As Congress Considers Sentencing Reform, Professor John Monahan Examines Risk's Role

John Monahan

John Monahan is the John S. Shannon Distinguished Professor of Law, a psychologist who is an expert in mental health and criminal offender recidivism, and the author or editor of 17 books and more than 250 articles and chapters.

October 12, 2015

As congressional leaders propose reforms to harsh criminal sentencing laws that many believe have contributed to prison overcrowding nationwide, University of Virginia School of Law professor John Monahan, an expert in violence risk assessment and how courts use behavioral science evidence, is taking a closer look at risk's role in the sentencing process.

In the forthcoming article " Risk Assessment in Criminal Sentencing," to be published next year in the Annual Review of Clinical Psychology, Monahan and co-author Jennifer L. Skeem of the University of California, Berkeley examine jurisprudential theories on risk assessment, which attempt to determine the risk of recidivism and the defendant's overall threat to society. The authors also review how risk is defined and used in the judicial process, and address key problems for making risk assessment an effective ongoing practice.

Monahan said the latest Senate proposal — introduced this month — is just one of several pieces of legislation anticipated in response to the country's growing incarceration problem.

"One thing those bills all have in common is use of risk assessment in sentencing," he said.

Last year the Bureau of Justice Statistics reported that one in 35 adults in the United States were under some form of correctional supervision.

"The fiscal and human toll of mass incarceration is difficult to justify, particularly in an era when crime rates are at historic lows," Monahan said.

But as jurisprudence has begun to shift from a just deserts approach to a risk assessment approach, he said, how judges weigh risk is becoming increasingly important.

"What we have tried to do in the paper is to clarify issues that are presented when one bases criminal sentencing in part not just on people's moral responsibility for committing crime in the past, but also in part on people's empirical likelihood of committing more crime in the future," he said.

Monahan said he relied upon his more than 40 years of studying risk assessment of violence within the context of the mental health system to make comparisons for the paper. He and his colleague found that current problems with the assessment process include conflating risk with blame, focusing on clinical rather than group-based risk assessment, failing to distinguish risk assessment from risk reduction, and ignoring the potential for risk assessment in sentencing to affect racial and economic disparities in imprisonment.

In many instances, judges have been reluctant to look at demographics as they determine risk, Monahan said.

"[But] age is clearly associated with criminal recidivism, and gender is also a risk factor," he said. "It's not unusual to use gender as a risk factor in civil commitment to the mental health system, and the existence of gender differences in various diseases is common."

In fact, he said, "Not to use gender as a risk factor in health care would be simple malpractice."

But Monahan said that caution has to be taken when looking at statistics, too.

"If using risk assessment in sentencing results in increasing racial disparity in imprisonment rates — which is an open empirical question — this would obviously be a great concern," he said. "Former Attorney General Eric Holder stated shortly before he left office that his major reservation in risk assessment for sentencing was that it could exacerbate existing disparities in imprisonment, and he is certainly right to be concerned about it."

Monahan, a psychologist, is a member of the National Academy of Medicine and serves on the National Research Council. He was the founding president of the American Psychological Association's Division of Psychology and Law, and has been a fellow of the John Simon Guggenheim Foundation and the Center for Advanced Study in the Behavioral Sciences. He twice directed research networks for the John D. and Catherine T. MacArthur Foundation.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

News Highlights