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2018 California Rules of Court

Standard 4.35. Court use of risk/needs assessments at sentencing

(a) Application and purpose

(1)This standard applies only to the use of the results of risk/needs assessments at sentencing.

(2)The use of the results of risk/needs assessments at sentencing is intended to:

(A)Prevent biases in sentencing;

(B)Reduce the risk of recidivism by focusing services and resources on medium- and high-risk offenders, who are most likely to reoffend;

(C)Reduce a defendant's risk of future recidivism by targeting that defendant's needs with appropriate intervention services through community supervision programs demonstrated to reduce recidivism; and

(D)Advance the legislative directive to improve public safety outcomes by routing offenders into community-based supervision informed by evidence-based practices.

(b) Definitions

(1)em] "Risk" refers to the likelihood that a person will reoffend without regard, unless otherwise specified, to the nature of the original offense or the nature of the reoffense.

(2)"Risk factors" refers to the "static" and "dynamic" factors that contribute to the risk score.

(3)"Static risk factors" refers to those risk factors that cannot be changed through treatment or intervention, such as age or prior criminal history.

(4)"Dynamic risk factors," also known as "needs," are factors that can be changed through treatment or intervention.

(5)"Results of a risk/needs assessment" refers to both a risk score and an assessment of a person's needs.

(6)A "risk score" refers to a descriptive evaluation of a person's risk level as a result of conducting an actuarial assessment with a validated risk/needs assessment instrument and may include such terms as "high," "medium," or "low" risk.

(7)"Amenability" or "suitability" refers to the likelihood that the person can be safely and effectively supervised in the community and benefit from supervision services that are informed by evidence-based practices that have been demonstrated to reduce recidivism.

(8)A "validated risk/needs assessment instrument" refers to a risk/needs assessment instrument demonstrated by scientific research to be accurate and reliable in assessing the risks and needs of the specific population on which it was validated.

(9)"Supervision" includes all forms of supervision referenced in Penal Code section 1203.2(a).

(c) Validation

The risk/needs assessment instrument should be validated.

(d) Proper uses of the results of a risk/needs assessment at sentencing

(1)The results of a risk/needs assessment should be considered only in context with all other information considered by the court at the time of sentencing, including the probation report, statements in mitigation and aggravation, evidence presented at a sentencing proceeding conducted under section 1204, and comments by counsel and any victim.

(2)The results of a risk/needs assessment should be one of many factors that may be considered and weighed at a sentencing hearing. Information generated by the risk/needs assessment should be used along with all other information presented in connection with the sentencing hearing to inform and facilitate the decision of the court. Risk/needs assessment information should not be used as a substitute for the sound independent judgment of the court.

(3)Although they may not be determinative, the results of a risk/needs assessment may be considered by the court as a relevant factor in assessing:

(A)Whether a defendant who is presumptively ineligible for probation has overcome the statutory limitation on probation;

(B)Whether an offender can be supervised safely and effectively in the community; and

(C)The appropriate terms and conditions of supervision and responses to violations of supervision.

(4)If a court uses the results of a risk/needs assessment, it should consider any limitations of the instrument that have been raised in the probation report or by counsel, including:

(A)That the instrument's risk scores are based on group data, such that the instrument is able to identify only groups of high-risk offenders, for example, not a particular high-risk individual;

(B)Whether the instrument's proprietary nature has been invoked to prevent the disclosure of information relating to how it weighs static and dynamic risk factors and how it determines risk scores;

(C)Whether any scientific research has raised questions that the instrument unfairly classifies offenders by gender, race, or ethnicity; and

(D)Whether the instrument has been validated on a relevant population.

(e) Improper uses of the results of a risk/needs assessment at sentencing

(1)The results of a risk/needs assessment should not be used to determine:

(A)Whether to incarcerate a defendant; or

(B)The severity of the sentence.

(2)The results of a risk/needs assessment should not be considered by the court for defendants statutorily ineligible for supervision.

(f) Amenability to or suitability for supervision

(1)A court should not interpret a "high" or "medium" risk score as necessarily indicating that a defendant is not amenable to or suitable for community-based supervision. Community-based supervision may be most effective for defendants with "high" and "medium" risk scores. A "low" risk score often, but not necessarily, indicates that a defendant is amenable to or suitable for community-based supervision. Risk scores must be interpreted in the context of all relevant sentencing information received by the court.

(2)Ordinarily a defendant's level of supervision should correspond to his or her level of risk of recidivism. In most cases, a court should order that a low-risk defendant receive less supervision and a high-risk defendant more.

