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Umpires Strike Back: Canadian Judicial Experience with Risk-Assessment Instruments

NCJ Number
Canadian Journal of Criminology and Criminal Justice Volume: 49 Issue: 4 Dated: October 2007 Pages: 493-517
David P. Cole
Date Published
October 2007
25 pages
This article examines how correctional officials are importing into bail and sentencing proceedings risk-assessment instruments principally designed for institutional classification, placement, and release decisionmaking.
As Canadian correctional policymakers have begun to embed usage of risk-assessment instruments and various forms of penal and probation decisionmaking, judges are frequently being asked to rule on their admissibility and evidentiary relevance in a variety of contexts, most particularly sentencing. The premise of risk-assessment instruments is that a scientifically representative, valid, and reliable basis can be demonstrated for treating risk with respect to the future as a present fact. Assuming that third or subsequent generation instruments do approach this standard, at least for some populations, on an issue as important as sentencing, expert evidence of this nature should be at a very high and consistent level. As this review of recent law in routine sentencing cases too frequently demonstrates the quality and accuracy of information used, the types of instruments used, and the training and expertise of the assessor are simply not of the consistent caliber that judges and the public should expect. If Canadian correctional officials are not prepared to invest in the resources necessary to adduce proper risk-assessment information, Canadian judges will likely continue to either refuse to admit it into evidence, or will downplay, sidestep, or even ignore its utility. Judges have a difficult enough role balancing risk and proportionality, and are not being adequately assisted in this process when they are provided inadequate formulation or inappropriate or incomplete materials. Notes, references