Judging the Use of Risk Assessment in Sentencing

Abstract

Judges are using risk assessment instruments in criminal cases more than ever before. The role of risk assessment is increasingly prominent at all stages of the criminal justice system, including policing, pretrial detention, sentencing, corrections, and parole. In its 2017 revision, the Model Penal Code prominently endorsed consideration of risk in the sentencing process, and specifically, to potentially divert lower-risk defendants to reduced or alternative sentences. The 2018 FIRST STEP Act, perhaps the most far-reaching federal sentencing reform in a generation, mentions risk no less than one hundred times, and relies on risk assessments to allocate prison programming and prisoner release. In this Article, we focus on the role of a sentencing judge in using risk assessment.

Keywords: risk assessment, alternative sentences, First Step Act