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New Risk Assessment Tool for PA Cases Comes Under Continued Fire

A New Risk Assessment Tool for Sentencing in PA Criminal Cases—Reform or More Harm? | Opinion

Laurel Gift - September 7, 2019

On September 5, 2019, the Pennsylvania Commission on Sentencing adopted a Sentence Risk Assessment Instrument that has been subject to harsh criticism and lacks public approval. After years of consideration, the commission has now acted to make the criminal sentencing system more unfair and no more reliable than a coin flip.

I have seen first-hand, both as a prosecutor and now as a defense attorney, the challenges our courts face in issuing criminal sentences, and reforms are badly needed to assist Pennsylvania’s judges. Unfortunately, the commission has now acted to increase the risk of systemic irregularities.

In 2010, the Pennsylvania General Assembly mandated that the commission create a risk assessment tool to aide in the sentencing of criminal defendants. The purpose of the 2010 mandate was to develop an instrument to assist the courts in considering whether an individual is at risk for re-offending or whether alternative sentencing programs (such as Drug Treatment Court or Veterans Court) would be effective.

The commission was also instructed to use empirical data to determine what factors help predict recidivism, and ultimately, adopt a risk assessment tool to be used by courts in sentencing. In recent years, many different instruments have been considered, including a mathematical algorithm. The commission has now adopted a final sentencing instrument that uses a “risk assessment score,” based on various risk factors, to determine whether a defendant is viewed as high or low risk for recidivism.

While most agree that the goal of improving sentencing for criminal defendants is worthwhile and necessary, there continues to be significant disagreement about how to get there. The instruments considered and now adopted by the commission have been criticized as biased, in part because the underlying arrest and recidivism data is considered to be biased. Concerns have also been raised that the use of factors—such as zip code and education level—would disparately impact ethnic groups that already have a higher likelihood of arrest and are disproportionally sentenced and punished for the same offenses as other groups. Lawyers, scholars, and sociology experts have testified that the good intentions of the commission will now be undermined by a sentencing tool that will actually cause more disparity for groups that are already at a disadvantage.

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