Judging Risk

51 Pages Posted: 4 Jun 2018 Last revised: 15 Aug 2019

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: July 20, 2018


Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process—from policing, to pre-trial, sentencing, corrections, and parole. As efforts to reduce mass incarceration have led to 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 work has largely neglected how decisionmakers use risk assessment in practice. In this Article, we explore the judging of risk assessment. We study why decisionmakers so often fail to consistently use quantitative risk assessment tools.

We present the results of a novel set of studies of both judicial decisionmaking and attitudes towards risk assessment. We studied Virginia because it was the first state to incorporate risk assessment in sentencing guidelines. Virginia has been hailed as a national model for doing so. In analyzing sentencing data in Virginia, we find that judicial use of risk assessment is highly variable. Second, in the first comprehensive survey of its kind, we find judicial attitudes towards risk assessment in sentencing practice quite divided. Even if, in theory, an instrument can better sort offenders in less need of jail or prison, in practice, decisionmakers may not use it as intended.

Still more fundamentally, in criminal justice, unlike in other areas of the law, one typically does not have detailed regulations concerning the use of risk assessment, specifying 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 decisionmakers, but also how to structure that decisionmaking 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 use of risk information in criminal justice. Unless judges and lawmakers regulate the judging of risk assessment, the risk revolution in criminal justice will not succeed in addressing mass-incarceration.

Suggested Citation

Garrett, Brandon L. and Monahan, John, Judging Risk (July 20, 2018). California Law Review, Forthcoming; 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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