Valid or Voodoo: A Qualitative Study of Attorney Attitudes Towards Risk Assessment in Sentencing and Plea Bargaining

26 Pages Posted: 12 Mar 2020

See all articles by Anne Metz

Anne Metz

University of Lynchburg

John Monahan

University of Virginia School of Law

Luke Siebert

Masters in Public Health Candidate, University of Virginia School of Medicine; Research Assistant, University of Virginia School of Law

Brandon L. Garrett

Duke University School of Law

Date Written: March 10, 2020

Abstract

Prior research largely has explored judicial attitudes toward risk assessment in sentencing. Little is known about how other court actors, specifically, prosecutors and defense attorneys, make use of risk information at sentencing hearings and during plea negotiations. Here, we report a qualitative study on the use of risk assessment by prosecutors and defense attorneys in Virginia. A prior quantitative study (n=70) pointed to a statistically significant difference in how prosecutors and defense attorneys regard the role of recidivism risk in sentencing hearings and in plea bargaining. Based on the results of the quantitative study, we collected follow-up qualitative data via interview (n=30) to explain this unexpected difference. Three themes emerged from the interviews: Who is the lawyer’s identified client? (With prosecutors choosing the general public and defense attorneys choosing the particular defendant); Does past behavior strongly predict future behavior? (With prosecutors being more likely than defense attorneys to believe it does; and Is the Nonviolent Risk Assessment a statistically valid tool for assessing recidivism risk? (With prosecutors and defense attorneys equally likely to believe that the tool was no more valid than their own intuitive professional experience. Virginia is regarded as one of the leading innovators in the use of risk assessment. Thus, as more states and the federal government adopt a risk-based approach to sentencing, studies on Virginia can provide useful guidance on the implementation process.

Keywords: risk assessment, sentencing, plea bargaining, prosecutors, defense attorneys

Suggested Citation

Metz, Anne and Monahan, John and Siebert, Luke and Garrett, Brandon L., Valid or Voodoo: A Qualitative Study of Attorney Attitudes Towards Risk Assessment in Sentencing and Plea Bargaining (March 10, 2020). Virginia Public Law and Legal Theory Research Paper No. 2020-25; Duke Law School Public Law & Legal Theory Series No. 2020-15. Available at SSRN: https://ssrn.com/abstract=3552018

Anne Metz (Contact Author)

University of Lynchburg ( email )

Lynchburg, VA 24501
United States

John Monahan

University of Virginia School of Law ( email )

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

Luke Siebert

Masters in Public Health Candidate, University of Virginia School of Medicine; Research Assistant, University of Virginia School of Law

United States

Brandon L. Garrett

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/

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