Are Risk Assessment Tools New? Their Long History in Sentencing

Risk assessment tools are often described as new, but the idea behind them is not. Predicting who will reoffend helped shape parole decisions and the sentencing guidelines of the 1980s, long before today's data-driven tools.

Actuarial risk assessment tools use data about a person, such as age and criminal record, to estimate how likely they are to commit another crime. They are a popular part of sentencing reform, and also a source of debate.

Law professor Jessica Eaglin's research looks at the bigger picture behind these tools. This is part two of our series on her work, and it takes on a common misunderstanding about where these tools came from. The final part of the series follows.

Why They Seem "New"

Many people see these tools as new because they promise fairer, more accurate decisions. They rely on data instead of a judge's gut feeling, and a steady flow of new data forces the tools to change quickly. In that sense, they are "new."

They also seem new because of how they are used. Most past reforms aimed at repeat offenders made sentences longer. For example, mandatory minimums in the 1980s were meant to target "dangerous" offenders. Instead, people at all risk levels got longer sentences, and prison populations grew.

That changed in the early 2010s. Budget and social pressures pushed many states to reduce prison populations. Risk tools became the go-to reform because they offered what seemed the smartest way to identify who was likely to reoffend, and so who could safely serve less time.

In short, they seem "new" because of how they are used: data instead of human hunches, aimed at clearer, more consistent decisions.

Why They Are Actually "Old"

Eaglin argues it is a mistake to call these tools new. Even though they keep evolving, similar tools have existed in other forms for decades.

According to her research, risk prediction helped shape sentencing guidelines in the 1980s. It also played a role in "three strikes" laws, like California's, and similar sentencing rules.

The goal of predicting risk is not new, and neither is using a system to measure it. In the 1980s, reformers built data-based sentencing guidelines to make sentences more consistent. In practice, the federal guidelines mainly limited judges' discretion, and they raised a number of constitutional and social concerns. In 2005, the Supreme Court made the federal guidelines advisory in United States v. Booker because the mandatory system violated the Sixth Amendment.

Sentencing Guidelines vs. Risk Assessment Tools

The two are not the same. Sentencing guidelines mainly focus on how serious the crime was. They consider some facts about the person, but their main job is to narrow a wide range of possible sentences. They aim to make sentences uniform while limiting a judge's influence.

Risk tools work the other way. They focus on the person and predict future behavior. They were not originally built for sentencing. They first helped parole boards and officers decide who was ready for release.

The federal system now uses a risk tool too. Under the First Step Act of 2018, the Bureau of Prisons (BOP) uses a risk and needs assessment system to place people in programs and decide who can apply earned time credits (18 U.S.C. § 3632).

That tool is called PATTERN, and its score matters. To have earned time credits applied toward early release, a person generally needs a minimum or low risk score on recent assessments, or a warden's approval (18 U.S.C. § 3624(g)). If a loved one's score seems wrong, they can raise it with their case manager.

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

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