Download Actuarial risk assessment. The loss of recognition

Law, Probability and Risk (2006) 5, 175−200
Advance Access publication on February 26, 2007
doi:10.1093/lpr/mgm001
Actuarial risk assessment. The loss of recognition of the
individual offender
R ASMUS H. WANDALL†
Post Doctoral Research Fellow and Assistant Research Professor, Faculty of Law,
University of Copenhagen, Copenhagen, Denmark
[Received on 24 January 2006; revised on 29 November 2006;
accepted on 13 December 2006]
The paper is about the design of sentencing decision-making. It contrasts the actuarial risk assessment instrument (ARAI) in the Commonwealth of Virginia to the statutory and judicial guidance
in Denmark. Both are used as frameworks to identify and classify offenders eligible for diversion
to alternative sanctions to imprisonment. By contrasting the sentencing frameworks, the paper articulates and defends the view that actuarial risk assessment as introduced in Virginia challenges a
fundamental quality of modern penal justice of recognizing the moral personality of individuals subjected to criminal sentencing. The paper also shows that sentencing judges in Virginia, despite the
unambiguously aggregate language of the ARAI, are provided some space to construct sentencing as
a more concrete and individualized analysis, relying on the discretionary character of the instrument.
Yet, from this discretionary construction flows not only that sentencers are released from the formal
legal structures but also that sentencing judges are subjected to the enforcement mechanisms of the
Virginia Criminal Sentencing Commission, outside the scope of judicial review.
Keywords: sentencing; risk; comparative; actuarial; alternatives to imprisonment; fundamental rights.
1. Introduction
Following the ‘truth-in-sentencing’ reforms in 1995, the Commonwealth of Virginia has implemented actuarial risk assessment instruments (ARAIs) to identify and divert low-risk offenders to
alternatives to imprisonment in a number of non-violent crime categories. The instruments respond
to an immediate need to make available additional prison space. In so doing, Virginia places itself
within a tradition of strategies striving to limit or restrain the use of imprisonment in penal systems in
both North America and Europe.1 For more than a century, penal justice administrations have struggled against resource constraints, overpopulated prisons and the damaging effects of imprisonment.
Later decades’ financial constraints and tough crime policies have made it necessary to respond to
the sizes of prison populations.2 Like many penal strategies elsewhere, the Virginia sentencing structures guide sentencing courts to identify, select and divert eligible offenders for alternative sanctions
† Email: [email protected]
1 T ONRY, M. & F RASE , R. S. (eds) (2001) Sentencing and Sanctions in Western Countries. New York: Oxford University
Press.
2 See, e.g. BARKOW, R. E. (2005) Federalism and the politics of sentencing. Columbia Law Review, 105, 1276, 1285;
W ILHELM , D. F. & T URNER , N. R. (2002) Is the Budget Crisis Changing the Way We Look at Sentencing and Incarceration?
New York: Vera Institute of Justice.
c The Author [2007]. Published by Oxford University Press. All rights reserved.
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to imprisonment. Unlike strategies elsewhere, Virginia designs its guidance using actuarial technology. It identifies groups of high-risk and low-risk offenders, and selects the low-risk offenders
for alternative sanctions to imprisonment. The ARAI targets cohorts of offenders defined by their
statistical risk profiles and not by their clinical risk profiles.
The scholarship on the rise of actuarial risk strategies in the field of criminal justice and penal
administration has portrayed the shift from a focus on individual offenders and their responsibility
to a focus on overall management of populations as a key feature of this strategic shift. Arguably,
the interest in the moral responsibility of the individual offender and the intentions of social reform
and rehabilitation have been cut back by an interest in controlling groups of high- and low-risk
offenders. The argument is that the individual offender is less viewed as a morally invested agent
and less as a subject of social reform, but more as a numerical construct in the targeting of populations. The examples informing on this shift span from ideologies of selective incapacitation, ‘three
strikes’-legislation, the use of preventive detention, the increased reliance on risk prediction instruments, numerical sentencing guidelines, profiling instruments and, most importantly, the widespread
increase in system-oriented goals and productivity standards in penal justice administration.3
This argument, that a shift from individualization to an aggregation or categorization of penal
justice administration is taking place, has not been received unchallenged. The demise of the individual as a subject of analysis is not widely accepted as a general shift in orientation in the penal
field.4 There are many examples of penal justice structures pertaining to some form of individualism. Neither is it generally accepted that the shift has generally seeped down to the local level of
actual practice. A number of empirical studies have persuasively argued that practitioners are guided
by more and other than actuarial structures, despite what may be expected from the discourse of
the policy level.5 From a socio-legal point of view, it is not surprising that policies of actuarial risk
3 A LBRECHT, H.-J. (2001) Post-adjudication dispositions in comparative perspective. In Sentencing and Sanctions in
Western Countries, supra n. 1 at 293; A LSCHULER , A. W. (1991) The failure of sentencing guidelines: a plea for less
aggregation. University of Chicago Law Review, 58, 901; B OTTOMS , A. (1995) The philosophy and politics of punishment
and sentencing. The Politics of Sentencing Reform (C. Clarkson & R. Morgan eds). Oxford: Clarendon Press, p, 17; F EELEY,
M. M. (2004) Actuarial justice and the modern state. Punishment, Places and Perpetrators. Development in Criminology and
Criminal Justice Research (G. Bruinsma, H. Elffers & J. D. Keijser eds). Portland: Willan Publishing, p. 62; F EELEY, M.
M. & S IMON , J. (1992) The new penology: notes on the emerging strategy of corrections and its implications. Criminology,
30, 449; F EELEY, M. M. & S IMON , J. (1994) Actuarial justice: the emerging new criminal law. The Futures of Criminology
(D. Nelken ed.). London, Thousand Oaks: Sage, p. 173; M ATHIESEN , T. (1983) The future of control systems. The Power to
Punish (D. Garland & P. Young eds). London: Humanities Press, p. 130; P ETERS , A. A. G. (1986) Main currents in criminal
law theory. Criminal Law in Action. An Overview of Current Issues in Western Societies (J. van Dijk, C. Haffmans, F. Rüter, J.
Schutte & S. Stolwijk eds). Deventer: Kluwer Law and Taxation Publishers, p. 19; S IMON , J. (1988) The ideological effects
of actuarial practices. Law & Society Review, 22, 771; S IMON , J. & F EELEY, M. M. (1995) True crime: the new penology
and public discourse on crime. Punishment and Social Control. Essays in Honor of Sheldon L. Messinger (T. Blomberg &
S. Cohen eds). New York: Aldine de Gruyter, p. 147; S IMON , J. & F EELEY, M. M. (2003) The form and limits of the new
penology. Punishment and Social Control. Essays in Honor of Sheldon L. Messinger (T. Blomberg & S. Cohen eds), 2nd edn.
New York: Aldine de Gruyter, p. 75; S PARKS , R. (2000) Perspectives on risk and penal politics. Crime, Risk and Insecurity
(T. Hope & R. Sparks eds). London: Routledge, p. 129; G ARLAND , D. (2001), The Culture of Control. Crime and Social
Order in Contemporary Society. Chicago: University of Chicago Press, pp. 113–120 and 179.
4 See, e.g. G ARLAND , D. (1995) Penal modernism and postmodernism. Punishment and Social Control, supra n. 3 at
181; ROSE , N. (2000) Government and control. Criminology and Social Theory (D. Garland & R. Sparks eds). Oxford:
Oxford University Press, p. 183; C AVADINO , M. & D IGNAN , J. (2006) Penal Systems. A Comparative Approach. London:
Sage Publications.
5 See, e.g. BAYENS , G. J., M ANSKE , M. W. & S MYKLA , J. O. (1998) The impact of the ‘New Penology’ on ISP.
Criminal Justice Review, 23, 51; H ANNAH -M OFFAT, K. (1999) Moral agent or actuarial subject. Theoretical Criminology,
3, 71; M ILLER , L. L. (2001) Looking for postmodernism in all the wrong places. Implementing a new penology. British
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assessments look different in actual practice and embrace some level of concrete consideration of
the individual offender and his or her culpability.6 Sentencing is practiced by individual judges and
defines the penal fates of individual human beings; consequently, it will not be entirely individualized or entirely aggregated or categorical. Sentencing will be structured and practiced somewhere
in the tension between extreme individualization and aggregation. Yet, while new frameworks and
technologies do not necessarily change the subject of penal analysis uncompromisingly, they may
change the balance between individualization and aggregation, and change the ways in which the
individual offender is constructed in the framework of sentencing.7 The concept of individualization
is well-known but used in many different ways. Section 2 presents a brief outline and discussion of
the concept.
In this paper, I contrast the actuarial framework in Virginia to the parallel framework in Denmark
to explore how the shift to an actuarial technology affects the degree of individualization in the
choice of selecting some offenders for imprisonment and others for alternative sanctions. The Commonwealth of Virginia is the first jurisdiction to formalize a sentencing framework with actuarial
risk assessment at the sentencing stage, selecting groups in high-risk and low-risk offenders. As
such, the Commonwealth of Virginia provides perhaps the best example to date of implemented
actuarial sentencing techniques. As a penal system, Virginia is characterized by high imprisonment rates,8 high sentencing levels,9 and a tough-on-crime political environment during the last
decade in particular.10 Virginia is a southern state with a history of racial segregation and socioeconomic differentiation, constituting one of the strong political grounds for reforming and increasing the degree of structuring sentencing decision-making, beginning already in the 1980s.11
Denmark has not implemented actuarial technologies in its sentencing framework, but relies on
more traditional combinations of statutory and judicial guidance of sentencing courts. As a penal
system, it is characterized by low imprisonment rates and shorter sentences.12 Despite popular justice politics since the early 1990s, the penal policy in Denmark remains characterized by its welfare
Journal of Criminology, 41, 168; K EMSHALL , H. & M AGUIRE , M. (2001) Public protection, partnership and risk penality.
