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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.
INTRODUCTION...............................................              .....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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