Judicial Risk Assessment: The Impact of Risk, Stakes, and Jurisdiction

• Author: Michael S. Vigorita
• DOI: 10.1177/0887403403253722
• Published date: 01 September 2003
• Date: 01 September 2003
• Subject Matter: Journal Article

10.1177/0887403403253722ARTICLECRIMINAL JUSTICE POLICY REVIEW / September 2003Vigorita / JUDICIAL RISK ASSESSMENT

Judicial Risk Assessment:

The Impact of Risk,

Stakes, and Jurisdiction

Michael S. Vigorita

Rowan University

Judicial assessment of offender risk has a direct impact on the sentencing decision.

Yet because judges rarely explicitly record their judgments of risk, little is known

aboutthefactorsthataffectthese decisions. The current research,however,in analyz-

ing1,073explicitlyrecorded risk assessments, isabletoexaminethe effects of various

offender, offense, and contextual variables on the risk decision. Specifically, the

researchanalyzes the judicial stipulation that there is a “risk that defendant will com-

mit another crime.” In keeping with prior research on judicial decision making, the

analysis demonstrates that there arerelatively few offender-specific variables affect-

ing judicial perceptions of risk. The results are framed within the context of a risk/

stakes framework, suggesting some factors are used as predictors of reoffending,

whereasother factors are used as predictors of the seriousness of the futureoffending.

Thedataalso suggest strong differencesacross urban, suburban,andruralcounties.

Keywords: risk; judicial decision making; sentencing

Risk assessment plays an important role at most decision points within the

criminal justice system. As decision makers attempt to balance the civil lib-

erties of offenders and the safety of the public, implicit or explicit assess-

ments of offender dangerousness strongly influence decisions made con-

cerning offenders. From bail to probation to parole to sex offender

classification, risk assessment plays a central role. Arguably, the decision

that is most directly affected by risk considerations is the sentencing deci-

sion. However,because judges rarely record their judgments of risk, little is

known about what factors affect their risk assessments. This is especially

worrisome given the fact that judicial risk assessment significantly affects

the incarceration decision. Quite simply, when an offender is perceived to

be at risk for committing future offenses, he or she has an increased

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Criminal Justice Policy Review, Volume 14, Number 3, September 2003 361-376

DOI: 10.1177/0887403403253722

© 2003 Sage Publications

probability of incarceration (D. M. Gottfredson, Gottfredson, & Conly,

1989; Vigorita, 2001). The role of risk is especially salient at midrange

cases in which incarceration and probation are both viable options, and in

which judicial discretion is greatest (D. M. Gottfredson & Gottfredson,

1988). In these instances, the judgment regarding the future risk of the

offender may well be the tipping point of the incarceration decision.

The importance of studying judicial perceptions of risk lies in its impor-

tance,either implied or explicit, in most sentencing rationalesand its impact

on the sentencing decision.1Although the role of risk is more pronounced

under a selective incapacitation rationale compared to desert philosophy,

judges rarely sentence exclusively under one justification (see D. M.

Gottfredson & Gottfredson, 1988; Hogarth, 1971). What this means is that

risk assessment has the potential to affect most cases. With that in mind,

determining the factors that affect judicial risk assessment becomes crucial

to gaining a fuller understanding of the sentencing decision. Tothat end, the

current research examines explicitly recorded judicial risk assessments,

allowing for analysis of various offender, offense, and jurisdictional vari-

ables. Specifically, the research examines the factors that result in a judge

indicating that there is a “risk that defendant will commit another crime.”

This research differs from prior research in that it does not examine the sen-

tencing decision per se, but rather it focuses on the antecedents of that deci-

sion—the factors that give rise to judicial perceptions that will ultimately

affect the sentencing decision.

BACKGROUND

Risk

Risk is typically conceptualized as the probability that an event will

occur (see D. M. Gottfredson, 1989; Short, 1992, p. 5). In addition to this

probability dimension of risk, there exists a separate dimension that repre-

sents the seriousness of a future event. This second dimension is commonly

referredto as “stakes” (D. M. Gottfredson et al., 1989)or “hazard” (Hood &

Jones,1996); this concept represents not the probabilityofa future eventbut

rather the ramifications of that event. Risk (i.e., probability) and stakes act

independently, and both significantly affect the incarceration decision (D.

M. Gottfredson et al., 1989). A person may be considered to represent a

high-risk/low-stakes case, whereas another may be seen as low-risk/high-

stakes. As an example, a persistent shoplifter may be a high risk for

362 CRIMINAL JUSTICE POLICY REVIEW / September 2003