Punishment and Society, 3, 237; K ELLOUGH , G. & W ORTLEY, S. (2002) Remand for plea: bail decisions and plea bargaining
as commensurate decisions. British Journal of Criminology, 42, 186.
6 See, e.g. F EELEY, M. M. (1979) The Process is the Punishment. New York: Russell Sage Foundation; M C BARNET,
D. J. (1981) Conviction: Law, the State and the Construction of Justice. London: The Macmillan Press Ltd; U LMER , J.
T. (1997) Social Worlds of Sentencing. Court Communities Under Sentencing Guidelines. Albany: State University of New
York; WANDALL , R. H. (2004) Sentencing to Imprisonment. A Socio-Legal Study of Decisions to Incarcerate in Danish
County Courts. Ph.D Thesis. University of Copenhagen.
7 As to this tension in general, see, e.g. B ENTZON , V. (1914) Skøn og Regel. Copenhagen: Universitetsbogtrykkeriet (J.
H. Schultz A/S); NAGEL , T. (1991) Equality and Partiality. New York: Oxford University Press.
8 The average daily prison population is 410 per 100,000 inhabitants in the Commonwealth of Virginia. The prison population is 31,045 (June 2005) and the state’s population is 7,567,465 (July 2005).
9 Average sentence for first-degree murder 1995–1997 = 49.6 years; for second-degree murder 1995–1997 = 21 years. See
O STROM , B. J. (1999) Truth-in-Sentencing in Virginia: Evaluating the Process and Impact of Sentencing Reform. National
Center for State Courts. Williamsburg, VA: , p. 28.
10 See also T ONRY, M. (2001) Punishment policies and patterns in Western countries. In Sentencing and Sanctions in
Western Countries, supra n. 1 at 15.
11 See, e.g. Unequal Justice, Reprinted from The Richmond Times-Dispatch. A series published 16–21 October 1983.
12 The average daily prison population is 77 per 100,000 inhabitants in Denmark. The prison population is 4,198 (October
2005) and the country’s population is 5,420,000 (October 2005). The average sentence for murder is 10.9 years (1996–2000)
(excluding cases for life imprisonment and preventive detention). See Straffelovrådet, Betænkning nr. 1424 om straffastsættelse og strafferammer III. Bilag: Statistik undersøgelse af domspraksis 190 (2002).
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oriented and both politically and socially inclusionary modes of sanctioning.13 The comparison is
one between sentencing frameworks in two contrasting penal and political systems.
The paper is divided into seven sections. Following this introduction, Section 2 briefly discusses
the concept of individualization, and Section 3 introduces the designs of diverting offenders to alternative sanctions in Denmark and Virginia. In Section 4, the paper addresses the question of individualization and aggregation, and explores how individual offenders are represented under the
framework of the ARAI. Section 5 explores the discretionary nature of actuarial risk assessment in
Virginia and Section 6 explores how the actuarial risk assessment is enforced as a framework for
sentencing decision-making. Section 7 concludes the article. Specific data on the testing of the risk
assessment model in Virginia appears in Section 3.2 and further in Section 4.2.2. Data on the actual
use of the instrument appear in Section 5.
2. Individualization and aggregation
Before embarking on the analysis it is necessary to offer some words on the concept of individualization. Few concepts in the realm of sentencing and sanctioning are attributed more diverse
meanings. Firstly, individualization in sentencing can be taken to infer wide sentencing discretion, importing problems of subjectivity and inconsistency and the expectation of discriminatory
sentencing.14 From such a perception, aggregation or categorization in sentencing can be seen as a
desirable goal, bringing about objectivity, consistency and equality in sentencing. In close connection, individualization can secondly refer to a penal ideology of individualized treatment in sentencing, tailoring the sanction to meet the social and psychological profile of the individual offender.15
Aggregation or categorization in this context reflects an ideological shift from individual preventive sentencing to deontological sentencing, emphasising that sentencing should reflect the crime
committed irrespective of individual differences. Thirdly, individualization may be related to the
theoretical need of sentencing offenders relative to their individual desert, echoing the moral capabilities of individual offenders.16 Aggregation and categorization in this context would represent a
denial of the individual culpability in sentencing.
It is beyond the scope of this paper to discuss the merits of these perceptions. What is vital
here is to emphasize that individualization as used in this paper does not cover these meanings.
Individualization in this paper is taken to mean that the sentencing framework in one way or another shall recognize the individual offender as just that, and not merely as a member of a group or
13 About recent popular justice trends, see BALVIG , F. (2003) Da lov og orden kom til Danmark. Social Kritik, 85,
38. About the welfare characteristics of Danish penal systems, see comparatively C AVADINO & D IGNAN, supra n. 4 at
149–170 on Sweden and Finland, and see B ONDESON , U. V. (2005) Levels of punitiveness in Scandinavia: description and
explanations. The New Punitiveness: Trends, Theories, Perspectives (J. Pratt, D. Brown, S. Hallsworth, M. Brown & W.
Morrison eds). Devon: Willian Publishing, p. 189.
14 F RANKEL , M. (1972) Lawlessness in sentencing. University of Cincinnati Law Review, 41, 1.
15 S ALEILLES , R. (1898) L’individualisation de la peine: étude de criminalité sociale. Paris: Librarie Félix Alcan 1927;
H AUGE , R. (1996) Straffens Begrundelser. Oslo: Universitetsforlaget; A SHWORTH , A. (2002) Sentencing. The Oxford Handbook of Criminology (M. Maguire, R. Morgan & R. Reiner eds). Oxford: Oxford University Press, pp. 1076, 1080.
16 See, e.g. M OORE , M. (1997) Placing Blame: A Theory of Criminal Law. Oxford: Oxford University Press. See also
H OOD , R. (1974) Tolerance and the Tariff. NACRO meeting in the House of Lords on the 22nd of July 1974, NACRO,
London, illustrating these distinctions.
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as a numerical unit in a category of cases.17 Brought on by the renaissance and the Enlightenment
movements,18 individualization stands for a respect for the individual offender, treating individual offenders equally and respecting the dignity of human beings—also when sentencing. In this
light, individualization does not carry the meaning of discrimination, does not carry the meaning of
subjectivity or lawlessness in sentencing and does not go to the ideological positions of individual
prevention or culpability. Individualization merely represents the need to reflect the moral personality of each individual offender in the process of sentencing; it reflects the charge that it is individuals
who are the subjects and not merely the objects of sentencing. The question before us then is to what
extent and how this is done in these two contrasting ways of organizing the selection of offenders
for imprisonment and alternatives to imprisonment.
3. Sentencing strategies to limit the use of imprisonment
3.1
Structured discretion and the diversion of the promising offenders. The case of Denmark
Sentencing in Denmark is organized as a compromise between the legislator, the judiciary and the
individual sentencing court. A Penal Code defines wider sentencing ranges for specific criminal
offences and groups of criminal offences. For example, Penal Code §285 prescribes that a group of
property crimes (e.g. theft, embezzlement and fraud) shall be sentenced to a maximum of 1 year and
6 months imprisonment.19 There are no mandatory fixed sentences and only minimum sentences
for a few crime categories.20 A few general provisions in the Penal Code guide sentencing courts
in choosing sanction. For example, Penal Code §56 empowers courts to suspend sentences when
imprisonment is considered ‘unnecessary’ and §62 empowers courts to impose community service if
an ordinary suspended sentence is found to be ‘insufficient’ and the offender is considered ‘eligible’
for community service.21
In itself, this framework leaves immense discretion to sentencing courts. Yet, it is not unguided.
Courts are subjected to further structuring in the administration of their sentencing powers. First,
§80 in the Penal Code, containing main sentencing criteria, instructs courts to take both factors related to the crime and the offender’s personal and social characteristics into consideration. Second,
Penal Code §81 and §82 list statutory sentencing criteria to guide the actual sentencing. Third, sentencing courts are subjected to the court practice of the Supreme Court and the Eastern and Western
High Courts. This court practice guides sentencing in several ways: relevant sentencing principles
and criteria are exemplified to the sentencing courts, appropriate sentencing levels are defined and
17 See WANDALL , R. (2006) Equality by numbers or words. Criminal Law Forum, 17, 1–41.
18 See, e.g. H OBBES , T. (1651) Leviathan 86–90. Cambridge: Cambridge University Press 1996; L OCKE , J. (1975; 1690)
Two Treatises of Government 3, chapter 2. London: Dent; C HARLES L OUIS DE S ECONDAT DE M ONTESQUIEU (1757) De
l’Esprit de Lois. Book VI, p. 2 and Book VIII. Genève, p. 3; B ECCARIA , C. (1764) Om forbrydelse og Straf §IV and §XXI.
København: Museum Tusculanums Forlag 1998.
19 Seven days is the minimum number of days constituting imprisonment, Penal Code §33 (1). A number of criminal
offences also carry supplementary sentencing ranges either shortening or lengthening the main sentencing range under certain
circumstances. For a selected group of the above-mentioned property crimes, see §286 and §287.
20 Most significantly §237 (homicide; minimum 5 years imprisonment); §112 (homicide of head of state; minimum 6 years
imprisonment); §261, stk. 2 (deprivation of liberty with intent to economic gain or with severe consequences; minimum 1
year imprisonment).
21 Moreover, §74a carries the possibility of imposing a youth sanction (a combination of a period of incarceration and of
educational and a period of supervision).
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typical cases for when to impose imprisonment and when to impose other sanctions are presented.
One example is the Western High Court case described in TfK 2001.669 VLD holding that an incident of violence in which an offender landed clenched fist blows on the victim’s face on a public
street, causing two teeth to fall out, was punishable by 40 days immediate imprisonment. Another
example is the High Court case TfK 2000.543 ØLD holding that an offender convicted for simple
violence against her stepdaughter by hitting her several times in the behind with a flat hand was
sentenced to 30 days imprisonment, which was suspended considering her employment situation,
mitigating personal characteristics and the long time passed since the offence (1 year and a half).22
Fourth, investigation and prosecution are governed by an accusatorial principle. It is the prosecutor
who proposes a sanction and the sentence level to the court. In particular within the recent decade,
there are considerable efforts on behalf of the Director of Public Prosecutions, Denmark, to issue
general instructions to the regional and local prosecutors on how to process criminal cases and what
sentencing levels to pursue.23
Several strategies to limit the use of imprisonment have been pursued within this framework.
