Erin Collins (University of Richmond School of Law) has posted Punishing Risk (Georgetown Law Journal, Forthcoming) on SSRN.

Here is the abstract:

Actuarial recidivism risk assessments – or statistical predictions of the likelihood of future criminal behavior – drive a number of core criminal justice decisions, including where to police, who to release on bail, and how to manage correctional institutions. Recently, this predictive approach to criminal justice has entered a new arena: sentencing. Actuarial sentencing has quickly gained a number of prominent supporters and is being implemented across the country. This enthusiasm is understandable. Its proponents promise that actuarial data will refine sentencing decisions, increase rehabilitation, and reduce reliance on incarceration. 

And yet, in the rush to embrace actuarial sentencing, scholars and policy makers have overlooked a crucial point: actuarial risk assessment tools are not intended for use at sentencing.

In fact, their creators explicitly warn that these tools were not designed to aid decisions about the length of a sentence or whether to incarcerate someone. And yet, that is precisely how those who endorse actuarial sentencing – including the American Law Institute in the recently revised Model Penal Code for Sentencing – suggest they should be used. 

Actuarial sentencing is, in short, an unintended, “off-label” application of actuarial risk information. This Article re-examines the promises of actuarial sentencing in light of this observation and argues that it may cause a number of equally unintended and detrimental consequences. Specifically, it contends that this practice distorts, rather than refines, sentencing decisions. Moreover, it may increase reliance on incarceration – and for reasons that undermine the fairness and integrity of the criminal justice system.