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Giving Compass' Take:
• Jennifer Skeem, Nicholas Scurich, and John Monahan explain how risk assessments can increase sentencing disparities and negatively impact judges’ fairness in sentencing.
• How can funders work to increase fairness in the justice system?
• Learn more about the problems of risk assessment tools.
The increasing use of risk assessment algorithms in the criminal justice system has generated enormous controversy. Advocates emphasize that algorithms are more transparent, consistent, and accurate in predicting re-offending than judges’ unaided intuition, while skeptics worry that algorithms will increase racial and socioeconomic disparities in incarceration. Ultimately, however, judges make decisions—not algorithms. In the present study, real judges (n=340) with criminal sentencing experience participated in a controlled experiment to test whether the provision of risk assessment information interacts with a defendant’s socioeconomic class to influence sentencing decisions. Results revealed that risk assessment information reduced the likelihood of incarceration for relatively affluent defendants, but the same risk assessment information increased the likelihood of incarceration for relatively poor defendants. This finding held after controlling for the sex, race, political orientation, and jurisdiction of the judge. It appears that under some circumstances, risk assessment information can increase sentencing disparities.
Judges routinely make momentous decisions in a person’s life that include consideration of the likelihood that the person will re-offend—and must make their own seat-of-the-pants judgments, without algorithms. At the pretrial stage, each of the 30,000 daily arrests in the U.S. requires a judge to decide whether to release a defendant until their court date or keep them in jail to prevent them from absconding or reoffending before their case disposition. At the sentencing stage, each conviction requires a judge to determine an appropriate sentence. Sentencing traditionally focuses on backward-looking concerns about the defendant’s blameworthiness for a past crime, but the highly influential Model Penal Code also provides a limited role for forward-looking concerns about preventing future crimes. In a recent survey, 8 out of 10 judges believed that both blameworthiness and risk of re-offending should be considered at sentencing.