Cornell Law Review

Jack and Jill went up the hill,
to steal a pail of water,
Both were caught and sentenced to jail,
But Jack came out two years later.

Why? Assume that both Jack and Jill’s cases are identical in facts, procedure, jury composition, and verdict. The only relevant difference is that Jack is a man and Jill is a woman. Statistically, men are more likely to recidivate than women, ^{11. 1 Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 STAN. L. REv. 803, 863 (2014) (“To give a simple illustration, if a sentence is based on crime severity plus gender, and these factors together produce a ten-year sentence for a male when an otherwise-identical woman would have received seven years, male gender is not solely responsible for the sentence; crime severity establishes the baseline of seven years. But male gender is solely responsible for the extra three years.”).} and under a sentencing system called evidence-based sentencing, the judge agrees that Jack is more likely to commit another crime due to his gender. The solution to this prediction? Jack will spend more time in prison, simply because he is a man.

Evidence-based sentencing is part of a growing trend of using actuarial risk assessments in the criminal justice system. ^{22. 2 Dawinder S. Sidhu, Moneyball Sentencing, 56 B.C. L. REv. 671, 673 (2015) (“More and more, courts today are adopting the use of risk assessment tools in sentencing. These risk-assessment tools take information on recidivism rates for groups and use them to estimate the risk of recidivism for individuals possessing those same group characteristics.”} Evidence-based sentencing relies on a set of factors, some of which are relevant to the crime committed but most of which are based on immutable characteristics outside of the defendant’s control, to predict the probability that a defendant will recidivate. ^{33. 3 The topic of predictive factors of dangerousness recently arose in oral arguments in front of the Supreme Court in Buck v. Davis. Transcript of Oral Argument at 31, Buck v. Davis, 137 S. Ct. 759 (2016) (No. 15-8049).} Notwithstanding the constitutionally problematic nature of relying on certain factors, such as sex, ^{44. 4 The author of this Note would like to point out that actuarial instruments and researchers tend to use gender and sex interchangeably. These two words, however, have two different meanings. For the purpose of this Note, sex is biologically defined, whereas gender is a societal construct. The author also uses the singular “they” throughout this Note.} the scientific validity of such methods is questionable. Although evidentiary rules do not apply to sentencing, this Note argues that the admissibility of such evidence in general, and specifically Pennsylvania’s new sentencing scheme, fails the Daubert framework.

Part I of this Note provides a background into the characteristics and history of different types of evidence-based sentencing and addresses the arguments for and against its use. Part II describes the “future dangerousness” standard used in death penalty sentencing and civil commitments of sexually violent persons as an analogy to evidence-based sentencing and argues that evidence-based sentencing must withstand some type of evidentiary gatekeeping test. Part III subjects evidence-based sentencing to the Daubert test and applies this test broadly to evidence-based sentencing generally, as well as specifically to Pennsylvania’s Risk Assessment Project. ^{55. 5 See PA. COMM’N ON SENT’G, OVERVIEW OF THE RISK ASSESSMENT INSTRUMENT, http://pcs.1a.psu.edu/publications-and-research/research-and-evaluation-reports/risk-assessment [https://perma.cc/5FUC-GVX2].} Part IV uses Federal Rule of Evidence 403 to further explain why evidence-based sentencing should not be used, particularly for models that include sex and age. Part V briefly addresses certain penological theories that evidence-based sentencing reflects and questions whether evidence-based sentencing is the appropriate solution.

To read more of Using Daubert to Evaluate Evidence-Based Sentencing, click here.