Academic journal article The Journal of Law in Society

Considerations for a Constitutional and Ethical Implementation of Risk Assessment in Michigan

Academic journal article The Journal of Law in Society

Considerations for a Constitutional and Ethical Implementation of Risk Assessment in Michigan

Article excerpt


In March 2017, Governor Rick Snyder signed into law a package of bills designed to lower the recidivism rate of criminal offenders in Michigan. (2) One of these bills, Senate Bill 0008 (2017), was passed as 2017 Public Act No. 5. This Act provided that within four years, the Department of Corrections and local corrections agencies must adopt policies, rules, and regulations that would bring supervision of all offenders in line with evidence-based practices in order to reduce recidivism rates of supervised individuals. (3)

Evidence-based practices rely on the assessment of risk and need factors in order to determine which individuals should be targeted with rehabilitative programs and which programs ought to be employed for said individuals. Because Michigan has not implemented any specific risk assessment tool to date, this note will identify constitutional, ethical, and theoretical issues with risk assessments and make recommendations for the implementation of 2017 Public Act No. 5. This note will explore the equal protection objections that could arise from the implementation of such policies in Michigan in order to assess their legality. After determining the constitutional legality of the use of these risk factors, the note will assess them from a normative perspective, identifying ethical pitfalls that these risk assessments face, and assessing the relative danger of these ethical concerns towards several different varieties of risk assessment tools. Finally, the note will explore how risk assessments fit within the context of theoretical justifications for punishment.

The note will highlight the constitutional and ethical concerns that a reliance on static risk factors creates. The use of static risk factors has the potential to classify based on more insidious factors via proxy. (4) Race, ethnicity, and alienage can all be indirectly assessed based on static risk factors, leading to potential violations of equal protection law, while the use of dynamic risk factors can mitigate the risk. (5) Later generation risk assessment tools, with their use of dynamic risk factors and concern over offender need prove more favorable from a constitutional and ethical standpoint. Regardless of the risk factors, making corrections decisions based on risk factors deviates from the recidivist theory of punishment, requiring legislatures and agencies to assess their desired use of risk assessments in the context of their own justifications for punishment.


The U.S. continues to incarcerate its population at a higher rate than any other developed nation, at a rate of 655 prisoners per 100,000 people. (6) Amongst many factors, high rates of recidivism help maintain the prison overpopulation problem. As a result, corrections agencies have continued to develop in-prison programming designed to reduce recidivism by enhancing offenders' support structures post-confinement and improving offenders' post-confinement outlooks. Many such programs focus on post-incarceration employment. (7) The assumption is that the structure of employment and the financial stability it provides will reduce the likelihood that offenders commit crimes after their release. These types of programs are developed at the state and federal level in a variety of different forms. In-prison education, skills training, and counseling are all common methods of preparing offenders for post-confinement employment. Meta-analysis has shown that correctional education can have a significant impact on three-year re-incarceration and re-arrest rates. (8) Similar analysis has also demonstrated that completion of career and educational training programs, otherwise known as vocational programs, also had the effect of increasing post-confinement employment and reducing re-arrest rates. (9) Along this line, the Michigan Department of Corrections launched its 'Trading Places' initiative in 2017 in order to provide prisoners with skill-based training to prepare them for trade jobs after their release. …

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