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76 New York University Annual Survey of American Law 355 (2021)


This Essay turns attention from actuarial risk assessment tools as a reform to the inclination for a technical sentencing reform more broadly. When situated in the context of technical guidelines created to structure and regulate judicial discretion in the 1980s and beyond, the institutionalization of an actuarial risk assessment at sentencing is both an old and new idea. Both sentencing guidelines and actuarial risk assessments raise conceptual and empirical questions about sentencing law and policy. This Essay drills down on two conceptual issues—equality and selective incapacitation—to highlight that actuarial risk assessments as a reform raise recurring questions about sentencing, even as social perspectives on resolving those questions are shifting. Rather than using the “old” nature of the questions as evidence that tools should proliferate; however, this Essay urges critical reflection on the turn toward the technical in the present day, in the face of mass incarceration. It calls for expanding the methodological scope of critiques about actuarial risk tools as sentencing reform going forward. I thank the Annual Survey of American Law and NYU School of Law for the opportunity to reflect on these issues in the context of a symposium celebrating the work of Professor Stephen Schulhofer.

This contribution unfolds in four parts. Part I introduces actuarial risk tools as a sentencing reform. Part II complicates the perception that the tools are “new” by framing this reform in the context of the turn toward judicial sentencing guidelines as a reform in the 1980s. Part III considers how recurring issues of equality and incapacitation obscure social transformations related to expansion of the carceral state between implementation of sentencing guidelines and proliferation of actuarial tools in the present day. Part IV asserts that the framing of “old” and “new” in current scholarship about actuarial risk tools as a sentencing reform is detrimental. It encourages expanding methodological approaches that inform scholarship on this type of reform going forward.