GUEST EDITOR'S OBSERVATIONS The Risk Assessment Era: An Overdue Debate

It is an understatement to refer to risk assessment as a criminal justice trend. Rather, we are already in the risk assessment era. Quantitative tools for the prediction of crime risk have quickly come to pervade the administration of criminal justice in the United States. In sentencing, their use is largely new and remains fast-expanding: today at least twenty states use these tools in some or all sentencing decisions, and many more plus the federal government are considering reforms that would introduce them. The modem revision of the Model Penal Code, currently in draft form, endorses their use in sentencing. 1 Risk assessment instruments are also commonly used to guide policing, bail decisions, diversion programs, prison assignment and programming, probation and parole supervision, discretionary parole decisions, and reentry programs. And yet these instruments have largely escaped both legal and public scrutiny. We have not had a national conversation about their use and the risk factors that they include. This Issue reflects the view that that conversation is overdue. Risk assessment is meant to serve an important objective: protecting the public from crime while allowing better-tailored use of criminal justice resources (including incar­ ceration). On the other hand, almost all the risk assessment instruments now in use base a defendant's risk assessment score in part on demographic and socioeconomic factors, not just on past and present criminal conduct. Whether it is appropriate to base defendants' risk assessment on such factors is a choice that involves serious value conflicts and raises serious constitutional questions. This past summer, Attorney General Holder weighed in, raising the issue's public profile. While endorsing the broader practice of using data to inform criminal justice policy and practice, the Attorney General expressed serious concern about the use of risk assessment instruments in sentencing. In a speech to the National Association of Criminal Defense Lawyers, he stated: Although these measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice. By basing sen­ tencing decisions on static factors and immutable characteristics-like the defendant's education level, socioeconomic background, or neighborhood-they may exacerbate unwarranted and unjust disparities ... Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place. 2