Evidence-Based Sentencing

The evidence-based practice (EBP) movement can be traced to a 1992 article in the Journal of the American Medical Association, although decision-making with empirical evidence (rather than tradition, anecdote, or intuition) is obviously much older. Neverthless, for the last twenty-five years, EBP has played a pivotal role in criminal justice, particularly within community corrections. While the prediction of recidivism in parole or probation decisions has attracted relatively little attention, the use of risk measures by sentencing judges is controversial. This might be because sentencing typically involves both backward-looking decisions, related to the blameworthiness of the crime, as well as forward-looking decisions, about the offender’s prospective risk of recidivism. Evidence-based sentencing quantifies the predictive aspects of decision-making by incorporating an assessment of risk factors (which increase recidivism risk), protective factors (which reduce recidivism risk), criminogenic needs (impairments that, if addressed, will reduce recidivism risk), the measurement of recidivism risk, and the identification of optimal recidivism-reducing sentencing interventions. Proponents for evidence-based sentencing claim that it can allow judges to “sentence smarter” by using data to distinguish high-risk offenders (who might be imprisoned to mitigate their recidivism risk) from low-risk offenders (who might be released into the community with relatively little danger). This, proponents suggest, can reduce unnecessary incarceration, decrease costs, and enhance community safety. Critics, however, note that risk assessment typically looks beyond criminal conduct, incorporating demographic and socioeconomic variables. Even if a risk factor is facially neutral (e.g., criminal history), it might operate as a proxy for a constitutionally protected category (e.g., race). The same objectionable variables are used widely in presentence reports, but their incorporation into an actuarial risk score has greater potential to obfuscate facts and reify underlying disparities. The evidence-based sentencing literature is dynamic and rapidly evolving, but this bibliography identifies sources that might prove useful. It first outlines the theoretical foundations of traditional (non-evidence-based) sentencing, identifying resources and overviews. It then identifies sources related to decision-making and prediction, risk assessment logic, criminogenic needs, and responsivity. The bibliography then describes and defends evidence-based sentencing, and identifies works on sentencing variables and risk assessment instruments. It then relates evidence-based sentencing to big data and identifies data issues. Several works on constitutional problems are listed, the proxies problem is described, and sources on philosophical issues are described. The bibliography concludes with a description of validation research, the politics of evidence-based sentencing, and the identification of several current initiatives.