Criminal Procedure | Law | Law and Economics | Law and Race | Law Enforcement and Corrections
Columbia Center for Contemporary Critical Thought
Actuarial risk assessment in the implementation and administration of criminal sentencing has a long history in this country – a long and fraught history. Today, many progressive advocates promote the use of actuarial risk assessment instruments as part of a strategy to reduce the problem of "mass incarceration." Former Attorney General Eric Holder has called on the U.S. Sentencing Commission to hold hearings to further consider the matter of risk assessment and prediction tools in sentencing and parole.
The objective – to reduce our massive over-incarceration in this country – is critical and noble. But risk assessment tools are simply the wrong way forward. I argue here that we should resist the political temptation to embrace the progressive argument for risk-prediction instruments because their use will unquestionably aggravate the already intolerable racial imbalance in our prison populations.
The fact is, risk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race. The combination of these two trends means that using risk-assessment tools is going to significantly exacerbate the unacceptable racial disparities in our criminal justice system. More generally, the use of actuarial tools is likely to produce a "ratchet effect" on all members of the higher-risk categories – whether along racial or other lines – with highly detrimental consequences on their employment, educational, familial, and social outcomes. For these simple reasons, we should avoid embracing actuarial risk prediction and instead turn to race-neutral solutions to mass incarceration.
There are, to be sure, political and strategic advantages to using "technological" instruments, such as actuarial tools, to justify prison releases. Risk assessment tools protect political actors and serve to de-responsibilize decision makers. Given that we still today "govern through crime," these strategic considerations are undoubtedly important. But I think that this advantage is outweighed by the cost to racial justice. In the end, we need to find better solutions to reduce mass incarceration. Before making the argument, though, let me start here with a few cautionary tales about progressive arguments for prediction.
Bernard E. Harcourt,
Risk as a Proxy for Race: The Dangers of Risk Assessment,
Fed. Sent'g Rep.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2564