Courts increasingly use actuarial—meaning statistically derived—information about a defendant’s likelihood of engaging in criminal behavior in the future at sentencing. This Article examines how developers construct the tools that predict recidivism risk. It exposes the numerous choices that developers make during tool construction with serious consequences to sentencing law and policy. These design decisions require normative judgments concerning accuracy, equality, and the purpose of punishment. Whether and how to address these concerns reflects societal values about the administration of criminal justice more broadly. Currently, developers make these choices in the absence of law, even as they face distinct interests that diverge from the public. As a result, the information produced by these tools threatens core values at sentencing. This Article calls for accountability measures at various stages in the development process to ensure that the resulting risk estimates reflect the values of the jurisdictions where the tools will be applied at sentencing.
Eaglin, Jessica, Constructing Recidivism Risk (October 2017). 67 Emory Law Journal 59 (2017), Available at SSRN: https://ssrn.com/abstract=2821136 or http://dx.doi.org/10.2139/ssrn.2821136