Risk-needs assessment: constitutional and ethical challenges.

• Author: Hamilton, Melissa
• Position: Introduction through III. Critical Observations of Risk-Needs Assessments A. Constitutional Considerations 1. Equal Protection c. Strict Scrutiny: Race, Alienage, and Fundamental Rights, p. 231-261

TABLE OF CONTENTS I. INTRODUCTION II. RISK-NEEDS INSTRUMENTS A. Utility of Risk-Needs Data B. Evolution of Risk-Needs Tools III. CRITICAL OBSERVATIONS OF RISK-NEEDS ASSESSMENTS A. Constitutional Considerations 1. Equal Protection a. Rational Basis Review b. Heightened Review: Gender c. Strict Scrutiny: Race, Alienage, and Fundamental Rights d. Proxies 2. Prisoners' Rights a. Fundamental Rights b. Due Process 3. Sentencing B. Ethical and Normative Concerns IV. THE FUTURE OF SOCIODEMOGRAPHIC FACTORS V. CONCLUSIONS APPENDIX A: POPULAR RISK ASSESSMENT TOOLS I. INTRODUCTION

Evidence-based practices are in vogue as the post-modern savior within criminal justice. Not long ago, a legal commentator observed that risk analysis dominated the law in the areas of environmental, health, and safety issues but had not yet become established in criminal law and procedure. (1) Whatever the validity of the statement at the time, across jurisdictions the criminal justice system has embraced the evidence-based practices movement. (2) The United States' economic ills and its record-breaking rate of incarceration have convinced policymakers to adopt new strategies to constrain a dependence on imprisonment, encourage alternative rehabilitative programming, reduce recidivism risk, and improve public safety. (3) The evidence-oriented model utilizes the best data available from the empirical sciences to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations accordingly.

Well-informed decisions are critical to achieving a proper balance among such interests as protecting the public and efficiently expending government resources, while at the same time respecting individuals' liberty interests. (4) The ideology of risk is now considered at the heart of such a balancing act in that information about a defendant's risk of recidivism informs an expanding number and variety of criminal justice decisions. (5) Interested observers have referred to risk-based philosophies as promoting a "preventive, future-oriented logic of risk," (6) representing "risk factorology," (7) and embracing a stance toward risk aversion. (8)

The assessment of risk cannot constitute a simplistic enterprise as human behavior is often capricious. Advocates of the new risk penology properly continue to search for improvements in risk assessment practices by incorporating scientific advances from interdisciplinary research fields. (9) Empirical studies influenced a more recent revolution of the risk penology toward the risk-needs model, which adds to the prediction of future risk a framework for engaging principles of effective correctional interventions addressing criminogenic needs. (10) To be sure, academics across disciplines have long been studying criminal offending. The idea that criminal justice should not be simply focused on warehousing offenders was represented with a zeitgeist-like emphasis on rehabilitation until the 1970s. (11) However, since that time the American criminal justice system dramatically deviated away from rehabilitative goals toward retribution, which helps account for the high rate of incarceration ever since. Nonetheless, a current of disappointment with the high financial and social costs of over-incarceration have convinced officials across the country to explore new ideologies by considering alternatives to incarceration and the adoption of practices that work to reduce recidivism rates by addressing criminogenic needs. In sum, this so-called "neorehabilitation" model--meaning the rehabilitation of rehabilitation--seeks to improve upon past practices by incorporating evidence-based practices. (12) Despite good intentions, controversies emerged.

