The Perils of 'Old' and 'New' in Sentencing Reform

Abstract

The introduction of actuarial risk assessment tools into the sentencing process is a controversial, but popular trend in the states. While tools' proliferation is debated from numerous angles, scholarship tends to emphasize why this reform is new or old, and focus on whether and how this trend may improve or undermine sentencing law and policy. This Essay suggests that the institutionalization of actuarial risk assessments into the sentencing process in response to social and political critiques of criminal administration is both a new and old idea. It situates the proliferation of actuarial risk assessments in the context of technical guidelines created to structure and regulate judicial sentencing discretion in the 1980s and beyond. It then examines debates about two conceptual issues - selective incapacitation and equality - to highlight that technical sentencing reforms raise recurring questions at sentencing, even as social perspectives on resolving those questions are shifting. Rather than using the "old" nature of these issues as evidence that actuarial risk assessments should proliferate, however, this Essay urges critical reflection on the turn toward the technical in the present day, in the face of mass incarceration. It urges scholars to dispense of the "old" and "new" concept when reflecting on whether and why actuarial risk assessments are proliferating in the states. It also encourages scholars to draw on the expansive methodological approaches applied to study of sentencing guidelines when considering this reform going forward.

Keywords: sentencing, technology, actuarial risk assessment, equality, criminal justice reform