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

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