Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning

In this article, we review current practice in the incor­poration of risk assessment into the sanctioning systems of several illustrative states, and describe the major dimensions on which state practices differ. We then elab­orate the various meanings ascribed to the foundational concept of "risk" in criminal sanctioning, and contrast "risk" with what are now often called "criminogenic needs," the fulfillment of which ostensibly reduce an offender's level of "risk." Finally, we address the choice of an approach to risk assessment in sentencing, particularly in the resource-starved state of current correctional practice. We wish clearly to acknowledge at the outset that forward-looking and utilitarian risk or needs assessment in criminal sanctioning currently takes place-and in our view should take place-within bounds set by backward-looking and moral concerns about culpability and desert. We express no view here on how broad or narrow the bounds set by culpability or desert should be. A mean period of sanctioning of five years, for example, might have a per­missible range of sanctioning, set by moral considerations, of four-to-six years, of three-to-seven years, or of two-to-­eight years-ranges within which risk or needs assess­ments may be used to choose a specific sanction length. As long as a sanction is not set solely by retrospective moral considerations and some meaningful role is reserved in sanctioning for prospectively distinguishing among offen­ders at higher or lower risk of recidivism-by whatever method that risk is assessed-we believe that the issues raised here are germane.