First, the main sentencing ranges have been lowered.24 Second, statutory sentencing criteria have
been altered.25 Third, legislative intentions to decrease sentencing levels have been communicated
in the comments to the Bills, instructing both prosecutors and judges of the due course.26 Fourth, and
most importantly, the legislator has introduced and expanded alternative sanctions to imprisonment
over several decades. Suspended imprisonment was introduced in 1905 (L 49). It was expanded significantly in 1930 (L 126, widening the area of application), 1961 (L 163, introduction of suspended
sentencing) and 2000 (L 230, alcohol abuse treatment program as new condition).27 Community
service was introduced nationally in 1992 (L 6) and its area of application was legally expanded in
2000 (L 230) to include cases of drunk driving. Characteristic for all these strategies is that they
involve legislative efforts, yet rely extensively on the discretionary will of sentencing practitioners
to carry out the legislative intentions.
To the list of significant strategies to limit the use of imprisonment must be added the recent
change in parole legislation and the introduction of electronically monitored home confinement as
22 See also TfK 2002.211 VLD (unprovoked violence. Thirty days suspended sentence, considering the interest of maintaining an employment with the armed forces).
23 Examples of instructions from the Director of Public Prosecutions, Denmark, are found in RA-2004-131-0002, Rigsadvokaten informerer Nr. 8/2004. Straffene i voldtægtssager og i sager om overtrædelse af straffelovens §222; RA 2005-1310003, Rigsadvokaten informerer nr 12/2005. Domspraksis i sager om besiddelse og udbredelse af børnepornografi. Reports
on the sentencing practice of the court are produced regularly. Examples include Straffene i voldssager efter ændringen af
straffelovens §§244 – 246. Juni 2005 (j.nr. 2004-120-0016) and Straffene i voldtægtssager efter ændringen af straffelovens
§216. Juni 2005 (J.nr. 2004-120-0014).
24 See, e.g. L 183 (1982), designed to relieve the pressure on the prison capacity. Folketingstidende 1981–82, tillæg A, sp.
4522–4523.
25 See, e.g. L 319 (1973) in which the aggravating sentencing criteria ‘prior criminal record’ was removed from the main
sentencing provision in §80, and the mitigating criteria ‘crimes of particular low penal value’ in §287 were replaced by
‘crimes of less punitive value’. The purpose of the changes was a general lowering of the sentencing level and in particular
an increased use of suspended prison sentences. Bill No. 193, 6 February 1973, General Comments, sec. 5.
26 For example, in the above L 319 (1973) the legislator in the comments to the bill stated that the changes had to be
implemented by the prosecutors and the judiciary. The prosecutors were requested to support the efforts by increasing their
use of conditional charge withdrawals and by changing their sentence claims practice. The judiciary was requested to followup on the intention in their sentencing practices.
27 See R ENTZMANN , W. & R EIMANN , J. (1994) Samfundstjeneste og ungdomskontrakter—og andre samfundssanktioner
og -foranstaltninger. København: Jurist- og Økonomforbundets Forlag and WANDALL, supra n. 6 at 34–35.
ACTUARIAL RISK ASSESSMENT
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an alternative to imprisonment.28 Unlike the above-mentioned strategies, these are implemented
administratively through the Department of Corrections. Also, it must be added that Denmark uses
the technique of ‘prison queuing’ to limit the pressure on actual prison populations.29
3.2
Limiting imprisonment and the diversion of the low-risk offender. The case of
the Commonwealth of Virginia
Virginia Statutes provide sentencing ranges for statutorily defined criminal offences.30 Each crime
is placed in a class one to six felony or one to four misdemeanour. For example, cheque fraud is
categorized as a class one misdemeanour, or as a class six felony if the ‘cheque, draft or order has a
represented value of $200 or more’. Sentencing ranges are defined for each of these classes of crimes.
In the event of a felony six cheque fraud, §18.2-10 (f) defines the sentencing range between 1 and 5
years.31 Generally applicable to these sentencing ranges, the statutes provide several unguided discretionary options of imposing alternative sanctions instead. Trial courts may suspend the imposition
of the sentence or the sentence itself, impose probation and modify a sentence.32 Defendants charged
with first offence may be placed on probation as a condition of discharge or dismissal.33 Moreover,
the sentencing court may sentence offenders to a local community-based probation programme when
they are convicted of a misdemeanour or a felony that is not a felony act of violence, and for which
the court imposes a sentence of 12 months or less.34 Beginning in 1995, the Virginia Criminal Sentencing Commission (VCSC) has promulgated numerical sentencing guidelines to guide courts in
the sentencing discretion under these provisions.
The guidelines guide the choice of imprisonment and the length of imprisonment in all felony
cases. In these cases, the court must review and consider the suitability of the applicable discretionary
sentencing guidelines.35 The guidelines are constructed as independent guidelines and worksheets
for each crime category. For example, for the above-mentioned category of fraud cases there are
four worksheets (A, B, C and D). Worksheet A must be completed in all cases. The worksheet gives
numerical scores to each case. If the offender scores 10 points or less, the judge shall continue
to worksheet B and if the offender scores more than 10 points, the judge shall continue to sheet
C. In worksheet A, one count of cheque fraud gives 1 point. Further points are added depending
on the presence of additional primary offence counts (0–1), additional offences (0–4), prior convictions/adjudications (0–5), prior felony property convictions/adjudications (1–5) and prior misdemeanour convictions/adjudications (1–3). Prior incarcerations/commitments add 3 points, prior
28 L 219, 31 March 2004 (expansion of early release practice); L 367, 24 May 2005 (electronically monitored home
confinement).
29 See Årsberetning 2004 for the Department of Corrections (www.kriminalforsorgen.dk) under the headline
‘årsberetninger’. ‘Prison queuing’ refers to the practice of the Department of Corrections to allow convicted offenders who
are not kept on in pre-trial custody after conviction, to await available prison space before summoning them to serve their
prison sentence.
30 VA St §18.2.
31 Or, in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months
and a fine of not more than $2.500, either or both.
32 VA St §19.2-303.
33 VA St §19.2-303-2.
34 VA St §19.2-303-3. The offender cannot be younger than 18 years of age or considered an adult at the time of conviction,
and must meet other eligibility criteria. §9.1-173.
35 VA St §19.2-298-01.
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revocations of parole/post-release, supervised probation or sentences under the Comprehensive Community Corrections Act adds 3 points, a prior juvenile record adds 1 point and 1 point is added if the
defendant was legally restrained at the time of offence. Worksheets B and C repeat this mechanism
with different point systems and different sentencing recommendations. In worksheet B, the offender
is recommended to probation/no incarceration if he scores 9 points or less, and to imprisonment
from 1 day to 6 months if he scores 10 points or more. Worksheet C involves all prison sentences
higher than 6 months. A table of recommended sentences provides a sentence range midpoint and
a sentence range for all total sentencing scores from 1 to 150 (total scores). For example, if the offender has a total score of 25 in worksheet C, the sentence range midpoint is 2 years and 1 month.
The range is between 1 year and 3 months and 2 years and 10 months. The guidelines are not mandatory, but the court is required to explain any departures in writing.
The ARAI is an addition to these sentencing guidelines. The intention is for the VCSC to develop
risk assessment instruments for all felony cases.36 As of this date, ARAIs have been developed for
three categories: cases of felony sexual offenders (from 1 July 2001), non-violent offenders in cases
of larceny, minor drug cases and fraud cases (from 1 July 2002),37 and ‘technical violators’ (from
1 July 2005). In non-violent offender cases, the instrument is used in just over 6000 cases yearly.38
The instrument is applied in all cases, in which the offender is not recommended to probation/no
incarceration, in which none of the prior recorded offences are violent and none of the offences at
sentencing are violent.39 The risk assessment instrument is constructed to divide offenders sentenced
to imprisonment to a low-risk category or to a high-risk category. Applying the worksheet D, sentencing judges assign risk points to each offender. A total of 38 points or less constitutes a low-risk
score and results in a recommendation of alternative sanctions, while a total of 39 points or more
constitutes a high-risk score and results in a recommendation of imprisonment.
A key matter of this paper is how these points are assigned and the selected factors applied. It is
therefore necessary to look closer at the individual points—or scores—of the worksheet. Worksheet
D is reprinted below in Fig. 1. It shows that risk scores are divided into six sections, representing a
wide range of case characteristics. The first section assigns points according to the primary offence
type: 3 points for drug and fraud crime and 11 points for larceny. The second section assigns 5 points
if there are additional offences. The third section assigns risk points depending on the personal and
social circumstances of the offender: 8 points are assigned if the offender is male, 0 to 13 points are
assigned depending on the age of the offender, 9 points are assigned if the offender is not regularly
employed40 and 6 points are assigned if the offender is ‘at least 26 years of age and never married’.
The fourth section adds 6 points if the offender prior to the instant offences had been arrested or
under confinement during the past 18 months. The fifth section assigns 3–9 points depending on the
degree of prior felony convictions and adjudications. The sixth section adds 3–9 points depending
on the number of prior adult incarcerations. Summing up the total score leaves the sentencing court
with a recommended sentence to imprisonment or to an alternative sanction.
36 VA St §17.1-803 No. 5.
37 Drug cases Category I/II. Does not include any cases in which the case involves the sale, distribution or possession
with intent, etc. of cocaine of a combined quantity of 28.35 g (1 ounce) or more. See VA Sentencing guidelines 2005,
Drug/Schedule I/II, page 11, sec. 1.
38 V IRGINIA C RIMINAL S ENTENCING C OMMISSION . Annual Report (2003) and (2004).
39 See, e.g. Virginia Sentencing guidelines 2005, Fraud, page 11, sec. 1.
40 This includes an offender who ‘during the past two years from the date of arrest . . . made more than 2 changes in
employment or was not employed at least 75 % of the time’. Sentencing Guidelines Manual, Fraud, sec. D, 10 (2005).
