assuring defendants get fairer sentences. These tools provides a more accurate measurement of true recidivism risk. This is because they rely on data instead of human intuition. This constant influx of new data forces the tools to evolve rapidly. By that consideration, these tools are “new”.

The other reason why they are considered “new” is because of their application as sentence reducers for some defendants. Comparably, most reforms involving recidivism have only increased sentence length. For example, the mandatory minimums introduced in the 1980s made it more likely that “dangerous” offenders would receive longer sentences. But this backfired. Offenders of all risk ended up with much longer sentences, and led to more people behind bars. 

This attitude changed in the early 2010s, when societal and economic pressures forced many states to decrease the number of incarcerated individuals. Actuarial risk assessment tools became the go-to sentencing solution because they offered the smartest recidivism identification method. Thus, they became the go-to for sentencing reform.

In short, they are “new” because of their application. They use data versus human insight to make clearer, more consistent decisions.

How They are “Old”

As stated previously, it would be irresponsible to consider these tools “new”. Despite technically qualifying as new because of their constant evolution, these tools have existed in other forms for years. Actuarial risk assessment tools helped create some of the sentencing guidelines introduced in the 1980s. They also played a role in creating the infamous three-strike law in California, as well as other similar sentencing guidelines.

The desire to minimize risk is not a new concept. Nor is using a systematic approach to identify said risk. In the last few years, sentencing reformers tried to use similar tools to improve judicial oversight. They developed a standardized set of sentencing guidelines based on data to, in theory, improve sentencing. In practice, however, the guidelines only served to reduce judicial discretion. Eventually, these guidelines became non-mandatory, as they raised a number of constitution and societal issues.

Sentencing Guidelines versus Risk Assessment Tools

Of course, sentencing guidelines and risk assessment tools have some key differences. Sentencing guidelines help narrow down a wide selection of appropriate sentences for an offense. Although they do take into consideration some elements of the offenders backstory, they primarily focus on the severity of the crime. They serve to standardize sentencing while limiting judicial influence.

Actuarial risk assessment tools do the opposite. Compared to sentencing guidelines, risk assessment tools are rarely utilized for anything outside of narrowly-focused sentencing standardization. However, that these tools were not intended for sentencing standardization. Originally, these tools and their predecessors assisted parole boards and officers in assessing an offenders rehabilitation.

Read part 1 here.

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

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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