RISK-BASED SENTENCING AND THE PRINCIPLES OF PUNISHMENT.

• Author: Lewis, Christopher

INTRODUCTION 214 I. THE RATIONALE FOR RISK-BASED SENTENCING 220 A. Moral Permissibility and Limiting Retributivism 221 B. Economic Efficiency and Incapacitation Effects 224 II. INCONCLUSIVE ARGUMENTS AGAINST RISK-BASED SENTENCING 225 A. Algorithmic Fairness 226 B. Ordinal Proportionality 228 C. Disparity and Community 233 D. Crime Backlash 235 1. Undermining Perceived Legitimacy 235 2. Deterrence and Relative Elasticity 236 E. Making the Public More Punitive 237 F. Distorting Theories of Punishment 238 III. DISTRIBUTING DE-CARCERATION TO THE DISADVANTAGED 241 A. Uncertainty about Desert 241 B. Skepticism about the Sentencing Guidelines 244 C. The Asymmetry of Under- and Over-Punishment 246 1. Substantive Plausibility Proof. 247 2. Analogical Argument 250 D. Disadvantage and Criminal Responsibility 253 E. Fairly Distributing Reform Efforts 255 IV. BUT WOULDN'T THAT CAUSE MORE CRIME? 256 A. Crime Inside Prison 258 B. Backlash and Replacement Effects 259 C. Refocusing on Public Safety 261 CONCLUSION 262 INTRODUCTION

Over the last decade, prison populations in the United States began to decline for the first time since the early 1970s. (1) Fiscally conservative policymakers and redemption-focused Evangelical advocacy groups joined criminal justice reformers on the traditional liberal left in a growing bipartisan movement to replace the "tough on crime" tactics of the previous four decades with a new "smart on crime" approach. (2)

The key political challenge for this movement is to find ways to reduce the number of people in American jails and prisons without jeopardizing public safety. Elected officials contemplating various methods for reducing prison populations must balance considerations of fairness and efficiency with the kinds of populist appeals to punitive, racially charged, and alarmist narratives about crime that can hurt them at the polls. (3) Reformers, academics, and policymakers have latched onto the idea of doing this by expanding the use of statistical risk assessment in policing, (4) prosecution, (5) pretrial detention, (6) and sentencing. (7)

Risk-based sentencing, in particular, has been central to recent law reform efforts. (8) Proponents see risk-based sentencing as an efficient way to shrink the social and economic footprint of American criminal justice systems while minimizing sacrifices to public safety. (9) Many states already have statutes that require sentencing officials to use risk-assessment tools, (10) and those that do not are "seriously considering" adopting similar statutes. (11)

The Supreme Court held in Jurek v. Texas that even death sentences based on determinations of dangerousness pass constitutional muster, (12) noting that "any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose." (13)

According to its to proponents, risk-based sentencing is justified by the "limiting retributivist" theory developed by Norval Morris and adopted in the Model Penal Code (MPC) sentencing provisions. (14) The MPC states that "no crime-reductive or other utilitarian purpose of sentencing may justify a punishment outside the 'range of severity' proportionate to the gravity of the offense, the harm to the crime victim, and the blameworthiness of the offender." (15) Nonetheless, on this view it is morally permissible to use risk-based sentencing as an efficiency-maximizing allocation mechanism for distributing punishment within the range of deserved sentencing severity. Furthermore, according to risk-based sentencing proponents, that range can be wide enough to permit large sentencing disparities between people convicted of similar offenses. (16)

This article, however, shows that risk-based sentencing cannot be vindicated even if one assumes the core theoretical premises that proponents take to be sufficient for its justification. For the sake of argument, as such, this article grants the following three premises:

1. Limiting retributivism is the best theoretical framework to determine the moral permissibility of risk-based sentencing.

2. Current methods of risk assessment yield reliable information about every offender's individual risk of recidivism.

3. Risk-based sentencing will be used solely to allocate reductions in sentencing severity from current levels, not to increase the amount of time spent in prison for anyone.

   This Article demonstrates why risk-based sentencing is unjust, and potentially inefficient, even if one takes all three of these premises as given. In Part I, this Article outlines the argument in favor of risk-based sentencing under the Limiting Retributivist theory developed by Norval Morris and adopted in the MPC's new provisions on sentencing.