(3)A court should order services that address the defendant's needs.

(g) Education regarding the nature, purpose, and limits of risk/needs assessment information is critical to the proper use of such information. Education should include all justice system partners.

Standard 4.35 adopted effective January 1, 2018.

Advisory Committee Comment

Subdivision (d)(1)–(2). Although the results of risk/needs assessments provide important information for use by the court at sentencing, they are not designed as a substitute for the exercise of judicial discretion and judgment. The information should not be used as the sole basis of the court's decision, but should be considered in the context of all of the information received in a sentencing proceeding. If justified by the circumstances of the case, it is appropriate for the court to impose a disposition not supported by the results of a risk/needs assessment. (See State v. Loomis (2016) 371 Wis.2d 235, 266 ["Just as corrections staff should disregard risk scores that are inconsistent with other factors, we expect that . . . courts will exercise discretion when assessing a . . . risk score with respect to each individual defendant"].)

Subdivision (d)(4). Court and justice partners should understand any limitations of the particular instrument used to generate the results of a risk/needs assessment. (See State v. Loomis, supra, 371 Wis.2d at p. 264 [requiring presentence investigation reports to state the limitations of the instrument used, including the proprietary nature of that instrument, any absence of a cross-validation study for relevant populations, and any questions raised in studies about whether the instrument disproportionately classifies minority offenders as having a higher risk of recidivism].) The Wisconsin court also required that all presentence investigation reports caution that risk/needs assessment tools must be constantly monitored and renormed for accuracy because of changing populations and subpopulations. (Ibid.) California courts should similarly consider any such limitations in the accuracy of the particular instrument employed in the case under review. (See ibid. ["Providing information to sentencing courts on the limitations and cautions attendant with the use of . . . risk assessments will enable courts to better assess the accuracy of the assessment and the appropriate weight to be given to the risk score"].)

Subdivision (d)(4)(D). Validating a risk/needs assessment instrument will increase its accuracy and reliability. Validation on a relevant population or subpopulation is recommended to account for differences in local policies, implementation practices, and offender populations. Ongoing monitoring and renorming of the instrument may be necessary to reflect changes in a population or subpopulation. Revalidation of the instrument is also necessary if any of its dynamic or static risk factors are modified.

Subdivision (e). When the court is considering whether to place a person on supervision at an original sentencing proceeding or after a violation of supervision, the results of a risk/needs assessment may assist the court in assessing the person's amenability to supervision and services in the community. But when the person is ineligible for supervision, or the court has otherwise decided not to grant or reinstate probation, the results of a risk/needs assessment should not be used in determining the period of incarceration to be imposed. (See State v. Loomis, supra, 371 Wis.2d at p. 256 [holding that risk/needs assessments should not be used to determine the severity of a sentence or whether a defendant is incarcerated]; Malenchik v. State (Ind. 2010) 928 N.E.2d 564, 573 ["It is clear that [risk/needs assessment instruments are neither intended] nor recommended to substitute for the judicial function of determining the length of sentence appropriate for each offender"].)

Subdivision (f). Risk/needs assessment instruments generally produce a numerical or descriptive "risk score" such as "high," "moderate," or "low" risk. It is critical that courts and justice partners understand the meaning and limitations of such designations. First, because risk assessments are based on group data, they are able to identify groups of high-risk offenders, not a particular high-risk individual. Second, in some assessment instruments, "risk" refers only to a generalized risk of committing a new offense, not to the seriousness of the subsequent offense (e.g., violent, sex, drug, or theft). Nor does "high risk" necessarily mean "highly dangerous." A high-risk drug offender, for example, may present a high risk that he or she will use drugs again, but does not necessarily present a high risk to commit a violent felony. Third, scientific research indicates that medium- and high-risk offenders may most benefit from evidence-based supervision and programs that address critical risk factors. Courts and probation departments should also consider how presentence investigation reports present risk assessment information. A report that merely refers to the defendant as "high risk" may incorrectly imply that the defendant presents a great danger to public safety and must therefore be incarcerated. Conversely, "low risk" does not necessarily mean "no risk."

Subdivision (g). An instrument's accuracy and reliability depend on its proper administration. Training and continuing education should be required for anyone who administers the instrument. Judges with sentencing assignments should receive appropriate training on the purpose, use, and limits of risk/needs assessments. (See Guiding Principle 4, Stakeholder Training, in Pamela M. Casey et al., Using Offender Risk and Needs Assessment Information at Sentencing: Guidance for Courts from a National Working Group (National Center for State Courts, 2011) pp. 21–22.)

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