The Use of Risk Assessment in Sentencing

Abstract

A Brief History of Risk Assessment in SentencingOver the years, risk, as the likelihood of future criminal behaviour, has played a role in sentencing in different forms and at different stages in the criminal justice process.A general shift can be observed from a welfare-oriented approach to a neoliberal approach, with a declining role for (clinical) experts and a shift of responsibilities from state authorities to the individual (Garland 2001;Feeley and Simon 1992).However, it would be amiss to paint this development with a broad brush only, as there is substantial variation in practice across jurisdictions.This chapter discusses these variations in current and (recent) past practices of risk-based sentencing and also gives an overview of the main debates around risk assessment.Many of these debates will be examined in more detail in the chapters that follow.The development of risk assessment instruments over time can be aligned with changes in their function in the criminal justice process.The previous century witnessed the popularity and subsequent decline of the rehabilitative ideal, which was followed by a greater prominence of retributive (deserved punishment) and crime control concerns.Today, risk assessment may be said to serve the primary function of efficient offender management, although there is also still attention for rehabilitative, retributive and incapacitative goals. First Generation: Clinical Judgement and Penal WelfarismIn the heyday of the rehabilitative ideal (roughly the 1950s and 1960s, beginning its descent in the 1970s), it was generally believed that the causes of criminality could be 'diagnosed' and 'treated' using an individual approach (Phelps 2011).Consequently, many offenders received indeterminate sentences that were terminated upon the apparent rehabilitation (and thus low risk) of the individual.This put a great deal of sentencing discretion at the back-door with parole boards, as judges would only impose a sentencing range or maximum sentence.These judgements by parole boards about rehabilitation (i.e.future dangerousness) were normally informed by clinical assessments of dangerousness, which were not restricted by rules or guidelines about the use of information to reach decisions.Unstructured clinical risk assessments are considered the first generation of risk instruments and they have been Yang, Y and Raine, A (2009) 'Prefrontal structural and functional brain imaging findings in antisocial, violent, and psychopathic individuals: A meta-analysis' Psychiatry Research:

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