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No evidence for actuarial justice in judicial decision-making in the Netherlands

No evidence for actuarial justice in judicial decision-making in the Netherlands

We live in a risk society, many scholars contend. Attempting to eliminate all risks, criminal punishment is no longer based on guilt, but on one’s risk of jeopardizing the security of others in the future. Just theory? Or also sentencing practice?

The rise of the risk society is unmistakable, many scholars contend. On the grounds of safety, the government is willing to take or enforce drastic measures, for which criminal law is deployed as an instrument to control security risks. This is a hallmark of what Feeley and Simon call ‘actuarial justice’ (M. Feeley and J. Simon (1994), ‘Actuarial Justice: The Emerging New Criminal Law’, in: D. Nelken (ed.) The Futures of Criminology, p. 173-201, London: Sage).
A feature of actuarial justice is that different techniques, such as risk assessments, are used for managing danger. Groups are identified, classified and controlled based on their expected danger to society, with the objective of selective elimination of the groups posing a high risk to society, for example by locking them up for a long period of time. This could lead to punishment no longer being based on guilt, but on a person’s risk of jeopardizing the security of others in the future. Worse still, a person is not punished for crimes he might commit in the future, but for crimes ‘average’ offenders with equal characteristics are statistically expected to commit.
Yet, these theoretical views raise the question: is this role of the risk of recidivism also reflected in sentencing practice?

Risk assessment by RISc

In the Netherlands, information on the suspect’s risk of recidivism and social background are provided to the judges by means of a pre-sentencing report. Since 2004, the Dutch Probation Service uses RISc (Recidivism Assessment Scales) to assess the risk of recidivism. RISc maps out the suspect’s criminogenic factors. These factors are divided into twelve sections (the Scales), such as accommodation, education, work, finance, relationships with family and friends, drug and alcohol abuse, emotional well-being and attitudes. Together, the scores on these sections form the overall score indicating the risk of recidivism. The outcome of the RISc indicates whether the offender’s risk of recidivism is considered to be low, average or high.

Results of research on the effects of the risk of recidivism on sentencing outcomes

Regression analyses of over 22,000 cases reveal that the outcome of the risk assessment by RISc plays an ambiguous and modest role at judicial decision-making and that the RISc-outcome as well as static and dynamic risk factors only cause a small increase in the explained variance. This indicates that they play only a modest role in the explanation of the sentencing disparity. Sentencing disparities are mainly caused by offence and case processing characteristics; the risk-related items are merely used for fine-tuning the sentence. (See for the complete research report: Risk of recidivism and sentencing)

Contribution of the sentencing determinants to the explained variance (R2 and Nagelkerkes R2)
Figure: Contribution of the sentencing determinants to the explained variance (R2 and Nagelkerkes R2)

Explanation for ambiguous role of the risk of recidivism

The ambivalent role of the risk of recidivism may be explained by the fact that high risk offenders have a greater chance of receiving a conditional sentence since they need ‘fixing’, but high risk offenders also usually have an extensive criminal record, which makes them less likely to receive a conditional sentence: ‘That ship has sailed’.

Conclusion: no evidence for actuarial justice

The theoretical assumptions on the importance of the risk of recidivism as a sentencing determinant are not supported by Dutch sentencing outcomes. Empirical evidence for the prevalence of actuarial justice in the Netherlands is thus not found. Fortunately!

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