Evidence Based Sentencing
Kansas has faced an increase in jail populations in the past thirty years. The trend has been a cause for concern among leaders as they struggle to find ways of reducing the population without becoming lenient on crime. One of the strategies used in the past and a preference for most leaders is the use of evidence-based risk assessment tools. Judges have, in previous cases, admitted to facing challenges determining the effective punishment for an offense and the risk involved in the sentence given. Generally, offenses might not be unquantifiable, and the sentence given might either be too harsh or too lenient. Also, finding the right sentence weight might help in reducing jail terms for some criminals, and the jail population problem might be solved for good. Risk assessment tools are, however, not the best strategies to avert the problems facing the judicial systems as they only use data fed to them from the same systems that have been responsible for the problems.
Risk assessment tools fail in providing transparency on the data and methods used for assessment. The US is a sovereign country that operates under liberties and civil rights set out by the constitution. Models that rely on data have to incorporate transparency as a way of ensuring that civil rights are not denied under the excuse of maintaining a tight grip against crime. Generally, the Kansas court system is not new to racial bias when it comes to the administration of justice. People have been taken to jail while others who should have suffered the same fate have been allowed to walk scot-free simply for belonging to a different race. The data on the court systems can therefore not be trusted to be free from impacts of racial bias that has been in existence for ages. Risk-assessment tools have been using the systems developed throughout history, and the lack of transparency leaves the tools with more unanswered questions. Risk assessment tools should, therefore, not be used in the determination of sentences since they will not serve the purpose of addressing overcrowding and racial disparities in the Kansas criminal justice.
Criminal justice data should be used purposely for contenting against the evils in society. Racism, discrimination, and mistreatment are some of the evils facing Kansas, and the courts should be aiming at ways of eliminating such vices (Scurich & Monahan, 2016). However, the choice to use evidence-based risk assessment tools appears to have not taken into account the primary goal of the judicial systems. The criteria used by most of the tools raise questions on the authenticity of the tools. For example, it beats logic to use employment and community ties as factors in determining the risk involved in sentencing an offender. The tools might become the new sources of the biases that they are meant to overcome. Besides, the courts appear to control everything, and the offender is not given the right to assess the evidence used to come up with their sentence. Moreover, the move to eliminate human error appears to have gotten into the minds of legislators to the extent of failing to understand the complications that evidence-based risk assessment tools might bring to the judicial systems.
Risk assessment tools have been employed as a way of eliminating human errors that are common in judicial systems. However, the bases of foundation appear to have overlooked the risk that most of the tools might lead to more complex challenges in the future (Scurich & Monahan, 2016). The advocates of risk assessment tools have always argued that sentencing has used historical data to predict the future for a long time. One of the evidence provided by advocates is the creation of the Federal Sentencing Guidelines, which was based on the analysis of data from convictions and presentence. The argument treats modern models as methods of ensuring more accuracy when dealing with sentencing procedures. However, the argument brings back the issue of past weaknesses in the judicial system that made it to be compromised by racism and discrimination based on social classes. Therefore, the advocates of risk assessment tools fail to present tangible evidence explaining why the tools should be used despite all the questions that arise from their application.
The Equal Protection Clause is one of the major considerations when making decisions in the criminal justice system. Individuals are expected to face uniform treatment in the pursuance of justice, but that appears to be put to the test by the risk assessment tools. Most of the assessment tools make estimations b analyzing the crime against a set of factors that determine the risk to be considered when sentencing is to be made. Some of the factors are age, gender, and county of origin. Such factors can only be viewed as efforts to set a stage where equality will be theoretical. Besides, the consideration of gender will only mean that women will be treated differently compared to men, while age means that people at different age brackets will receive different treatments. Also, the county factor might be used to label some counties as having people with high risks of reoffending compared to other counties, which might compromise the equal administration of justice. Therefore, the risk assessment tools should be scrutinized based on factors considered in analyzing risk, or the Kansas courts find alternative ways of justifying sentencing. Moreover, evidence-based risk assessment tools could take the judicial system back to the dark periods when bills of attainder were used to punish people for being members of a marked group.
