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May 20, 2018

"Punishing Risk"

The title of this post is the title of this new article on SSRN authored by Erin Collins.  Here is the abstract:

Actuarial recidivism risk assessments — or statistical predictions of the likelihood of future criminal behavior — drive a number of core criminal justice decisions, including where to police, who to release on bail, and how to manage correctional institutions.  Recently, this predictive approach to criminal justice has entered a new arena: sentencing.  Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country.  This enthusiasm is understandable.  Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration.

And yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing.  In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone.  And yet, that is precisely how those who endorse actuarial sentencing — including the American Law Institute in the recently revised Model Penal Code for Sentencing — suggest they should be used.

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information.  This Article re-examines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences.  Specifically, it contends that this practice distorts, rather than refines, sentencing decisions.  Moreover, it may increase reliance on incarceration — and for reasons that undermine the fairness and integrity of the criminal justice system.

May 20, 2018 at 10:29 PM | Permalink


Leah Litman, whose paper was cited recently, flagged this one:

Judicial Politics and Sentencing Decisions
Alma Cohen, Crystal Yang

NBER Working Paper No. 24615
Issued in May 2018
NBER Program(s):Law and Economics, Public Economics

"This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively. These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion."


Posted by: Joe | May 21, 2018 10:41:12 AM

Hi, Joe. The implication of that study is that Democratic Party judges do not care about black crime victims as much as Republican Party judges do.

Posted by: David Behar | May 21, 2018 10:46:26 AM

Thanks for the interesting link, Joe. I will likely do a separate post on this study once I get a chance to look a is closely.

Posted by: Doug B | May 21, 2018 11:06:26 AM

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