This Article proceeds as follows. Section II surveys the variety of criminal justice decisions currently informed by risk-needs assessment and introduces several of the most popular tools. Section III reviews constitutional and moral objections to risk-needs tools, such as those recently raised by Attorney General Eric Holder, targeting a host of sensitive factors contained therein, such as demographic and other immutable characteristics. The constitutional analysis engages equal protection, prisoners' rights, due process, and sentencing law. The text also examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role in determining punishment. Neorehabilitation is not necessarily always the golden standard. Across criminal justice decisions, punishment theories variously involve sometimes conflicting perspectives depending on whether officials are reliant upon retribution, deterrence, incapacitation, and/or rehabilitation as the orienting value system(s). The utility of risk-needs considerations likewise will vary by the prevailing punishment philosophy. Section IV appraises potential alternatives for risk-needs methodologies if the concerns so raised prove legitimate. Any option comes with significant consequences. Retaining offensive variables incites political and ethical reproach, while simply removing them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices. With respect to sentencing, promoting an emphasis on risk diminishes the focus of punishment on blameworthiness, while neglecting risk and needs serves to sabotage a core objective of the contemporary neorehabilitation model of harnessing the ability to identify and divert low risk offenders to community-based alternatives offering culturally-sensitive rehabilitative services. Section V concludes.

2. RISK-NEEDS INSTRUMENTS

   The employment of automated tools that capitalize on the ideology of risk is enjoying its heyday in criminal justice. Numerous scholars and scientists have hastened to develop and cross-validate a variety of tools. Risk-needs assessment has become a competitive industry with governmental and for-profit businesses issuing a host of instruments that are either generic in nature or targeted to specific groups (e.g., youth, mentally disordered) or offense types (e.g., sex offenders, violent aggressors). (13) "Recidivism prediction is ubiquitous. Everybody's doing it. There is an enormous academic and professional literature. Unprecedented private sector involvement has occurred in designing and marketing instruments and providing services to government." (14) Some of the tools are proprietary and require payment for their use, while others are in the public domain. (15) Officials in the criminal justice system have become convinced that predicting risk and addressing criminogenic needs are crucial to the core goals in criminal justice of protecting the public, securing correctional institutions, reducing recidivism, providing rehabilitative programming, and at the same time saving resources.

   1. Utility of Risk-Needs Data

      A justification for the prevalence of risk-based datasets and models is the growth in the number and type of decisions for which they are perceived to be useful. Initially, evidence-based practices were adopted to inform post-conviction decisions and management strategies, such as parole determinations, (16) supervised release conditions, provision of reentry services, (17) decisions to revoke supervision, and judgments concerning probation and parole sanctions. (18) Risk analysis is helpful in crafting release conditions as studies indicate overly burdensome restrictions can harm many otherwise low risk offenders. (19) The adoption of the evidence-based model in general, and the implementation of risk-needs tools more specifically, has recently been promoted in pretrial contexts, (20) such as pretrial diversion, (21) deferred adjudication, bail, and plea negotiations, (22) and juvenile transfers to adult court. (23) The concern now is not just an immediate interest in reserving pretrial detention for those likely to fail if released into the community, but also a longer term recognition that pretrial incarceration positively correlates with post-conviction failures. (24) Risk-needs assessments are immensely popular for a variety of similar decisions made in specialty courts, such as drug courts (25) and reentry courts. (26)

      Empirically-based evaluations of future recidivism risk and criminogenic needs are also helpful in other management circumstances, such as designation as a sexually violent predator for purposes of civil commitment, (27) sex offender registration classification, (28) inmate security classification levels, institutional placement, (29) and therapy options in treatment. (30) Perhaps the most recent legal arena to turn to risk-needs is sentencing. The idea being to guide sentencers in distinguishing high-risk defendants, for whom preventive incapacitation--perhaps even the death penalty--may be suitable, from low-risk offenders who may fittingly be diverted from prison. (31) Risk-needs data also are informing sentencing decisions in the consideration of suitable alternatives to prison and tailoring conditions of community confinement to individual and cultural circumstances. (32)

      Experts maintain there exists a "central eight" risk-needs categories that research consistently show are most associated with recidivism. (33) Comprising the central eight, the "big four" are antisocial attitudes, antisocial associates, antisocial personalities, and criminal history, while the "moderate four" include substance abuse, family characteristics, education and employment, and lack of prosocial leisure or recreation (though it is recognized that the moderate four largely influence recidivism via the big four). (34) Thus, risk-needs instruments in the field of criminal offending often embed at least a few factors from the central eight categories. (35)

      The utility of using risk-needs instruments has attracted energetic support from many reputable policy centers, namely the Justice Center of the Council of State Governments...