ACTUARIAL RISK ASSESSMENT
FIG. 1. Nonviolent risk assessment worksheet. Source: Virginia Criminal Sentencing Commission.
183
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R. H. WANDALL
FIG. 2. Comparison of original risk assessment model and validation models. Source: Annual Report, Virginia Criminal
Sentencing Commission, 2001, 58.
The numbers of points ascribed to the individual factors in the worksheet D represent the relative
statistical contributions to the overall prediction of the reconviction of an offender within a 3-year
period. The basis for this is a statistical analysis of actual sentencing and reconviction in the three
relevant crime categories in Virginia. Many of the statistical premises for the choice of final model
by the VCSC are not available and only accounted for briefly in the VCSC annual reports as basis
for these choices by the VCSC.41 An original risk assessment model was developed already in the
1990s and later tested in six county court jurisdictions in Virginia. That test led to recommendations
of a revision of the original model. The current worksheet is the result of a further revalidation of
the original model, tested on sentencing data from 1996 on a sample of 668 cases. The revalidation
tested the statistical predictive relevance and power of the 11 factors included also in the original
model.42 Like the original model, the revalidation model relied upon survival analysis and multiple
logistic regression analysis. The dependent variable was any felony conviction in a 3-year follow-up
period. The analysis resulted in three useful models. One of these, relying on survival analysis, was
less powerful in predicting recidivism, predicting accurately only 72.5% compared to 76.5% and
75.7% of the two other models. The poorer model was rejected.43 The primary difference between
the remaining models was the inclusion of particular demographic variables (age, never married by
age 26, not regularly employed). This is illustrated in Fig. 2. Deciding between the two models was a
policy decision for the sentencing commission—weighing the value of predicting recidivists among
the offenders recommended for alternative sanctions (12.4% over 14.5%) over the best model for
overall prediction of reconviction. See further the discussion in Section 4.2.2.
41 See generally O STROM , B. J., K LEIMAN , M., C HEESMAN , F., H ANSEN , R. M. & K AUDE , N. B. (2002) Offender
Risk Assessment in Virginia. A Three-Stage Evaluation. The National Center for State Courts and V IRGINIA C RIMINAL
S ENTENCING C OMMISSION (2001) Annual Report.
42 See appendix D in O STROM et al. supra n. 41.
43 See V IRGINIA C RIMINAL S ENTENCING C OMMISSION , supra n. 41 at figure 51.
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Like the general guidelines, the risk assessment model is not binding but merely advisory to the
sentencing court. Failure to follow the recommendations of the guidelines or risk assessments is not
reviewable on appeal.44 Moreover, offenders do not have a right to be sentenced according to the
guidelines. However, the sentencing court is obligated to provide written reasons if departing from
the recommended sentence.45
4. Actuarial risk assessment and the recognition of the individual offender
The most significant issues that have been discussed in the connection with the rising use of actuarial
risk assessment in criminal sentencing include whether actuarial risk assessment is ‘better’ than
clinical risk assessments in predicting future crime and the potential problems, among others of
discrimination, that arise from introducing risk factors such as age, gender, employment status and
other personal and social circumstances.46 The first issue goes to the efficiency of predicting future
dangerousness or risk of reoffending and the second to how the risk assessment affects different
demographic groups of offenders. These are both issues of enormous importance. Yet, they leave
out of sight that the introduction of actuarial technology changes the character of the sentencing
decision-making with consequences for the recognition of the individual offender as a subject of
the penal analysis. In the following, I want to address that issue and focus on three dimensions of
the sentencing frameworks: the distance between the framework and the individual offender, the
technology of deciding to imprison or not and the ideology of the frameworks.
4.1
Risk assessment at a distance
Formalizing sentencing decision-making pushes sentencing away from the individual offender in the
direction of the formalizing authority, whether it is by way of mandatory sentencing rules, numerical
guidelines or judicial guidelines. Both the Danish and the Virginian framework of diverting offenders
to alternative sanctions accordingly create some distance between the offender and the formal rules.
However, they do it in quite different ways.
In Denmark, the framework is significantly constructed as a balancing act between the legislator and the judiciary. The legislator stipulates sentencing ranges and guides sentencing courts with
relevant sentencing criteria. The judiciary guides sentencing by way of laying down standards for
relevant sentencing criteria and for when to impose imprisonment and when to impose alternative
sanctions. The guidance follows from appealed cases in typical offence categories. In less frequently
appealed offence categories, sentencing courts are left with only the general statutory criteria. The
guidance of and balance between legislator and appellate courts are not made to stand alone, but rely
heavily on the concrete application and interpretation of the sentencing court. For example, deciding
whether a prison sentencing should be suspended, the court shall evaluate if a prison sentence is
‘unnecessary’, and deciding on the use of community service, the sentencing court shall decide if
suspension of the sentence is ‘insufficient’.
44 See Brooks v. Commonwealth, 28 January 2004 (Record no. 2540-02-3) and see VA St §19.2-298-01 (F).
45 VA St §19.2-298-01 (B).
46 See, e.g. M ONAHAN , J. (2006) A jurisprudence of risk assessment: forecasting harm among prisoners, predators, and
patients. Virginia Law Review, 92, 391; T ONRY, M. (2004) Thinking about Crime. Sense and Sensibility in American Penal
Culture. New York: Oxford University Press, pp. 150–156.
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The VCSC brings together these structuring authorities. Both in its numerical sentencing
guidelines and in its ARAIs it takes account of relevant sentencing information and articulates
recommendable sentences. Appellate courts have little review power and do not constitute a counterbalancing authority.47 The individual sentencing courts are not part of the structuring authorities.
Indeed, sentencing courts may divert from the guidelines and from the actuarial risk assessment, but
neither the numerical guidelines nor the actuarial risk assessment incorporate sentencing courts as
interpreting authorities. In essence, the sentencing courts are not part of the structuring of sentencing, but are subjected to its technical rationality. A sentencing court has only to decide whether it
will follow the risk assessment or not. In this way, the Virginia system inserts a technical distance
between sentencing and the individual offender. Beyond the fact that individual offenders are subject
to the framework of the actuarial risk assessment, it is the actuarial risk assessment table that defines
the input and the output of the sanction choice and leaves it to the trial court to use the framework, whereas in Denmark the framework is completed only by the interpretive operations of the
sentencing courts. In Virginia, the assessment of the individual offender is defined already in the
table of the risk assessment scheme.
4.2
The technology of risk assessment
Let me begin by presenting two case examples of decisions to divert offenders to an alternative to
imprisonment:
In the Danish case U 1998.541 Ø, a person T was convicted of fraud for applying for and receiving an excess of DKK 349,706 (EUR 47,000) in unemployment benefits, omitting to declare that
he did have employment. The county court sentenced him to 8 months immediate imprisonment.
The Eastern High Court on appeal overturned the county court’s sentence and sentenced T to 10
months imprisonment, suspended on condition of 240 h of community service. In the premises and
the conclusion of the High Court’s ruling, it is stated:
T has explained that he is still a work supervisor at [company], in that he in particular
is engaged in teaching the employed. He earns around DKK 22,000 monthly. T has a
pay-off agreement with the unemployment office of DKK 1,500 a month, which he has
been paying continuously since January 1997. By an immediate imprisonment sentence
he will loose his job and the opportunity to pay back the court ordered compensation.
The punishment shall, according to five voting judges, be increased to 10 months imprisonment.
These voting judges state: When considering in particular the good personal circumstances of T, hereunder his age [fifty years of age], these judges finds it proper to suspend
the prison sentence on condition of community service as decided below, notwithstanding the amount of money involved.
One of the members of the court finds, considering the characteristics of the committed
crime, hereunder the endurance and size of it, no reason to suspend the prison sentence,
neither without nor with the condition of community service.
47 Organizationally, the commission is placed under the Supreme Court of Virginia. Seven of the 17 members are of the
judiciary, and the Chief Justice of the Supreme Court appoints the Chairman of the Commission. VA St §17.1-802 (A).
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In a decision entered in the Commonwealth of Virginia on 9 November 2005, a female offender
was convicted of grand larceny of USD 700 (EUR 543). The defendant entered a guilty plea and the
court sentenced the defendant in accordance with the discretionary guidelines.
In larceny guideline, section A, the offender scored 2 points for the primary offence, 1 point for
prior convictions/adjudications, 3 points for nine or more prior misdemeanour convictions/adjudications, 5 points for prior incarcerations/commitments and 1 point for being legally restrained at the
time of offence. The total of 12 points brought the case within the limits of section B of the guidelines. Under that section, the offender scored a total of 19 points, which made the offender eligible
for imprisonment and activated the ARAI in section D.
In section D, the offender scored 11 points because the offence is larceny. There were no additional offences (+0), the offender was female (+0), was older than 46 years (+0), was regularly
employed (+0), but was at least 26 years of age and never married (+6 points). The offender had
been arrested or confined within the last 18 months (+6), had no prior felony convictions or adjudications (+0), but had been incarcerated as an adult for less than three periods (+3). The total score of
26 points was less than the threshold of 38 and the offender was not recommended for imprisonment.
The judge followed the recommendation.
The offender was sentenced to 2 years of imprisonment, all of which, but one day, was suspended
upon the conditions of good behaviour for 3 years, that the defendant was placed on supervised
probation upon release for 3 years, that the convicted person bears the costs of the case and that the
convicted person pays restitution.
