Much recent work in academic literature and policy discussions suggests that the proliferation of actuarial--meaning statistical--assessments of a defendant's recidivism risk in state sentencing structures is problematic. Yet scholars and policymakers focus on changes in technology over time while ignoring the effects of these tools on society. This Article shifts the focus away from technology to society in order to reframe debates. It asserts that sentencing technologies subtly change key social concepts that shape punishment and society. These same conceptual transformations preserve problematic features of the sociohistorical phenomenon of mass incarceration. By connecting technological interventions and conceptual transformations, this Article exposes an obscured threat posed by the proliferation of risk tools as sentencing reform. As sentencing technologies transform sentencing outcomes, the tools also alter society's language and concerns about punishment. Thus, actuarial risk tools as technological sentencing reform not only excise society's deeper issues of race, class, and power from debates. The tools also strip society of a language to resist the status quo by changing notions of justice along the way.
TABLE OF CONTENTS INTRODUCTION I. THE RISE OF ACTUARIAL RISK TOOLS TO ADDRESS THE PRESSURES OF MASS INCARCERATION A. Actuarial Risk Tools as Sentencing Reform B. The Technological Advancement Narrative C. The Narrative's Shortcoming II. DESTABILIZING THE STANDARD NARRATIVE: FROM PAROLE GUIDELINES TO ACTUARIAL RISK TOOLS A. The Decline of Human-Driven Punishment B. Partially Automated Sentencing Technologies 1. Parole Guidelines 2. Sentencing Guidelines C. Actuarial Tools Revisited III. ILLUMINATING THE COUNTERNARRATIVE: MUTATING SOCIAL CONCEPTS AROUND TECHNOLOGIES A. "Rehabilitation " and the Theoretical Obfuscation of Incapacitation B. Uniformity, Structural Racism, and Technical Formalism C. From Dangerousness to Recidivism Risk IV. REFRAMING THE RISE OF RISK TOOLS AT SENTENCING A. The Politics of Narrative B. Combatting the Standard Narrative, Expanding Debates CONCLUSION INTRODUCTION
Actuarial risk tools are statistical assessments designed to predict a defendant's likelihood of engaging in recidivism in the future. The tools are controversial, and much ink has been spilled on their use at sentencing. This Article challenges a common justification for tool use advanced by proponents: that actuarial risk assessments are nothing new to sentencing, historically speaking. From the "golden era" of clinical rehabilitation in the 1960s, to the creation of parole guidelines in the 1970s, to the creation of sentencing guidelines in the 1980s, policymakers have embedded actuarial risk assessments in the technologies we create to shape punishment outcomes. Proponents use this reality to justify the expansion of statistically robust actuarial risk tools as sentencing reform today. The argument goes like this: These tools are simply better at doing what humans already try to do. What's more, advocates claim, the tools may be used for a beneficent purpose--to address unnecessary reliance on incarceration in a pragmatic way. Since the tools have improved and can continue to improve technically, why not use them?
This Article complicates that argument. Sentencing technologies do not just do what humans do. They change how society understands what we do by altering the meaning of social concepts that shape our human interactions. (1) This Article examines how three social concepts--rehabilitation, racial equality, and dangerousness--have altered through the obsessive pursuit of technological advancement at sentencing. It connects the conceptual changes with critical social transformations that sustain the sociohistorical phenomenon of mass incarceration. This includes increased castigatory government surveillance in marginalized communities, resignation to racialized punishment practices, and legitimation of the expanding net of the carceral state. By illuminating obscured transformations, this Article provides foundation to reframe and expand debates about technological sentencing reforms going forward.
