Constructing Recidivism Risk

By Eaglin, Jessica M. | Emory Law Journal, January 1, 2017 | Go to article overview

Constructing Recidivism Risk


Eaglin, Jessica M., Emory Law Journal


INTRODUCTION

Predictive technologies increasingly appear at every stage of the criminal justice process.1 From predictive policing to pretrial bail to sentencing, public and private entities outside the justice system now construct policy-laden evidence of recidivism risk to facilitate the administration of justice.2 Using the actuarial risk tools for sentencing as illustration, this Article examines the normative judgments entailed in the development of predictive recidivism risk information for the administration of justice. It proposes measures to infuse public input into tool construction.

Criminal courts increasingly engage in "risk-based sentencing" as states consider and adopt more data-driven criminal justice reforms.3 Risk-based sentencing occurs when a court relies on actuarial risk assessment tools that predict a defendant's likelihood of engaging in criminal behavior to inform and guide its discretion in sentencing.4 These actuarial-meaning statistically derived-tools assess individuals based on a series of factors to produce a score that ranks defendants according to likelihood of engaging in specified behavior in the future.5 Judges may consider the information provided by recidivism risk tools directly in the sentencing process, or probation officers may confront the tools and collapse the information into a presentence recommendation to the court.6 This information may influence any number of sentencing determinations, including whether to impose probation versus incarceration, the length of incarceration, and the types of conditions a judge may impose on probation.7

A growing body of scholarship considers the entry of risk-based sentencing practices in the states. Scholars debate the use of actuarial risk information at sentencing for very different reasons. Advocates contend that, because risk tools more objectively and consistently predict the likelihood of recidivism than the inevitable human guesswork of judges,8 using the tools at sentencing will improve accuracy.9 More accuracy, they suggest, will improve sentencing practices.10 Critics oppose risk-based sentencing as a matter of fairness. They contend that, because risk tools rely on factors like gender or proxies for race, using the tools at sentencing is impermissible as a matter of constitutionality or bad policy.11 This scholarship influences larger debates about whether and how to incorporate predictive risk information into the administration of justice.12 Yet none of these scholars consider how to regulate the production of risk information. Instead, they debate whether to eliminate its use entirely.

Outside the sentencing context, a growing body of scholarship examines the rise of predictive analytics used both within the criminal justice system13 and outside of it.14 These scholars largely call for accountability measures that ensure predictions are consistent with normative concepts of fairness.15 Yet few of these scholars engage with the underlying normative debates implicit in the construction of the tools. Few urge elimination of the tools all together.16

This Article enters at the intersection of these two bodies of scholarship. It exposes how external incentives intersect with law and policy in the construction of risk tools for sentencing. How tools are constructed has great import to the "truths" the resulting outcomes purport to assert. Using actuarial risk tools used for sentencing as illustration, this Article does two things. First, it systematically exposes the normative judgments embedded in actuarial risk assessment tools' construction. Second, it calls for legal accountability to ensure risk-tool construction in service of the law.17 Actuarial risk assessment tools obscure difficult normative choices about the administration of criminal justice. This Article proposes a framework to pierce the opacity of these tools with various interventions to facilitate public discourse and input throughout the construction process. …

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