Clearly, these examples represent different worlds of sentencing levels, contrasting a 10-month
prison term for EUR 47,000 fraud, against a 2-year prison term for EUR 543 grand larceny. In
and of itself, the drastic differences between these two jurisdictions in sentencing levels as well
as the drastic pressures on and cost of prison capacity constitute different premises for diverting
offenders to alternatives to imprisonment. Nevertheless, the examples show that the courts in the
two systems share an interest in assessing the complete case, including the profile of the offender,
to decide on sentencing the offender to imprisonment or not. In both cases, the court reached the
conclusion to divert the offender to an alternative sanction. At the same time, and perhaps echoing
the difference in scope of the challenge of diversion, the methods of reaching these conclusions
involve different techniques bearing significantly on the degree of individualization in the decisionmaking.48 First, the Danish sentencing framework uses narrative techniques, whereas the Virginian
guidelines use numerical standards. Second, the Danish sentencing framework expects sentencing
courts to consider specific sentencing factors and their relevance to the case at hand, whereas the
Virginia risk assessment instrument expects courts to rely on calculated combination of predefined
scores attributed to offence and offender characteristics.
4.2.1 Numbers or words. Using numbers instead of words to guide and standardize decisionmaking has become more widespread, accepted and sophisticated during the last four decades. Examples include numerical sentencing guidelines, the English Offender Assessment System (OAsys),
and the Virginian ARAIs. Analytically, we may define a numerical technique as one constructing
sentencing formally and mathematically and presenting sentencing outcomes as a logical product
48 See comparatively TAIT, D. (1998) Judges and jukeboxes: sentencing information systems in the courtroom. International Journal of Law & Information Technology, 6, 167; F RANKO A AS , K. (2005) Sentencing in the Age of Information.
From Faust to Macintosh. London: Glasshouse Press, p. 81.
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of axiomatic determinants based on general rules of calculation.49 In contrast, narrative sentencing
structures rely on words and present sentencing outcomes as the result of an interpretative application of those words on the concrete case before the court. Key examples include the Danish, Finnish
and Swedish statutory sentencing principles and several of the recent English Sentencing Guidelines. Words provide a framework for sentencing consideration, whereas numbers provide sentencing
determinants.
The general sentencing literature has touched upon the implications of using numbers rather than
words. For example, it has been emphasized that the numerical approach, compared to narrative
frameworks, increases the ability to standardize sentencing, though at the price of oversimplifying
the particularities of cases, and sentences different cases similarly.50 It has been emphasized that
numerical guidance provides sentencing answers to judges, while words are better to provide the
reasoning which produces these answers.51 Furthermore, it has been argued that numerical guidance
is more susceptible to later manipulation.52
The use of numbers indeed does create a greater degree of overall consistency as it is less flexible and simplifies decision-making over sentencing.53 It does make sentencing more susceptible
to later (political) manipulation. These implications arise from the generalizing effect of numerical
techniques. Yet, the use of numbers does more than generalize; it creates a different condition for
how individual offenders are considered under the framework of sentencing.
In the Danish example, the decision whether to imprison or not involves the concrete evaluation
of the criminal offence, the biographical information of the offender, his prospects of maintaining his
employment and of paying back the amount defrauded in the trial courts consideration of whether
imprisonment is necessary and if he is eligible to community service. Statutory sentencing limits
delimit the choice of sanction, and statutory sentencing criteria guide the sentencing courts in their
evaluation. Furthermore, appellate court practice provides some guidance as to what criteria to apply,
when to impose imprisonment and when to use alternative sanctions. Yet, the framework does not
provide an answer to the penal analysis. The case is presented to the court, expecting it to derive its
own understanding of the case and the questions involved in imprisoning or not.
The conditions for representing the individual offender in the ARAI in the Commonwealth of
Virginia are decisively different. The instrument relies on an ability to grasp and resolve each question of incarceration through the numerical values assigned to a case in the risk assessment worksheet: The individual case is assessed on its fit to these statistical categories and ascribed relevance
depending on the numerical values attributed to the categories. The biographical information of the
offender is pre-categorized and avoids investing a purpose in the sentencing decision other than categorizing. Offenders are not young or old, but below 30, 40, 46 or above. Defendants do not have
prospects of employment or continued education, but have regularly been employed for the past 2
years or not. The individual offender is evaluated to his fit to these categories. Instead of letting
the court consider how each piece of information should bear on the choice of sanction, the ARAI
49 See, e.g. T RIBE , L. (1971) Trial by mathematics: precision and ritual in the legal process. Harvard Law Review, 84,
1329.
50 VON H IRSCH , A. (1987) Guidance by numbers or words? Numerical versus narrative guidelines for sentencing. Sentencing Reform. Guidance or Guidelines? (M. Wasik & K. Pease eds). Manchester: Manchester University Press, p. 46.
See also P EASE , K. (1987) Sentencing and measurement: some analogies from psychology. Sentencing Reform. Guidance
or Guidelines?, supra at 127.
51 WASIK , M. (2003) Sentencing guidelines: past, present, and future. Current Legal Problems, 56, 239.
52 Ibid.
53 This not considering the outsourcing of discretion to prosecutors and to other settings of informal practices.
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assigns numerical points, the meaning of which lies only in their added score of above or below 38.
Lack of regular employment does not bear on the decision depending on the extend of it, whose fault
it is or what the prospects are, but only by assigning 9 points to a total risk score.54 The sum of the
points provides sentencing courts with a recommendation of imprisonment or not. The ARAI does
not ask why the offender committed the crime, does not ask the culpability of the crime or his future
prospects. On the matter of the relationship between ‘risk assessment’ and ‘needs assessment’, the
Virginia evaluation report from 2002 illustratively states:
The argument is about the role of individual discretion in assessing offenders. Statistical
risk assessment applies a standard set of criteria in a uniform way to all offenders. The
strength of this approach is that all offenders are measured with the same yardstick,
and the groups identified as ‘high risk’ tend to recidivate at higher rates than the groups
identified as ‘low risk.’ This approach measures risk in the aggregate, and does not
produce an individualized prediction for a particular offender.55
The very idea of the ARAI is that it standardizes the assessment of offenders by creating a uniform framework of evaluation. However, the consequence is that the consideration of individual
offenders is limited to the numerical values associated to the categories mentioned in the risk assessment instrument and the total numerical score. Offenders are not presented with a personal history
and are not recognized as having a personal future. The risk assessment instrument does not seek
to and indeed does not attempt to understand the offender and his/her crime and it does not seek or
attempt to interpret the case. It merely represents a framework to act on the case and a selection of
its merits.56 The use of numerical scores and organization of the sanction choice by way of scoring
tables imposes a power on sentencing decision-making that needs no narrative of the offender or the
case at hand, it needs no explanation or prediction of the individual case and it needs only that the
case is made to fit the mechanism.57
4.2.2 Statistical aggregates. Under both the Virginian and the Danish frameworks of choosing
between imprisonment and alternative sanctions, the court is expected to analyze the future criminal
risk of the offender. Under the framework in Denmark, the sentencing court is expected to consider
the employment situation, educational situation, the age, as well as the family situation of the offender. The court may consider how each factor bears on sentencing. For example, the court may
consider that an offender can look forward to an employment opportunity in the near future, the
offender will be able to complete an educational program soon or he has planned to begin one. The
court may consider the particular maturity of an offender or may consider the futility of a current
employment position. In brief, the court is expected to evaluate the character and relevance of any
of the circumstances of the case and the personal and social characteristics of the offender.
54 See Fig. 1.
55 O STROM , B. J., NATIONAL I NSTITUTE OF J USTICE , NATIONAL C ENTER FOR S TATE C OURTS , V IRGINIA C RIMINAL
S ENTENCING C OMMISSION et al. (2002) Offender Risk Assessment in Virginia. Williamsburg: National Center for State
Courts, p. 45.
56 A AS, supra n. 48, correspondingly argues that using numerical categories, tables and databases changes the way in which
we describe and represent the individual offender in sentencing.
57 Similarly, but from a philosophical standpoint, Antony Duff mounted a critique of numerical sentencing guidelines,
paralleling them with a Benthemian reliance on categorical thinking, and contrasting numerical guidelines to the practical
reasoning of Aristotle, representing the inevitable demand to interpret the concrete situation and case. D UFF , A. (2005)
Guidance and guidelines. Columbia Law Review, 105, 1162. See also WANDALL, supra n. 17.
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The ARAI operates in a decisively different manner. Besides presenting the evaluation of the defendant future risk in numerical terms, it is not any single risk factor that makes a difference; it is the
combination of factors that is relevant and produces a numerical risk estimate and a recommendation for imprisonment or not. For example, including the variable “offender not regularly employed”
as a risk factor in the risk assessment is not explained by the employment’s socially stabilizing effects, but is explained by that factor’s statistical contribution to the overall model’s of predicting risk.
Richard P. Kern and Meredith Farrar-Owens, both from the VCSC, in a recent article illustrated the
point well by describing the meaning of the actuarial risk assessment:
. . . developing profiles or composites based on observation of overall group outcomes.
Groups are defined by having a number of factors in common that are statistically relevant to predicting repeat offending. Individual factors by themselves do not place an
offender in a high or low-risk group. It is the presence or absence of certain combinations of factors that determine the assignment of risk for an offender.58
The risk analysis is so to speak not concerned with the relevance of any single factor, but only
in the contribution of individual factors to the overall predictive power of the model. The history of
the risk assessment instrument in Virginia serves well to illustrate both the reach and the limitations
of this claim. Validating the final model of risk assessment, the Commission compared the original
pilot model with two newer models. The three models are displayed in the figure below.
The original model was used in the pilot study. It included factors related to the gender, age,
employment status as well as marital status of the offender. When originally developed, it also included race as a significant determinant. However, this was excluded.59 The Validation Models 1
and 2 were developed during the validation process. Model 2 was developed as an alternative model
to Model 1 as a result of the concern of including factors such as age, gender, marital status and
employment. Respondents interviewed during the pilot study had voiced concern with the inclusion
of demographic variables in the model.60 The Commission was accordingly faced with the question
of including these factors or not in a final risk assessment instrument. How did it resolve the matter? One possibility would have been to discuss the general criminological relevance of each of the
factors or to consider the legitimacy of including each individual factor in sentencing. The general
concern voiced and the act of comparing the models can be argued to represent some level of concern
for legitimacy. However, instead of discussing the relevancy and legitimacy of the individual factors,
the Commission tested overall models with and without the suspect factors, to compare their statistical strengths and weaknesses. The ‘gender’ factor could not be removed ‘without compromising the
integrity of the model’.61 As a consequence, the gender factor was left in the final model attributing
8 points in the risk assessment to male offenders. The situation was less clear in the matter of the
58 K ERN , R. P. & FARRAR -OWENS , M. (2004) Sentencing guidelines with integrated offender risk assessment. Federal
Sentencing Reporter, 16, 165. The evaluation report from 2002 responded to its rhetorical question of what is ‘statistical risk
assessment’ with the following statement: ‘Actuarial (or ‘statistical’) risk assessment develops profiles, or composites, based
on overall group outcomes. A group is defined by a number of shared, statistically relevant, factors that predict the likelihood
of repeat offending.’ O STROM et al., supra n. 41 at 23.
