There are few law professors as interesting as Doug Berman. From his Sentencing Law & Policy Blog, “ Iowa Supreme Court dodges due process challenges to use of risk-assessment tools at sentencing:”
A helpful reader made sure I did not miss a trio of rulings handed down late last week by the Iowa Supreme Court which all raised issues concerning the permissibility of courts using risk-assessment tools at sentencing. The rulings came in Iowa v. Gordon, Iowa v. Guise and Iowa v. Buesing, and in each instance the court decided that a constitutional challenges to the use of Iowa Risk Revised risk assessment tool (IRR) at sentencing was not properly raised and preserved at sentencing. The Gordon case addresses this point most fully, and here is how the other cases describe the Gordon ruling:
Today, we filed an opinion in State v. Gordon, ____ N.W.2d ____ (Iowa 2018). In Gordon, we held a defendant could not raise this due process argument for the first time on appeal when the defendant did not bring the issue to the district court at the time of sentencing. Id. at ___. Furthermore, we held we could not address this due process issue under the rubric of ineffective assistance of counsel because the record is insufficient to reach this claim. Id.
Though the Gordon case has the fullest discussion of the merits in this trio of decisions, the Guise case is the best read because of the Justice Appel’s extended opinion “concurring specially.” This concurrence talks through various concerns about the use of risk-assessment instruments at sentencing (with lots of cites to lots of academic scholarship), and here are a few notable passages:
Guise’s argument that due process requires accurate information about risk assessments beyond a mere conclusion, as demonstrated by Malenchik and Loomis, is certainly not frivolous. Certainly the shiny legal penny of a new risk assessment tool should be carefully scrutinized by the courts…. The relentless and potentially corrosive drive for efficiency and certainty in a resource-scarce public sector should not drive courts to use risk assessments in an unjustified “off label” manner or in a fashion that otherwise lacks meaningful empirical support to drive sentencing.
Even if the emerging risk assessment tools are found to have a place in sentencing as a “relevant” factor, our law does not allow mere conclusions to be mounted on spikes and paraded around our courtrooms without statistical context….
We do not know whether the IRR was normed with an appropriate Iowa population. We do not know whether the tool has been renormed and monitored. We do not know anything, really, about the database, assuming there is a database, behind the IRR.
I am also concerned about process issues lurking behind this case. Ordinarily, the PSI report is made available to the defendant only a few days before sentencing…. But a few days’ notice is not enough time for a defendant to mount a serious challenge to the underlying reliability of the risk assessment evidence as being so unreliable as to be hocus pocus. A full-court press on the question of reliability of the risk assessment would likely require the hiring of a highly qualified expert. Even if the defendant does not wish to mount a full-blown attack on the statistical model and instead wishes to make a more limited point — say, for instance, the disproportionate impact of use of housing, employment, and level of educational attainment of people of color — the defense will not be able to develop the attack in a few days, particularly when the defendant is indigent and will require court approval prior to the hiring of an expert to challenge the statistical information….
In conclusion, I want to make clear that I do not categorically reject any use of risk assessment tools in the sentencing process. I recognize that the PEW Center on the States, the National Institute of Corrections, the National Center for State Courts, and the American Law Institute have all expressed interest in evidence-based sentencing. See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1343, 1394 (2011). I also recognize that sentencing based solely on “intuition” or “gut” runs the risk of allowing implied bias a free reign and can be lawless in nature. See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007) (urging the justice system to take steps to limit the impact of overreliance on intuition). Further, the “intuition” or “gut” of a judge who was a former prosecutor may well differ from the “intuition” or “gut” of a public defender. Undisciplined intuitive sentencing runs the risk of telling us more about the judge than the person being sentenced.
A fully-developed record may well show that risk and needs assessment tools that assemble variables in a statistically valid way may be of some assistance as a check on unregulated sentencing discretion and may promote deeper thinking by discretionary decision-makers into the sentencing process. In short, it is possible that when a full record is developed, properly designed and utilized risk assessment tools may enhance and inform the exercise of judicial discretion. In addition to the binary question of whether a risk assessment may or may not be used in sentencing, however, more nuanced additional questions must be asked regarding how any such tool may be used. In light of the procedural posture of this case and the companion cases, these questions must await further legal developments.