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66 Stan. L. Rev. 803 (2014)
Evidence-Based Sentencing and the Scientific Rationalization of Discrimination

handle is hein.journals/stflr66 and id is 833 raw text is: EVIDENCE-BASED SENTENCING AND THE SCIENTIFIC RATIONALIZATION OF DISCRIMINATION Sonja B. Starr* This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice vio- lates the Equal Protection Clause and is bad policy: an explicit embrace of oth- erwise-condemned discrimination, sanitized by scientific language. To demon- strate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing litera- ture. To demonstrate that the policy is not justified by countervailing state inter- ests, I review the empirical evidence underlying the instruments. I show that they provide wildly imprecise individual risk predictions, that there is no compelling evidence that they outperform judges' informal predictions, that less discrimina- tory alternatives would likely perform as well, and that the instruments do not even address the right question: the effect of a given sentencing decision on re- cidivism risk. Finally, I also present new empirical evidence, based on a random- ized experiment using fictional cases, suggesting that these instruments should not be expected merely to substitute actuarial predictions for less scientific risk assessments but instead to increase the weight given to recidivism risk versus other sentencing considerations. IN TRO DU CTION .......................................................................................................804 I. ACTUARIAL RISK PREDICTION AND THE MOVEMENT TOWARD EVIDENCE- BASED SENTENCING .........................................................................................809 A. The Actuarial Instruments ..........................................................................809 B. The Arguments for Evidence-Based Sentencing .........................................814 C. Scholarly Criticisms ...................................................................................817 II. THE DISPARATE TREATMENT CONCERN...........................................................821 A. Equal Protection ........................................................................................821 * Professor of Law, University of Michigan. Thanks to Don Herzog, Ellen Katz, Richard Primus, Margo Schlanger, and participants in the Conference on Empirical Legal Studies, the SMU Criminal Justice Colloquium, and Michigan Law's Faculty Scholarship Brownbag Lunch and Fawley Workshop for their comments. Grady Bridges, Matthew Lanahan, and Jarred Klorfein provided excellent research assistance. 803

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