Evidence-based risk assessment tools come up with recommendations and benchmarks for setting certain sentence conditions. The main role played by risk assessment tools is to assess the risk of an individual reoffending and harming the society if a certain sentence is made (Monahan, 2017). Generally, the tools specify the efficient sentence for an offender so that the risk of reoffending is minimal and that the judge does cannot be held responsible for anything that happens after their sentence is served fully. However, the strategy might come out wrongly since the recommendations involve grouping people according to the risk of reoffending and harming society. The amount of risk associated with an offender is used to determine the sentence that befits them and saves society from potential trouble. However, the grouping of people according to the risk of committing an offense brings out the outlawed bills of attainder. The constitution does not allow the judicial systems to group people according to their risk of committing a crime as that compromises the administration of justice. Therefore, the Kansas courts should desist from models that might lead them into acting unconstitutionally as the courts should be on the frontline in respecting the constitution.
An argument can be presented to present risk assessment tools as a basis for sentencing people without trial. The main idea behind risk assessment is to identify the risk of a person to reoffend harm society and not the most efficient sentence for the current offense. Other factors such as history in crime worsen the situation since people are classified according to their past behaviors and the expectation that they might repeat the offenses in the future. When the risk has been assessed, a judge is expected to pass judgment with regard to the risk estimate provided. Therefore, the risk assessed by the model in one way or another affects the final sentence and shapes it according to the grouping done according to risk. People grouped as being risky face a difficult time getting justice because their sentence appears to have been made before conviction. No one would want to see the judicial system turn into a mediocre system that does not listen to an offender simply because a certain model has classified them as being dangerous. Moreover, the risk assessment tools leave more unanswered questions, hence their reduced popularity among different stakeholders in the criminal justice systems.
The authenticity of a strategy can be measured from its ability to answer the questions that come out of its proposal. When risk assessment tools were introduced into the criminal justice system and excitement filled the hearts of people who had felt that the system was not developing in the right direction (Carlson, 2017). The overpopulation in prisons and the extremely long jail terms were becoming a norm, and everyone felt that something needed to be done. However, the risk assessment tools have not served the initial purpose, and people have come out to express their concerns on the effectiveness of the strategies. Effective strategies will live a few questions unanswered, if any, and thus the risk assessment has fallen below the authentic test. A sensitive sector such as the criminal justice sector cannot depend on questionable policies as that would become a stumbling block in the journey to ensure that justice is available to all the Americans. One of the questions that have been left unanswered is the degree of reliance on risk assessment tools by a judge at any given time.
The opinions from stakeholders in the criminal justice systems have been divided on the level of reliance on the risk assessment tools by judges. The opinion that risk assessment should be done on probation hearing and pre-trial release has made sense to most stakeholders. The main reason for the use of the risk assessment tools can help in determining the specific treatment for each offender. The basis for the argument on pre-trial preference is that overreliance may come in where judges believe the figures provided in the assessment to be accurate and reliable. Besides, judges appear to be concerned about the extent to which a sentence might reduce the risk of recidivism instead of the risk that recidivism might occur. Generally, a disagreement occurs in the opinions of stakeholders in the criminal justice systems concerning the extent of reliance by judges to the assumptions made by evidence-based risk assessment tools. Moreover, the factors considered in most of the tools live further unanswered questions.
The factors used in risk assessment tools have, for a long time, been criticized for leaving loopholes for questioning. Most of the factors that risk assessors use are demographic, socioeconomic, and family characteristics, which pave the way for inequality (Kehl & Kessler, 2017). First, the socioeconomic and demographic factors lead to racial factors that have been an issue in the judicial systems. Issues that have a racial impact tend to draw criticism from people who think that racism is a hindrance to the administration of justice. Another issue that comes among the factors considered in the risk assessment tools is the inequality created by the risk scores. When demographic factors, for example, are considered, the people in the urban areas might have high-risk scores compared to their counterparts living in the upcountry.
