Mimesis Law
20 May 2019

A Second Camel’s Nose Under the Sentencing Tent

Oct. 15, 2015 (Mimesis Law) — Coming soon to a federal sentencing court near you, Risk Prediction and the Sentencing Reform and Corrections Act of 2015 (S. 2123)—Empirical Methods to Assess Risk to Reoffend. So?

When I sentence someone to prison, one of things I concentrate on is risk to reoffend. Indeed, that is part of the goals of sentencing that Congress has set forth in 18 U.S.C. § 3553(a)(2)(C) (“to protect the public from further crimes of the defendant”). I have been and continued to be a strong supporter of empirical (actuarial) methods to get at this issue. See, e.g., Richard G. Kopf, Federal Supervised Release and Actuarial Data (including Age, Race, and Gender): The Camel’s Nose and the Use of Actuarial Data at Sentencing, pp. 207-215, Vol. 27, No. 4, Federal Sentencing Reporter (April 2015).*

Federal probation officers (who, by the way, are court employees) already use empirical methods to assess risk to reoffend during supervised release. Those methods are included in the Federal Post Conviction Risk Assessment (PCRA) apparatus which has been statistically validated by the Administrative Office of the United States Courts.

I have suggested that the use of such tools on supervised release is very much like the camel’s nose sliding under the tent. That is, there is no good reason why such instruments should not also be used at sentencing and not only while an offender is on supervised release.

Now I see a second “camel” poking her nose under the tent. You can find her nose in the Sentencing Reform and Corrections Act of 2015 (S. 2123) (click on “Sentencing Reform and Corrections Act”).

Summarized and condensed, Section 203 of the Act provides:

Post-Sentencing Risk and Needs Assessment System. The Attorney General is required to develop a risk and needs assessment system that will determine the recidivism risk of all federal inmates and classify inmates as having a high, moderate, or low risk of recidivism. The assessment system must also identify each inmate’s programmatic needs and identify appropriate programming. The system must measure indicators of progress such that each inmate (other than those already classified as low risk) has a meaningful opportunity to progress to a lower risk level during the time of the inmate’s incarceration through changes in dynamic risk factors, and that each inmate on prerelease custody (other than those already classified as low risk) has a meaningful opportunity to progress to a lower risk classification through changes in dynamic risk factors.

Id. (click on “Section by Section Fact Sheet”) (emphasis supplied by Kopf).

I am convinced that there are scientifically based and statistically validated methods at present to evaluate risk to reoffend. Those tools will get better over time, particularly because the Attorney General will be charged with refining such tools if section 203 of the Act is passed. That is a good thing, and serves as strong rebuttal to the naysayers.

In the meantime, judges who are tired of relying solely upon their own intuition will begin to experiment with these tools at sentencing as they assess an offender’s risk to reoffend. Trust me, empirical methods to assess risk to reoffend are coming to a federal sentencing court near you. I hope to be among those leading the charge.

Richard G. Kopf
Senior United States District Judge (Nebraska)

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