Judging Risk

55 Pages Posted: 4 Jun 2018 Last revised: 4 May 2020

See all articles by Brandon L. Garrett

Brandon L. Garrett

Duke University School of Law

John Monahan

University of Virginia School of Law

Date Written: May 3, 2020


Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process—from policing to pretrial detention, sentencing, corrections, and parole. As efforts to reduce mass incarceration have led to the adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid, and whether they might reinforce rather than reduce bias in the criminal justice system. Such questions, however , have largely neglected how decision-makers use risk assessment in practice. In this Article, we explore the judging of risk assessment and why decision- makers so often fail to consistently use quantitative risk assessment tools.

We present the results of a novel set of studies of both judicial decision-making and attitudes towards risk assessment. In our first study, we find that even in Virginia, whose risk assessment instrument has been hailed as a national model for the use of risk assessment, sentencing data indicates that judicial use of risk assessment is highly variable. In our second study, the first comprehensive survey of its kind, we also find quite divided judicial attitudes towards risk assessment in sentencing practice. Even if, in theory, an instrument can better sort offenders in less need of jail or prison, in practice, decision-makers may not use it as intended.

Still more fundamentally, in criminal justice, unlike in other areas of the law, one does not have detailed regulations concerning the use of risk assessment that specify the content of assessment criteria, the peer review process, and standards for judicial review. We make recommendations for how to better convey risk assessment information to judges and other decision-makers, and how to structure that decision-making based on common assumptions and goals. We argue that judges and lawmakers must revisit the use of risk assessment in practice. We conclude by setting out a roadmap for the use of risk information in criminal justice. Unless judges and lawmakers regulate the judging of risk assessment, the risk-assessment revolution in criminal justice will not succeed in addressing mass incarceration.

Suggested Citation

Garrett, Brandon L. and Monahan, John, Judging Risk (May 3, 2020). 108 California Law Review 439 (2020), Virginia Public Law and Legal Theory Research Paper No. 2018-44, Available at SSRN: https://ssrn.com/abstract=3190403 or http://dx.doi.org/10.2139/ssrn.3190403

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)

HOME PAGE: http://www.brandonlgarrett.com/

John Monahan

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3632 (Phone)

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