Actuarial risk assessment. The loss of recognition of the individual offender

Abstract

The paper is about the design of sentencing decision-making. It contrasts the actuarial risk assessment instrument (ARAI) in the Commonwealth of Virginia to the statutory and judicial guidance in Denmark. Both are used as frameworks to identify and classify offenders eligible for diversion to alternative sanctions to imprisonment. By contrasting the sentencing frameworks, the paper articulates and defends the view that actuarial risk assessment as introduced in Virginia challenges a fundamental quality of modern penal justice of recognizing the moral personality of individuals subjected to criminal sentencing. The paper also shows that sentencing judges in Virginia, despite the unambiguously aggregate language of the ARAI, are provided some space to construct sentencing as a more concrete and individualized analysis, relying on the discretionary character of the instrument. Yet, from this discretionary construction flows not only that sentencers are released from the formal legal structures but also that sentencing judges are subjected to the enforcement mechanisms of the Virginia Criminal Sentencing Commission, outside the scope of judicial review.