Federal Criminal Risk Assessment

Authors

Brandon L. Garrett, Duke Law SchoolFollow

Document Type

Article

Publication Date

2019

Keywords

risk assessment, federal prisons, pre-trial, post-conviction

Abstract

Risk assessments are a common feature of federal decisionmaking, including across a range of administrative agencies. However, in federal criminal law, risk assessments have been only haltingly adopted. Decisions regarding bail, sentences, and prison programming have largely been made based on official discretion. Risk assessment instruments are currently used in federal courts pretrial and postconviction, and in federal prisons regarding security levels and reentry, with highly uneven results to date. The adoption of the First Step Act, which has the ambition to transform the federal prison system through the use of risk instruments, has the potential to introduce a more legitimate, transparent, and validated approach, using instruments developed publicly and, ideally, implemented consistently. Questions remain regarding whether the risk and needs instruments adopted will then be successfully and consistently implemented to assign inmates to programs, whether there will be adequate resources for those programs, and what the effectiveness of those programs will be. Prior efforts in the federal system, including concerns raised by reports and audits offederal risk assessment, as well as evidence from efforts in states and locally, suggest reason for caution and care as this new system is implemented. Important lessons can be learned from the successes and the failures of prior efforts to improve outcomes in the criminal system.

Citation

Brandon L. Garrett, Federal Criminal Risk Assessment, 41 Cardozo Law Review 121-149 (2019)