May 2006, Volume 92, Issue 3|
A Jurisprudence of Risk Assessment: Forecasting Harm among Prisoners, Predators, and Patients
92 Va. L. Rev. 391 (2006)
Violence risk assessment routinely takes place in criminal sentencing, in the civil commitment of people with mental disorder, and in the commitment of sexually violent predators. In the past, courts rarely have had to confront the legitimacy of using specific risk factors for violence, because actuarial instruments with scientific validity at assessing violence risk did not exist. Now they do. Among the empirically valid risk factors risk factors that are candidates for inclusion on these instruments are those that pertain to what the person is (age, gender, race/ethnicity, and personality), what the person has (major mental disorder, personality disorder, and substance abuse disorder), what the person has done (prior crime and violence), and what has been done to the person (being raised in a pathological family environment and being physically victimized). This Article argues that in criminal law, with its emphasis on blameworthiness for actions taken, the use of scientifically valid risk factors is properly constrained to those that simultaneously index blameworthiness, i.e., to the defendant’s prior criminal conduct. In law authorizing the involuntary civil hospitalization of people with mental disorder—a legal determination in which blameworthiness plays no part—the use of violence risk factors should be unconstrained, except for the use of classifications subject to strict Equal Protection scrutiny, which here is limited to the individual’s race or ethnicity. Finally, if commitment as a sexually violent predator is properly categorized as civil commitment, the use of violence risk factors in implementing such commitments should parallel the use of violence risk factors in traditional civil commitment. Disagreement with the substantive merits of sexually violent predator statutes does not justify depriving those statutes of the only kind of evidence—empirically-validated actuarial violence risk assessment—that can effectuate their controversial goals.
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