YOUNG AND DANGEROUS: THE ROLE OF YOUTH IN RISK ASSESSMENT INSTRUMENTS.

• Author: Yin, Ingrid

States are increasingly adopting risk assessment instruments (RAIs) to help judges determine the appropriate type and length of punishment for an offender. Although this sentencing practice has been met with a wide variety of scholarly criticism, there has been virtually no discussion of how RAIs treat youth as a strong factor contributing to a high risk score. This silence is puzzling. Not only is youth undoubtedly the most powerful risk factor in most RAIs, but youth also holds a special place in the criminal justice system as a "mitigating factor of great weight." This Comment presents the first in-depth critique of RAIs with respect to their treatment of youth. It argues that, as currently designed and implemented, RAIs both contradict longstanding and widespread views about the proper role of youth as a factor in punishment and undermine efforts to craft proportionate sentences consistent with principles of justice and modern social science.

TABLE OF CONTENTS INTRODUCTION I. Background on RAIs A. Structure and Development of RAIs B. Use of RAIs in Sentencing C. Youth's Role in RAIs 1. The Age-Crime Curve 2. Implications for Criminal Justice Policies II. THE PAST AND PRESENT OF PUNISHING YOUTH A. The History of the Juvenile Justice System B. The Superpredator Era C. The Modern Approach to Juvenile Justice III. PROBLEMS WITH RAI'S TREATMENT OF YOUTH A. Inconsistency with Principles of Juvenile Punishment B. The Superpredator Theory Reincarnated C. Beyond the Juvenile Justice System CONCLUSION INTRODUCTION

Risk assessment instruments (RAIs) are becoming increasingly influential in courtrooms throughout the country. (1) Developed from the crude psychological assessments of the 1930s, RAIs use actuarial science to calculate the likelihood of an individual committing a crime in the future. (2) These tools are now used across the criminal justice system--informing decisions about bail, the length and nature of the sentence, and parole. (3) Many jurisdictions have already adopted RAIs for one or more of these purposes, and the evidence suggests that more are likely to follow. (4) The popularity of RAIs, however, belies their problematic consequences: RAIs have the perverse effect of imposing longer sentences on young offenders than on older offenders for the same conduct. (5) Such a result is inconsistent with centuries of criminal justice doctrine regarding the punishment of youth and may well frustrate contemporary advancements in criminal justice policy. (6)

The appeal of these tools is obvious. RAIs, if accurate and used correctly (two big ifs), could make huge advances toward a more effective, accurate, and equal criminal justice system. (7) Proponents argue that RAIs can decrease crime by helping judges effectively identify--and thus separate--the most dangerous individuals from the general population. (8) At the same time, RAIs reveal which individuals are less likely to commit crimes in the future, allowing judges to recommend more lenient sentences for these offenders. (9) Proponents also argue that RAIs promote accuracy and equality by providing judges with objective, statistically supported information to guide their subjective risk assessments. (10)

Despite their potential benefits, RAIs have not been immune to criticism. In fact, a sizable body of literature challenges RAIs' promises of scientific objectivity and accuracy. (11) Critics argue that, rather than avoiding the subjectivity of human discretion, RAIs codify and veil the biased judgments and data on which they base their statistical analyses. (12) Critics point to studies showing that RAIs falsely identify Black men as future criminals at twice the rate that white men are falsely identified. (13) In addition to these concerns about objectivity, critics also raise doubts about the accuracy of RAIs more generally. For example, software engineer Julia Dressel and digital-forensics scholar Hany Farid concluded that a popular RAI was "no more accurate or fair than the predictions of people with little to no criminal justice expertise." (14)

Amid the crossfire between empiricists, another line of criticism has emerged. This critique, driven mostly by law professors and scholars, focuses not on RAIs' predictions but on the means by which these tools make their determinations. (15) RAIs use statistical correlations between crime and characteristics such as age and sex to determine the likelihood of a specific individual with these characteristics committing certain crimes in the future. (16) Because these calculations are used to make decisions concerning bail, sentencing, and parole, the result is that an individual's case can be significantly affected by personal traits in jurisdictions that use RAIs. (17) Such treatment sits uncomfortably with our idealized notions of impartial justice; capitalizing on these intuitions, scholars have urged states to reject RAIs as violative of the Equal Protection Clause and for being bad public policy. (18) RAIs' consideration of sex, employment status, income, education, dependence on government assistance, job skills, criminal history, family criminality, and other traits have been criticized on these grounds. (19)