59 V IRGINIA C RIMINAL S ENTENCING C OMMISSION (2001) Annual Report 49. The stated reason was that it could function as a proxy for socio-economic factors. Considering that it was later decided to include a number of socio-economic
factors in the risk assessment instrument, there is some contradiction in the exclusion and inclusion of factors in the final
model.
60 Ibid. at 58; O STROM , supra n. 9.
61 V IRGINIA C RIMINAL S ENTENCING C OMMISSION , supra n. 41.
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remaining factors—‘age’, ‘never been married by age of 26’, ‘not regularly employed’. On the one
hand, the model excluding the demographic factors (Validation Model 2) performed well in terms of
predicting non-recidivists with an accuracy of 76.5% compared to 75.7% of the model including the
factors (Validation Model 1). However, the commission continued:
While Model 2 does a slightly better job at predicting non-recidivists, another comparison is the recidivism rate of those recommended for alternative sanctions. This is of
particular concern since the Commission was instructed by the General Assembly to
proceed with “due regard for public safety needs.” For this test, the recidivism rate of
offenders who would be recommended for alternative sanction is observed. Model 1
results in a 12.4% recidivism rate for offenders who are recommended for alternative
sanctions. On the other hand, Model 2 results in a 14.5% recidivism rate for offenders
who are recommended for alternative sanctions. Based on recidivism rates of those recommended for alternative sanctions, Model 1 would be the best choice. While each test
of the strengths and weaknesses of non-violent risk assessment models is important, the
Commission weighed the importance of one to another in order to make a decision that
is consistent with the objective of nonviolent risk assessment and the General Assembly
directive.62
In the words of the Commission, these are the premises for its decision to implement Model 1,
containing the demographic factors. Accordingly, points are attributed the risk assessment depending
on one’s age (maximum of 13 points for offenders younger than 30 years), 9 points are added for
offenders not regularly employed and 6 points are added for offenders fulfilling the constructed
variable ‘offender at least 26 years of age and never married’. This course of events does show that
the inclusion of factors is not entirely restricted to aggregate predictive effects. Race was excluded as
a factor already in the pilot study.63 Furthermore, it shows that the inclusion of demographic factors
was considered as suspect by the judicial participants. However, most importantly, the course of
events shows that the anxiety of including demographic factors was not sanctioned by the sentencing
commission in the final model. The anxiety was overcome by aggregate statistical arguments, and
the Commission resolved the matter not in terms of the legitimacy of individual factors, but in the
language of aggregate statistical effects on recidivism.
In and of itself, this shows how the actuarial technique in the case of Virginia intensifies the
distance between the individual case and the decision whether to incarcerate or not. Not only are
individual cases reconstructed in numerical terms but also their characteristics are not of any interest
in themselves. Only combinations of them, the premises of which are hidden from the decisionmakers, are relevant.
4.3 Ideology: managing aggregates of risk categories
Both the Danish and the Virginian penal systems are driven by a goal of restraining the use of imprisonment. Yet, as the technologies of achieving this goal, so are the underlying ideologies legitimizing
62 Ibid. at 59.
63 At that occasion ‘VCSC research staff removed the influence of race from the risk assessment model to avoid biasing the
11 remaining factors on the instrument’, O STROM et al., supra n. 41 at 27–28. The same procedure has not been described
for the later revalidated model, which also excludes race as a relevant factor and includes a number of demographic variables.
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the respective enterprises, characterized by different degrees of interest in the individual offender as
a penal subject.
The penal system in Denmark has been driven by goals of restraining the use of imprisonment for
more than a century; both in general and for special groups of offenders. Parallel to other European
countries, Denmark has experienced a toughening of sentencing policy during the last decades and
the prison capacity has been under significant pressure. During the same time, an unprecedented expansion of alternative measures to imprisonment have been implemented.64 The suspended sentence
was introduced already in 1905, expanded in 1930 and 1961, also introducing suspended sentencing,
and expanded in 2000, also introducing treatment programs for alcoholism. Community service was
implemented nationwide in 1992 and was significantly expanded in 2000. Early parole release was
expanded in 2004. Most recently, electronically monitored home confinement was introduced in
2005 as an alternative means of serving prison sentences for drunk drivers. It has recently been
expanded in April 2006.
Through these and other initiatives to restrain the use of imprisonment, the overall use of imprisonment and the economic and societal consequences of the sizes of a prison population have been
voiced and are visible on a level of policy making.65 The ministry of Justice and the Department of
Corrections do employ aggregate measures of prison capacity in their work,66 and the last 3 years
have witnessed a high rate of political activity for dealing with the restraints on prison capacity.67
Yet, such aggregate concerns have not been endorsed as single overarching aims of restraining the
use of imprisonment. Bills introducing alternative sanctions and expansions thereof have been carried by reference to prison’s limited rehabilitative potentials, to the interest of not disrupting the
social and personal lives of offenders, and of not imprisoning offenders whose social stability would
work better to keep them from reoffending.68 Though recognized and visible, an aggregate concern for prison capacity and necessary resource constraints does not create a sufficient basis for the
techniques of diverting offenders from sentences to imprisonment.
In the Commonwealth of Virginia, the risk assessment instrument is carried significantly by
the aim of restraining a designated proportion of the overall use of imprisonment. The background
64 As to the early developments, see WAABEN , K. (1948) Betingede Straffedomme. En Kritisk Vurdering af Dansk Rets
Regler. København: Nordisk Forlag. See also supra n. 13.
65 See, e.g. Betænkning nr. 806, Alternativer til frihedsstraf—et debatoplæg, 11 (København 1977); Bill No. 183 of 1982
(decrease of sentencing levels), Folketingstidende 1981–82, tillæg A, sp. 4522-23; Bill No. 122 of 2003 (early parole release), Folketingstidende 2003–2004, Tillæg A, 4433; Bill No. L 12, 23 February 2005 (introducing electronically monitored
home confinement), Folketingstidende, Tillæg A 426ff, sec. 2.3. and tillæg A 472; Straffelovrådet, Betænkning nr. 1099.
Straffelovrådets betænkning om strafferammer. Delbetænkning I om sanktionsspørgsmål (1987) and Betænkning nr. 1424
om straffastsættelse og strafferammer I 130 (2002); Justitsministeriet og Finansministeriet, Analyse af Kriminalforsorgens
fremtidige kapacitetsbehov (2002); Britta Kyvsgaard, Justitsministeriet, Strafniveau, strafskærpelser og kapacitet (2003).
66 The government agreement for the Department of Corrections 2004–2007 sets the goal to 92% of maximum capacity.
67 See, e.g. The Minister of Justice’s answers to Question No. 158 of the Parliamentary Judicial Council, 5 February 2004
(Alm. Del bilag 469), in which she mentions the government’s efforts to meet capacity demands, hereunder the abovementioned Bill No. 122 (early release).
68 The most prominent examples include Bill No. 37, 1 February 1961 (expansion of suspended sentences and introduction
of suspension of sentencing and combination sanctions), Folketingstidende 1960/61, tillæg A, 653; Bill No. 84, 30 October 1991 (community service), Folketingstidende, tillæg A, 1829; Bill No. 41, 13 October 1999, page 6, 19 (expansion of
community service and introduction of treatment programs as conditions for suspended sentences in cases of drunk driving),
Folketingstidende 1999–2000, tillæg A, 1125 and tillæg A, 1163; Bill No. 122, 17 December 2003 (Early parole release),
Folketingstidende 2003–2004, tillæg A, 4433 and tillæg A, 4453; Bill No L 12, 23 February 2005, Folketingstidende, tillæg A,
426ff, sec. 2.3. (introducing electronically monitored home confinement); Bill No 86, 30 November 2005, Folketingstidende
2005–2006, tillæg A, 2578 and tillæg A, 2596.
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for the risk assessment instrument is found in the law and order reforms of 1995. Responding to
discontent with the leniency of liberal parole policies as expressed in public opinion polls,69 the
newly elected Governor Allen in 1994 took an initiative to abolish parole and implement a system of
‘truth-in-sentencing’, and to increase prison sentences for violent offenders.70 The reform package
went into effect by January 1995. With the reform, offenders sentenced to prison had to serve 85% of
their time, earning a maximum of 15% good-time. Sentencing ranges for violent and repeat offenders
were increased. The increases varied from 200% to 600%. Offenders’ prior criminal records were
expanded so to include also juvenile adjudications of delinquency.71 The backbone of the reform was
to increase sentences for violent offenders in particular, and to ensure consistency between sentence
and the serving of the sentence.
Not surprisingly, this initiative to drive upwards the sentencing levels motivated a political fear
of the impact of the reform on the size of prison population and on the related financial costs.72 In
the sentencing reform that followed the General Assembly adopted the rule that all proposed sentencing legislation in the state must be accompanied by a ‘Commission Prison Impact Statement’.73
The VCSC, established in the reform package, was commissioned to have correctional capacity
and resource constraints as an important concern.74 It is on this background that a strategy to limit
imprisonment for non-violent offenders of minimum risk to the public safety was formulated. The
General Assembly directed the VCSC to develop and use a risk assessment instrument in all felony
cases. The primary focus was ‘whether the use of intermediate sanctions, in lieu of traditional incarceration, effectively protect public safety and, if so, whether alternative sanction programs are cost
effective’.75 Accordingly, the General Assembly stipulated that the VCSC shall:
...
