Holder: Courts Should Avoid ‘Risk Assessments’ in Sentencing

Attorney General Eric Holder recently aired his concerns that judges across the nation are unfairly factoring risk assessments into their sentencing procedures, and warned that this calculation violates the rights of defendants.

Increasingly, several states — including Pennsylvania and Tennessee — have been enacting the use of such risk assessment or recidivism formulas, which take into account factors like the age, gender, history of drug use and criminal record. While the assessment is intended in part to keep offenders who are deemed at low risk for recidivism out of long imprisonment terms, preventing the overcrowding that has become such a massive problem across the country, Holder cautioned that it is not fair to attempt to predict future behavior or to make a calculation based in part on factors the defendants can’t even control.

In addition to factors like age, gender and history, these risk assessments are also looking at the education and socioeconomic or neighborhood background of the defendant, a technique that is already placing minorities at a critical disadvantage –– particularly when it comes to drug-related charges, since courts tend to emphasize the correlation between drug use and socioeconomic background.

Holder emphasized the necessity of a return to the “innocent until proven guilty” principle the country’s criminal justice system was built on. Criminal sentences, he reminded criminal defense lawyers in a speech this May at the National Association of Criminal Defense Lawyers in Philadelphia, are only supposed to be based on the actual crime committed, the factual circumstances of that crime and the law it violated, as well as, in applicable cases, the defendant’s criminal history.

Using factors the defendant cannot control, such as background and education, is out of the court’s realm, and using them to predict the defendant’s potential for committing future crimes is tantamount to punishing the defendant for a crime that hasn’t been committed.

Reading criminal defense attorney David R. Eshelman can provide you with more information about the use of risk assessment in criminal sentencing.