But there has been virtually no discussion of RAIs' use of youth in legal or empirical scholarship.20 The literature's silence on the matter is particularly surprising in light of the extensive body of law that has developed over the last several centuries surrounding the punishment of young people. (21) And, considering that youth is the most predictive factor in a risk assessment score, (22) a conversation about the advisability of RAIs is incomplete without a thorough analysis of their particular effects on young people and their (in)compatibility with our system's longstanding practices regarding the punishment of youth.

This Comment fills this gap by arguing that the use of RAIs that treat youth as an aggravating factor in sentencing decisions contradicts our justice system's well-established commitment to treating young people more leniently. Continued application of these tools, as currently designed and implemented, also replicates dangerous mistakes of the past. While RAIs are used throughout the criminal justice system, this Comment will focus primarily on their use in sentencing. An analysis of the sentencing stage provides a particularly compelling picture of the criminal justice system's otherwise-tender-hearted treatment of youth and thus offers an exceptionally stark illustration of the hypocrisies relating to RAIs' treatment of youth as an aggravating factor. These issues are not unique to sentencing, however, and the tools used at sentencing are often the very same tools used at bail or parole. (23) As such, this Comment's arguments have broader implications for the other uses of RAIs as well.

Part I provides an overview of the structure, development, and use of RAIs. It also explains the role of youth in RAI calculations. Part II then traces society's evolving understanding of the proper role of youth in punishment, beginning with the common law infancy defense and progressing to the science-based understanding we have today. Lastly, Part III analyzes the ways that RAIs' treatment of youth as an aggravating factor conflicts with principles concerning the proper role of youth as a factor in punishment.

1. BACKGROUND ON RAIS

   In 1994, Virginia became the first state to adopt an RAI for use in sentencing. (24) By 2019, twenty-eight states had adopted a similar kind of RAI. (25) There is reason to think that there will be even more expansion in the future: politicians, sentencing commissioners, and other policymakers have argued in support of RAIs. (26) So have organizations like the National Center for State Courts and the American Law Institute. (27) As sentencing scholars Mirko Bagaric and Gabrielle Wolf stated, " [i]t seems inevitable that transparent and validated risk assessment tools will progressively be used in sentencing." (28)

   This Part provides an overview of RAIs and considers how youth affects an offender's risk of recidivism. Section I.A describes the different kinds of RAIs, from simple checklists to complex machine-learning algorithms. Section I.B summarizes how judges use RAIs to make sentencing decisions. Section I.C reviews the biological differences between young people and older people and assesses how these differences contribute to higher risk scores for the former.

   1. Structure and Development of RAIs

      While most RAIs consider youth, the structure of these tools differs greatly. The most basic are essentially checklists, most often consisting of seven to fifteen factors. (29) Each factor is associated with a number of points depending on that factor's association with future crime. (30) The points are then totaled into a cumulative risk score. (31) Some RAIs further categorize risk scores into low-, medium-, or high-risk groups, while others have a cutoff score under which an individual is recommended for alternative sentencing. (32) When RAIs categorize offenders' scores into risk groups, judges typically receive only the offender's overall risk category, not the risk factors or calculations used to generate these labels. (33)

      One example of a checklist-style RAI is Virginia's Nonviolent Offender Risk Assessment (NVRA). The NVRA was developed by the Virginia Criminal Sentencing Commission to "identify drug and property offenders who were at the lowest risk of committing a new crime." (34) Its goal was to divert these low-risk offenders from prison to noncarceral interventions, like outpatient drug or mental health care programs. (35) The NVRA uses a variety of factors--such as offense type, sex, age at time of offense, and prior felony convictions--to determine the offender's total score. (36) Those who score thirty-eight points or fewer are recommended for an alternative punishment, while those who score thirty-nine points or more are not. (37)

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