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Risk-Needs Assessment: Constitutional and Ethical Challenges

67 Pages Posted: 7 Oct 2014 Last revised: 27 Jan 2015

Melissa Hamilton

University of Surrey School of Law

Date Written: January 26, 2015

Abstract

Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement. The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs. Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised. Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics. The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law. In addition, the text examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role at all in determining punishment. The Article then appraises potential alternatives for risk-needs methodologies if the concerns so raised by critics prove legitimate. Any option comes with significant consequences. Retaining offensive variables incites political and ethical reproaches, while simply excising them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices. Promoting an emphasis on risk at sentencing dilutes the focus of punishment on blameworthiness, while neglecting risk and needs sabotages a core objective of the new penological model of harnessing the ability to identify and divert low risk offenders to appropriate community-based alternatives.

Keywords: risk assessment, evidence-based practices, sentencing, equal protection, due process, prisoners' rights, recidivism, rehabilitation, corrections

JEL Classification: K14, K42

Suggested Citation

Hamilton, Melissa, Risk-Needs Assessment: Constitutional and Ethical Challenges (January 26, 2015). American Criminal Law Review, Forthcoming; U of Houston Law Center No. 2014-W-2. Available at SSRN: https://ssrn.com/abstract=2506397 or http://dx.doi.org/10.2139/ssrn.2506397

Melissa Hamilton (Contact Author)

University of Surrey School of Law ( email )

United Kingdom

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