5. Develop an offender risk assessment instrument for use in all felony cases, based on
a study of Virginia felons, that will be predictive of the relative risk that a felon will
become a threat to public safety.
6. Apply the risk assessment instrument to offenders convicted of any felony that is not
specified in (i) subdivision 1, 2 or 3 of subsection A of §17-237 or (ii) subsection C
of §17-237 under the discretionary sentencing guidelines, and shall determine, on the
basis of such assessment and with due regard for public safety needs, the feasibility
of achieving the goal of placing twenty-five percent of such offenders in one of the
alternative sanctions listed in subsection 4.
. . . 76
The focus on public safety and correctional costs reappears in all reports on the risk assessment
instrument since 1994. For example, in Recommendation No. 3 of the Commission’s 2001 annual
69 O STROM , supra n. 9 at 17 (with further references).
70 Ibid. at 18; K ERN , R. P. (1995) Sentence reform in Virginia. Federal Sentencing Reporter, 8, 84.
71 Moreover, sentences of 6 months or less rather than 24 months or less were to be received by the local jails. O STROM ,
supra n. 9 at 37.
72 O STROM , supra n. 9 at 35.
73 Ibid.
74 VA St §17.1-801; O STROM et al., supra n. 41 at 9.
75 Ostrom et al., supra n. 41 at 9.
76 VA St §17.235 (1995). See also VA St §17.1-803 (2005).
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R. H. WANDALL
report, the Commission writes:
This mandate was made in conjunction with other changes in the Commonwealth’s
sentencing structure that were designed to substantially increase the amount of time
served in prison by offenders convicted of violent crimes and offenders with a record
of prior violent offenses. The combined plan would reserve expensive prison beds for
violent and relatively high-risk offenders, without jeopardizing public safety.
...
The NCSC evaluation was helpful to the Commission in confirming that the pilot program has been successful and that the fiscal benefits of the program are consistent with
the General Assembly’s goals. According to the NCSC, the pilot program has had a net
fiscal benefit of $1.5 million (Figure 73). Furthermore, it is estimated that, had the risk
assessment instrument been instituted statewide during 2000, the net benefit would have
ranged from $3.7 to $4.5 million for that year. The NCSC evaluation confirmed the cost
saving component of the nonviolent risk assessment program.77
The Commission concluded in the following way on the matter of risk assessment for non-violent
offenders:
In conclusion, the Commission found that by identifying low-risk nonviolent offenders
through the use of risk assessment, the Commonwealth is in the position to reserve
expensive prison beds for violent offenders while minimizing the risk to public safety, in
a manner that is consistent with the General Assembly’s mandate to the Commission.78
The focus on aggregate distribution is most clearly articulated by the goal of placing 25% of the
relevant offenders in alternative sanctions. It is this goal that was instructive of the threshold between
high-risk offenders and low-risk offenders.79 This focus on the aggregate goal to be diverted from
sentences to imprisonment leaves the efforts to control prison population through sentencing reforms
in Denmark behind in managerial terms. Yet, it also underlines that the Virginia risk assessment
instrument is not intended as a guide to rehabilitative alternative sanctions for individual offenders
or for sparing groups of offenders from the damaging effects of imprisonment. The instrument is
meant to control the overall number of people imprisoned, the costs thereof and the criminal risks
that the public is exposed to. Unlike in the example of Denmark, the ideology of this strategy to limit
imprisonment has no sight of the individual offender and his personality. The percentage and cut
rate do not correspond to particular offenders or alternative sanctions. Instead, it is relative, intended
to control the aggregate allocation of offenders sentenced to imprisonment. Actually, it would be
counter-ideological for the Virginia model to assert ideological interest in the individual case. This
point is well illustrated in the evaluation report from 2002:
Distinguishing between risk and need is important for developing and implementing any
offender assessment and screening tool. The design of the current evaluation reflects the
fact that the VCSC risk assessment does not gauge the needs of individual offenders,
77 V IRGINIA C RIMINAL S ENTENCING C OMMISSION , supra n. 41 at 78.
78 Ibid.
79 O STROM et al., supra n. 41 at 29–30.
ACTUARIAL RISK ASSESSMENT
195
or recommend a specific alternative punishment. The purpose of the VCSC instrument
is to assess the offender’s risk to public safety. Needs assessment, on the other hand,
identify an offender’s needs and matches the offender to programs designed to address
those needs. [Italics in original]80
5. Discretionary risk assessment and individualization
What I have proposed in the foregoing sections is that, in comparison with the framework of diverting offenders to alternative sanctions in Denmark, the ARAI in Virginia stands out by moving
the sentencing strategy of limiting imprisonment towards an aggregation and dehumanization of sentencing. The actuarial instrument inserts a noticeable distance between sentencing and the individual
offender, it employs a technique which takes aggregates rather than individual persons as subjects of
analysis and it is carried by an ideology that targets public safety and correctional resources rather
than individual prevention or culpability. Undoubtedly, like the introduction of alternatives to imprisonment in Denmark, the insertion of actuarial risk assessment pursues a goal of reducing the
overall amount of imprisonment. Yet, by framing the selection of offenders to be sentenced to imprisonment, respectively, diverted to alternative sanctions, through the technology of actuarial risk
assessment, the sanction choice looses sight of the offender as an individual penal subject, be it for
individual prevention or desert. The sanction choice rather sees offenders as numerical objects in the
overall balance of public safety and resource constraints.
This observation is consistent with the general proposition that a shift to actuarial technologies
brings with it a strong degree of aggregation and a limitation of the interest in the individual offender
as a penal subject.81 In agreement with Simon and Feeley, I take the Virginia guidelines on their face
value as indicators of such a discursive shift in sentencing. The Virginia risk assessment instrument
is arguably the best example of this discoursive shift. Not surprisingly, Simon and Feeley added
the case of Virginia to their second edition of their contribution to the edited book Punishment and
Social Control.82 However, the framework of actuarial risk assessment does not stand in isolation.
Like the sentencing guidelines in general, the risk assessment is discretionary and not binding on
the sentencing court. Provided the court gives reasons for its action, it may depart from the risk
assessment. As such, there is space for other and more concrete and substantive considerations when
deciding to imprison or to divert to an alternative sanction.
The Court of Appeal in Virginia has been confronted with the issue of discretion. In Brooks v.
Commonwealth, the applicant contended that the trial court erred in considering risk assessment factors as part of his sentencing guidelines recommendation.83 The defendant argued that the upward
adjustment to the sentencing recommendation caused by his risk assessment factors was fundamentally unfair and violated his constitutional rights to due process. In Luttrell v. Commonwealth, the
defendant argued that the risk assessment instrument could not be applied to the case because it was
not issued at the time of the crime.84 In both cases, the Court of Appeal reaffirmed the principle
80 Ibid. at 43.
81 See Section 1.
82 S IMON & F EELEY (2003), supra n. 3. See also F EELEY (2004), supra n. 3, and S IMON , J. (2005) Reversal of fortune:
the resurgence of individual risk assessment in criminal justice. Annual Review of Law and Social Science, 1, 397.
83 Brooks v. Commonwealth of Virginia, 28 January 2004. Record No. 2540-02-3.
84 Luttrell v. Commonwealth of Virginia 592 S.E.2d 752 (Va.App. 2004).
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that ‘appellate courts have no power to set aside the sentencing verdict merely on the ground of
abuse of the discretionary power conferred by the legislature’.85 In Luttrell, the court illustratively
continued that the legislature by statute ‘has authorized a sentencing commission “to assist the judiciary in the imposition of sentences by establishing a system of discretionary guidelines”.’ From
this authorization, it follows among others that ‘the failure to follow any or all the provisions of [the
discretionary guidelines] in the prescribed manner shall not be reviewable on appeal or the basis of
any other post-conviction relief’.86 Accordingly, the court in both cases dismissed the applicants’
claims, reaffirming that the discretionary guidelines are merely tools to assist a judge in the exercise
of the judge’s discretion.
Accordingly, despite the actuarial language in the risk assessment instrument, sentencing
decision-making is designed to allow sentencing courts also to take also other and more concrete
aspects of the case into consideration. Most significantly, a parallel to the prominent focus on the
usefulness and availability of individual alternative sanctions is seen in that the Virginia sentencing
court is not merely faced with the choice of imprisonment or not, but must, if diverting an offender
from imprisonment, specify a specific alternative sanction. Typically, imposed alternative sanctions
include supervised probation, a briefer incarceration period, restitution, indefinite probation, fine,
time served, sentenced to diversion centre, to detention centre, unsupervised probation, substance
abuse services, suspended driver’s license, electronic monitoring, community service, intensive supervision and day reporting.87 If, e.g. only a diversion or detention centre placement is considered
suitable as alternative sanction, imposing those sanctions requires that the specific programme exists
in that region of the state, there is an available placement within reasonable time and the offender is
considered eligible. To fulfil the latter requirement, the court orders an eligibility evaluation by the
probation and parole district office. As one informant, a Richmond defence attorney, described the
process, she would first talk about the suitable programme with the defendant, then an evaluation
of the defendant had to be carried out and they had to find an available space. She concluded that
even though the risk assessment instrument provides a formal legitimacy to divert from imprisonment, rather than imprison, the choice of sanction significantly turns on the availability of, and the
initiative to push for, a specific alternative sanction. Second, it is not merely by way of the highly
selective numerically constructed personal and social profiles of the offender that the sentencing
court may learn about the offender. In court trials, the sentencing court will also be in possession of
a Pre-Sentence Report (PSR). The PSR presents deeper descriptions of the crime, the prior criminal
record and narratives of the personal and social circumstances of the individual offender.88 The PSR
is prepared prior to, and is available at, the handling of full trials. If a case is dealt with as a plea
agreement, a PSR is available to the extent that it already exists from previous cases. It is unclear to
what extent judges and other decision-makers vary in their use of these instruments, but it is clear
that the ARAI and the binary choice between prison and alternative sanction exist as part of several
frames for decision-making, in which there is room also for a more individualized selection process.
