The Intuitive-Override Model: Nudging Judges Toward Pretrial Risk Assessment Instruments

Abstract

The development, implementation, and use of risk assessments are some of the most important and controversial issues facing criminal justice systems today. The recent push for judges to use risk assessments in their pretrial release decision making has met with resistance on several fronts, including from judges themselves. We conducted in-depth interviews with judges in a diverse set of courts that were using the Public Safety Assessment (PSA), a risk assessment developed by the Laura and John Arnold Foundation. Interview questions aimed to gain insight into how judges define and assess risk, as well as how they perceive the potential for bias and disparate impacts for communities of color in the use of risk assessments. In this manuscript, we frame our analysis with Guthrie and colleagues’ intuitive-override model and suggest that risk assessment instruments can help judges engage both intuitive and deliberative models of decision making. Our findings indicate that judges perceive a tension when reconciling the actuarial aspect of the PSA and their experience-based inclination to learn about defendants’ lives as a way of assessing risk through determinations of culpability and blameworthiness. We conclude by discussing the PSA through a review of legal scholarship that challenges risk assessments on ethical and moral grounds, and recommend the creation of researcher-judge feedback loops along with increased transparency of model development as key features to improve the accuracy, adoption, and understanding of risk assessments.