Valid or voodoo? A qualitative study of attorney perceptions of risk assessment in sentencing and plea bargaining.

Prior research largely has explored judicial perceptions of risk assessment in sentencing. Little is known about how other court actors, specifically, prosecutors and defense attorneys, perceive risk assessments in the sentencing process. Here, we report a qualitative study on the use of risk assessment by prosecutors and defense attorneys in Virginia. A prior survey (n = 70) pointed to a statistically significant difference in how prosecutors and defense attorneys view the role of recidivism risk in sentencing. On the basis of the results of this quantitative study, we collected follow-up qualitative data via interview (n = 30) to explain this unexpected difference. Analysis confirmed the survey findings that prosecutors and defense attorneys differ in their perceptions of risk assessment in sentencing. Results suggest that court actor perceptions vary as a function of professional role in the service of the identified client (the community or the defendant) and their interests. Although perceptions diverged on utility risk assessment in sentencing, both prosecutors and defense attorneys were outspoken in their skepticism of the Nonviolent Risk Assessment instrument that is used to predict recidivism risk in Virginia. This latter finding identifies obstacles that may emerge as jurisdictions adopt a risk-based approach to sentencing. We conclude with recommendations for addressing these barriers that may provide useful guidance on the implementation process.

Risk assessment in sentencing and plea bargaining: The roles of prosecutors and defense attorneys.

Research on risk assessment in sentencing has focused heavily on the role of judges. Ignoring the role of other courtroom actors in the sentencing process, however, leaves unexamined the potentially significant effects on judicial decision making of arguments made by prosecutors and defense attorneys at sentencing hearings. Unduly focusing on judges also overlooks the vast majority of sentences arrived at through negotiated guilty pleas. We explored the extent to which considerations of risk are made among prosecutors and defense attorneys when advocating for given sentences in open court or during plea negotiations. We surveyed all prosecutors and defense attorneys in 14 judicial circuits in Virginia and found that most prosecutors and defense attorneys at least "sometimes" explicitly invoked actuarial risk estimates both at sentencing hearings and during plea negotiations. However, defense attorneys were much more likely than prosecutors to be averse to the use of risk assessment in either form of case disposition.

Risk and resources: A qualitative perspective on low-level sentencing in Virginia.

Virginia's sentencing guidelines include alternative sanctions based on the use of a quantitative instrument called the Nonviolent Risk Assessment (NVRA) that identifies individuals convicted of drug and property crimes that are considered to be at lower risk of recidivism. Although nondispositive, the NVRA affords judges the discretion to grant alternative sentences to eligible low-risk defendants. In this study, we explore how judges make use of the NVRA instrument when sentencing individuals convicted of low-level drug and property crimes. Through semistructured interviews (N = 24) and inductive thematic analysis, the research team identified contextual factors that influence the use of the NVRA results, including: the availability of alternative programs in a community, the role of court actors, particularly prosecutors, in shaping the sentencing outcomes, as well as an individual judge's willingness to defer to or reject negotiated plea agreements offered by the prosecutor. Our research shows that while some judges are aware of and embrace the benefits of the instrument, others lack knowledge altogether of its function and empirical basis. We identified seven themes that account for variation in how actuarial risk is utilized in the sentencing process. Our findings provide insight into the practical challenges of using risk-based assessment as a tool for the sentencing of low-level convictions. As more states adopt risk-based approaches to sentencing, studying Virginia, which has gone farther than other states in legislating this strategy, becomes increasingly important.

Judicial appraisals of risk assessment in sentencing.

The assessment of an offender's risk of recidivism is emerging as a key consideration in sentencing policy in many US jurisdictions. However, little information is available on how actual sentencing judges view this development. This study surveys the views of a population sample of judges in Virginia, the state that has gone further than any other in legislatively mandating risk assessment for certain drug and property offenders. Results indicate that a strong majority of judges endorse the principle that sentencing eligible offenders should include a consideration of recidivism risk. However, a strong majority also report the availability of alternatives to imprisonment in their jurisdictions to be inadequate at best. Finally, most judges oppose the adoption of a policy requiring them to provide a written reason for declining to impose alternative interventions on "low-risk" offenders.