The rates of departures from the non-violent risk assessment recommendations more than amply
indicate that choices between imprisonment and alternatives are framed by more than the aggregate
structures of the actuarial risk assessment. The Annual Reports for the fiscal years 2004 and 2005
85 Luttrell v. Commonwealth of Virginia 592 S.E.2d 752, 753 (Va.App. 2004).
86 VA St §19.2-298.01 (F).
87 See further V IRGINIA C RIMINAL S ENTENCING C OMMISSION (2005) Annual Report.
88 Informants accounted great variation in the depth of PSRs and that with some judges they consistently did not contain
any information on the social circumstances of the offender.
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TABLE 1 Recommended and actual dispositions to alternative sanctions,
fiscal year 2004. The figures in parentheses indicate the number of cases in
the corresponding category. Source: 2004 Annual Report, Virginia Criminal Sentencing Commission, figure 21
Recommended
disposition
Actual disposition
Received
alternative
Recommended
16.5%
for alternative
(1013)
Not recommended
17.6%
for alternative
(1081)
Did not receive
alternative
21.0%
(1290)
44.9%
(2757)
TABLE 2 Recommended and actual dispositions to alternative sanctions,
fiscal year 2005. The figures in parentheses indicate the number of cases in
the corresponding category. Source: 2005 Annual Report, Virginia Criminal
Sentencing Commission, figure 20
Recommended
disposition
Actual disposition
Received
alternative
Recommended
20.6%
for alternative
(1316)
Not recommended
13.0%
for alternative
(834)
Did not receive
alternative
27.0%
(1733)
39.4%
(2529)
show that, of the, respectively, 6,141 and 6,418 eligible cases, in average less than half of those offenders recommended for alternative sanctions actually received alternative sanctions, whereas more
than two-thirds of those recommended for imprisonment were actually also sentenced to imprisonment (Tables 1 and 2).
First of all, the distributions for both years indicate some resistance to the diversion of offenders from prison sanctions. Secondly, the distributions indicate that in general, the ARAI is all but
followed blindly. The deviations from the recommendations vary between crime categories,89 and
there are large variations in the compliance rates between court circuits.90
The idea behind this alleged openness to individualization in the choice of sanction is that the
lack of judicial control brings about a discretionary power to the sentencing court and thereby a
more extensive openness to individualization. As in the case of Denmark, the sentencing courts can
be said to have the power to introduce an individual purpose in the choice of sanction, to insist on
a personal history and future of the offender and to introduce a moral context into the evaluation of
the sanction choice, simply because of its discretionary character. In response to this idea, it must
first of all be remembered that there is no necessary relationship between sentencing discretion and
individualization. Individualization does not necessarily flow from discretion. Secondly and more
concretely, unlike in the case of Denmark, discretion in the case of Virginia consists in the mere
89 V IRGINIA C RIMINAL S ENTENCING C OMMISSION (2004), supra n. 38 at 38; V IRGINIA C RIMINAL S ENTENCING
C OMMISSION , supra n. 87 at 31.
90 V IRGINIA C RIMINAL S ENTENCING C OMMISSION (2003), supra n. 38 at 70–71.
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R. H. WANDALL
lack of framework. The method is to disable a judicial review of the compliance of the ARAI.
Sanction choices are left for the local court and participants to organize. This method is one that
ignores the potential of enforcement mechanisms other than those deriving from the judiciary and
the legislature. Or put in other words, it effectively turns a blind eye to any structural power that the
discretionary guidelines may have. It ascribes no relevance to their presence and leaves questions
of justice that may arise under the guidelines outside of the legal system, and in the hands of the
sentencing commission. Considering the policy investments that have been made in the structures
of the VCSC and the claims of their efficiency, it is remarkable that their structuring power is not
recognized in the judicial system. In the remaining part of this section, I look closer at how the ARAI
indeed is supported by some level of enforcement mechanism.
6. Enforcement of the actuarial risk assessment
On the level of case handling, the risk assessment is made to be a mandatory part of the decisionmaking process. Technically, the court has to fill out the relevant worksheets and substantively the
court must provide a reason if it departs from the recommended sentence. Thus, in all relevant cases
the court must have presented to it the appropriate guidelines, and must complete the worksheets.
In Richmond, the probation officers would prepare the risk assessments when cases were handled
as trials. If cases were handled as plea agreements, the prosecutor would typically fill out the risk
assessment worksheet as part of the guidelines of the case. Subsequent to sentencing the worksheet
must be filed on the case.91 If it departs from guidelines, the court must file a written explanation of
the departure.92 The completed files, including reasons for departures, are sent to the VCSC.93
The VCSC has a central role in the enforcement both of guidelines in general and of risk assessment in particular. The commission has compliance rate as a significant success criteria and responds
to rates of risk assessment compliances in several ways. The commission compiles yearly statistics
of compliance rates on court circuit level. This allows the public, the legislature and every court to
see and compare the compliance rates for individual court circuits. For the average and larger circuits, it is not possible to see the compliance rates for individual judges, but for the smaller circuits,
the overall compliance rates are indicative of the individual judges in the circuit. Sentencing judges
who depart at a markedly higher rate than others will be noticed by the commission and a private
communication may take place between that judge and a high-ranking member of the judiciary.
Though no public opinions report on the current state of affairs, there are some indications that
judges may be sensitive to the knowledge of future political reappointment interviews. One study has
reported that many of the judges consider high rates of departure from the guidelines a risk to reappointment by House and Senate.94 Thus, Virginia is one of the states in which judges are appointed
for a fixed term and interviewed before being reappointed. The Courts of Justice Committee, however, has a ‘gentleman’s agreement’ that compliance rates do not enter these evaluations. To what
extent this is respected and what role departure rates from the sentencing guidelines, hereunder the
risk assessment instruments, will play in this connection is unknown.
91 VA St §19.2-298.01 (A).
92 VA St §19.2-298.01 (B).
93 VA St §19.2-298.01 (E).
94 K ING , N. J. & N OBLE , R. L. (2004) Felony jury sentencing in practice: a three-state study. Vanderbilt Law Review, 57,
885. See also F RASE , R. S. (2005) State sentencing guidelines: diversity, consensus, and unresolved policy issues. Columbia
Law Review, 105, 1190, 1198–1199.
ACTUARIAL RISK ASSESSMENT
199
7. Conclusions
The use of actuarial risk assessment represents a new sentencing strategy to divert offenders to
alternative sanctions and limit the use of imprisonment. The actuarial technology is arguably a statistically better method of predicting risk and may be an efficient strategy to divert offenders to
alternative sanctions. Scholarship on the increasing use of actuarial and managerial technologies
in sentencing and penal administration stresses aggregation and lack of individualization as a consequence of the technology. A number of studies argue that sentencing and other kinds of penal
decision-making remain individualized despite the introduction of actuarial technologies. To the
extent that sentencing decision-making is a structured practice, selects the penal fate of individual offenders and is performed by individual judges and prosecutors, sentencing remains placed in
a constant tension between rule and individual—between aggregation and individualization. It will
not be simply one or the other. New technologies may, however, shift the balance, with the principled
consequences that follow.
A comparison of Denmark and the Commonwealth of Virginia shows how contrastingly different
strategies move sentencing in different directions in this balance. Firmly grounded in a democratic
welfare ideology, sentencing strategies to divert offenders to alternative sanctions in Denmark curtail
trial courts pursuing reformist ideologies, individualizing sanction choices and providing considerable space for trial courts to create proximity between sentencing and the individual offender. The
introduction of ARAIs in the Commonwealth of Virginia in contrast shifts the balance towards an
aggregation of diversion strategies. The actuarial framework amplifies the distance between the sentencing framework and the individual offender, it employs a technology that takes aggregates of
offenders rather than individual offenders as subjects of penal analysis and it is carried by an ideology with no perception of the individual offender, but of a balance between correctional resources
and public safety. It may be that the actuarial strategy produces a larger aggregate inclusion of individual offenders in communities, but it selects offenders using a framework with a perception of
offenders as numerical objects rather than moral or social capable subjects, and it does not operate
to restore individual offenders as capable individuals in society.
The ARAI in Virginia is constructed as discretionary. Sentencing courts are not bound to follow the guidelines and their departures are not reviewable on appeal. This feature opens the door to
reclaiming some level of recognition of the concrete aspects of the individual case and of the personality of the individual offender. The large number of actual departures from the recommendations
of the risk assessment instrument shows that sentencing courts indeed depart at a high rate. Yet, the
discretionary nature of the guidelines also entails that the judicial system turns a blind eye to the
potentially efficiency of an alternative enforcement mechanism. The enforcement system underpinning the ARAI represents such mechanisms. It has the VCSC as a central agency and operates with
its own language of probability and its own standards of success. Constructing the risk assessment
instrument as discretionary may create a space for individualization, but it also removes the structuring power of the alternative enforcement system from judicial control. It effectively opens a door
to other and potentially more aggregate and categorical frameworks of sentencing decision-making,
leaving them and their consequences outside the realm of judicial scrutiny.
Acknowledgements
The paper was prepared during research fellowships at NYU School of Law and at Centre for Criminology, Oxford University, 2005–2006. The research was initially presented at the Transdisciplinary
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Seminar on Law, Probability and Risk in Penal Justice, University of Edinburgh, October 2005. I am
very grateful to the organizers and the workshop participants for critical discussion and useful comments. Furthermore, I wish to thank John Monahan, James Jacobs, David Garland, Jerome Bruner,
Jerome Cohen, Rachel Barkow, Jo Dixon and Ping Yu for comments to an earlier draft. Moreover,
I wish to thank Rick Kern from the VCSC for hosting me in Virginia and for answering my endless
questions to the operations of the Virginia sentencing guidelines. My thanks also goes to the judges
and attorneys who offered their time and energy to participate in the study. The research is funded
by the Royal Danish Research Council (grant #24-04-0350).