   Part II examines the range of normative arguments against risk-based sentencing in the existing literature and illustrates some of their logical and empirical shortcomings. As it stands, recent criticisms cannot completely undermine the prevailing rationale without further explication and extension. Furthermore, Part II builds on the existing critical literature and shows that risk-based sentencing is ultimately indefensible, even by its proponents' own standard of evaluation.

   Part III dissects the idea that risk-based sentencing is an efficient way to maximize the "incapacitation effects" of incarceration at the lowest possible cost. Criminological measures of incapacitation effects fail to account for replacement effects, crime inside of prisons and jails, and the corrosive and sometimes counterproductive effects of concentrated incarceration in disadvantaged neighborhoods. As such, policymakers do not have a clear picture of the effects of risk-based sentencing on public safety or aggregate social wellbeing more generally.

   Part IV lays out this Article's central normative argument against risk-based sentencing, starting from the same core premises and theoretical framework that its proponents take to justify the practice. The argument proceeds in the following five steps, with the key principles derived at each step in bold font:

   1. First, this Article shows that the Limiting Retributivist framework that supposedly justifies risk-based sentencing is motivated by Uncertainty about Desert: the premise that it is impossible to know the precise level or severity of punishment an offender deserves in any given case.

   2. Second, this article shows that Uncertainty about Desert entails Skepticism About Sentencing Guidelines: that existing guidelines cannot ensure that sentencing severity falls within the morally permissible or "not undeserved" range.

   3. Third, this Article provides an independent defense of Asymmetry: the idea that judges should strongly favor punishing people less than they deserve over punishing them more than they deserve.

   4. Fourth, this Article briefly defends Disadvantage as a Mitigating Factor, according to which social and economic disadvantage should mitigate one's liability to legal punishment for most crime. (17)

   5. Finally, this Article shows that based on these four principles, officials should focus sentence reductions on the least socially and economically advantaged--who also tend to pose the greatest risk of reoffending--rather than those who pose the lowest risk.

   There are five important caveats about the scope of this argument. First, this Article argues against risk-based sentencing as a normative matter rather than on constitutional or doctrinal grounds. (18) Second, the argument against risk-based sentencing does not apply specifically to "algorithmic" or "statistical" risk-assessment methods. Instead, it applies whenever risk is calculated with reference to proxies for socio-economic status regardless of whether the calculation is done by a statistical instrument, clinical psychologist or social worker, or sentencing judge. Third, this Article sets aside questions about the morality and efficiency of using risk assessments based on both gender and age at sentencing. (19) Those questions are addressed elsewhere in the literature. (20) Fourth, this Article avoids the broad spectrum of normative questions one might have about the use of prior criminal convictions in risk-based sentencing. (21) Prior convictions are one of the strongest predictors of future crime. (22) Much of the analysis to come does, in my view, applies to risk assessment based on prior criminal convictions. (23) But showing that society should stop punishing people with prior convictions more severely than first-time offenders, ceteris paribus, requires arguments separate from the ones offered here. (24) Fifth, and finally, there are reasons to be skeptical of the idea that punishment can ever be "deserved," (25) but this article's evaluation of risk-based sentencing does not depend on this skepticism.

   1. THE RATIONALE FOR RlSK-BASED SENTENCING

      From a pure consequentialist perspective--where punishment is warranted if and only if the future benefits of any given sentencing decision outweigh the costs--risk assessment should be given free reign. (26) Under some background circumstances, risk-based sentencing might be more harmful than beneficial. (27) But on such a view, there is no reason to be skeptical of risk assessment in principle.

      Alternatively, according to an orthodox retributive theory of punishment (or at least a caricature of such a view), a sentencing decision is justified if and only if it gives the offender what they deserve based on the seriousness of the offense and how blameworthy the offender is for committing it without regard to the future consequences that might flow from that sentencing decision. (28) Under this theory, risk assessment should play no role in determining the length or severity of criminal sentences except, insofar as the factors that make one more likely to also make one more blameworthy. (29)

      As such--especially if the options under consideration are limited to the orthodox...