Furthermore, the picture portrayed is, however, not real because the fact that urban areas have high crime rates does not mean that urban dwellers have a higher risk of committing a crime. The only issue of concern is that urban areas have larger populations, hence the increased crime rates, and that has nothing to do with individual behaviors. The Kansas courts should, therefore, scrutinize the use of risk assessment tools on the basis of equality and choice of factors to analyze. Moreover, the right to follow due process in the hearing of cases is the right of everyone, and risk assessment tools have put to the test the rights of offenders.
The constitutionality of court processes in Kansas courts lies with respect to the rights of everyone involved in the pursuance of justice. Offenders have a right to be represented by attorneys in the court of law, and a sentence cannot be given before the defendants are allowed to give their side of the story. The tradition, however, appears to be losing the basis with the introduction of risk assessment tools. The analysis of risks is done on a proprietary basis, and defendants are not allowed to challenge the validity of the results. The broader idea in the process is that the defendant’s right to due process is denied, and results from the risk assessment tools are prioritized. Also, the fact that the risk assessment process is secret and non-transparent eliminates the possibility that the defendants can challenge the falsity of the information provided. Also, the processes fail the constitutionality test since the analysis provides different outcomes depending on gender, which should not be the case. Therefore, it should be in the interest of Kansas courts to reject the use of tools that advocate for unconstitutionality in the process of administering justice. Moreover, the use of assessment tools might eliminate the traditional appeal for the process as everyone believes the tools to be efficient.
A tool that has been widely believed to be effective might cause more damage to a system if it turns out to be ineffective. Risk assessment tools have received championing from various bodies leading to the notion that human error has been eliminated from the judicial service (Van, 2017). However, such a perspective could be disastrous if other factors come into play, and the system provides misleading information. One of the most common methods used to ensure the validity of information used for the assessment tools is the use of lie detectors. Individuals are placed in a lie detector machine when questions to be used on the analysis are being asked. However, the lie detector machine is not a hundred percent effective. Most believe that the margin of error can be ignored, and the data assumed to be effective. However, logic has it that no error should be ignored. Besides, factors such as nervousness, tension, fear, and emotional upset are common even among innocent people.
Moreover, the error from such situations cannot be ignored, as most experts argue. The probability of making wrong conclusions is high for innocent people who cannot maintain their composure, and wrongful convictions can happen. Therefore, the Kansas courts should look for alternative tools of closing the loopholes in the systems instead of going for strategies that might worsen the situation.
In sum, evidence-based risk assessment tools are not the best strategies to avert the problems facing the judicial systems as they only use data fed to them from the same systems that have been responsible for the problems. Models that rely on data have to incorporate transparency as a way of ensuring that civil rights are not denied under the excuse of maintaining a tight grip against crime, and that is not the case with evidence-based risk assessment tools. The Kansas courts should look for alternative tools of closing the loopholes in the systems instead of going for strategies that might worsen the situation. Generally, Kansas courts should not use evidence-based risk assessment tools since they worsen the situation in the judicial systems instead of offering solutions to the existing problems.
References
Carlson, A. M. (2017). The need for transparency in the age of predictive sentencing algorithms. Iowa L. Rev., 103, 303.
Kehl, D. L., & Kessler, S. A. (2017). Algorithms in the criminal justice system: Assessing the use of risk assessments in sentencing’
Monahan, J. (2017). Risk assessment in sentencing. Academy for Justice, a Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017, Forthcoming)
Scurich, N., & Monahan, J. (2016). Evidence-based sentencing: Public openness and opposition to using gender, age, and race as risk factors for recidivism. Law and Human Behavior, 40(1), 36.
Van Eijk, G. (2017). Socioeconomic marginality in sentencing: The built-in bias in risk assessment tools and the reproduction of social inequality. Punishment & Society, 19(4), 463-481.