Since the 1960s, states have incorporated risk assessments into the punishment technologies meant to shape sentencing outcomes. Recently, lawmakers, scholars, and policymakers have encouraged states to adopt more statistically robust actuarial risk tools as sentencing reform. (2) These tools rely on data observing and aggregating offenders' behavior in the past to predict an individual defendant's behavior in the future. (3) From an empirical standpoint, it is not clear that the tools reduce crime or incarceration. (4) Indeed, there is every reason to believe that increasing emphasis on risk will not reduce crime or incarceration. (5) Yet tools continue to proliferate as a pragmatic and "smart" sentencing reform in the face of growing bipartisan pressures to reduce reliance on incarceration. (6)
Several debates swirl around tool proliferation as a policy matter, in scholarship, and in the courts. (7) These debates are shaped by what this Article describes as the standard narrative of technological advancement. Advocates suggest that integrating this technology into the sentencing process is a natural step; an automated assessment of risk improves upon clinical--meaning unstructured--risk assessments and ensures the efficient allocation of resources. (8) These claims fit within the standard narrative about technology and society: technological improvements make tool use more acceptable and in fact preferable to human judgment. Logically, then, debates focus on whether and what makes tools more or less technically accurate. If the tools are accurate, or at least more accurate than older iterations, then their value at sentencing appears impervious.
Yet, this Article argues that current debates about actuarial risk tools as sentencing reform are incomplete. Sentencing technologies have an effect on society that current debates fail to consider. This Article asserts that technological sentencing reforms change the social concepts that shape punishment and society. It identifies pivotal shifts in the meaning of socially conceived ideas central to punishment spurred by the introduction of technology itself (9) In analyzing the social mutations, this Article demonstrates two points: (1) the conceptual shifts sustain further technological expansion; and (2) these conceptual shifts also obscure and legitimate problematic features of the sociohistorical phenomenon of mass incarceration. Thus, this Article concludes that actuarial risk tools as sentencing reform present a deeper threat than advocates or critics currently acknowledge. (10) As a technological sentencing reform, the tools threaten to strip society of the language to resist the status quo. By changing our conceptions of justice, the tools alter the foundation to critique societal problems sustaining mass incarceration.
This Article identifies and analyzes three social concepts that were altered through the proliferation of sentencing technologies. First, "rehabilitation" changed. Once connoting an egalitarian notion of reintegration and reform, the concept now refers to behavior management through government surveillance. The introduction of technology hollowed out this social concept. It now shares striking resemblance to incapacitation, meaning removal of the opportunity to commit crime in the future through punitive intervention. Yet because the term retains its positive association, society is less willing to critically engage with risk tools' advance. It also naturalizes the expansion of castigatory government surveillance into marginalized communities. Second, the meaning of racial justice mutated. The term once referred to concerns about arbitrary sentencing and the impact of racialized inequities on sentence outcomes. The introduction of sentencing technologies facilitated interpreting those inequities as natural. As such, sentencing technologies reified structural racism under the auspice of scientific objectivity. It also deified "technical formalism"--meaning here a resistance to engagement with tools in the context of societal realities. This has reduced the normative basis to limit sentencing technologies. It also legitimates the survival of racialized punishment practices that disproportionately affect minorities. Third, the terms danger and risk converged in social meaning. Whereas the two words once had different meanings, they are now considered the same concept in the context of punishment. This conflation strips society of the ability to discern a distinction between threat of actual harm and transformations in the realities of punishment and society. It also legitimates the expansion of the carceral net.
By illuminating these conceptual changes, this Article provides an important but underappreciated reason to resist risk tools as sentencing reform. In historical context, enthusiasm for the proliferation of statistically robust actuarial risk tools now generates from a persistent tendency to seek technical solutions to sociopolitical problems laid bare at sentencing. Some consider this as the tools' strength as sentencing reform. (11) These advocates suggest that actuarial risk tools provide a foundation for a bipartisan and depoliticized shift away from mass incarceration. Such claims, even if offered for a beneficent purpose, are a ruse. Implementing risk tools has costs we all bear--it changes us. Institutionalizing actuarial risk assessments threatens to diffuse political momentum for broader reform by excising social issues from debates. Worse still, sentencing technologies change the language with which society understands human interactions. For those who genuinely want to address the sociohistorical phenomenon of mass incarceration as the status quo, the language to do so is more limited. "Fixing the tools"...