A number of states use statistically derived algorithms to provide estimates of the risk of reoffending. In theory, these risk assessment instruments could bring significant benefits. Fewer people—of all ethnicities—would be put in jail prior to trial and in prison after conviction, the duration of sentences would be reduced for low-risk offenders, and treatment resources would be more efficiently allocated. As a result, the capital outlays for prisons and jails would be substantially reduced. The public would continue to be protected from the most dangerous individuals, while lower-risk individuals would be less subject to the criminogenic effects of incarceration and better positioned to build and maintain a life outside of jail or prison that does not involve criminal activity.
Risk assessment instruments cannot fully realize these benefits, however, unless the currently popular determinate sentencing structure that exists in most states is dramatically altered. Today, determinate sentencing states give almost all sentencing power to prosecutors, who in essence fix the sentence range through charging practices, and judges, who decide where within the range the sentence will fall and occasionally select a sentence outside that range. The result is that even an offender who poses a low risk of reoffending will often receive a lengthy sentence of imprisonment.
This Article describes what it calls a preventive justice sentencing regime, which adopts sentence ranges consistent with the offender’s desert and then relies on expert parole boards to determine the nature and duration of sentence within this range, based on consideration of individual prevention goals (i.e., incapacitation, specific deterrence, and rehabilitation) as measured through risk assessment instruments. In the course of doing so, it defends risk assessment instruments, which have been subject to a wide range of attacks on accuracy and fairness grounds. A well-constructed system of preventive justice can alleviate many of the inherent tensions between desert and prevention, between deontology and political reality, and between the desire for community input and the allure of expertise. If done properly, it should also significantly reduce prison populations.
