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Commonwealth v. Redacted

Superior Court of Massachusetts, Essex

April 7, 2016

Commonwealth
v.
Redacted No. 133284

          April 12, 2016, Filed

          MEMORANDUM AND ORDER REQUIRING DEFENDANT TO, PENDING SENTENCING, SUBMIT TO OHIO RISK ASSESSMENT SYSTEM (ORAS) TESTING

          John T. Lu, Associate Justice.

         On April 1, 2016, a jury found the defendant guilty of two counts of assault and battery pursuant to G.L.c. 265, § 13A(b)(1). On that day, the court ordered the defendant, pending sentencing, to undergo full-scale Ohio Risk Assessment System (" ORAS") testing. During this testing, the defendant may exercise his Fifth Amendment rights to not answer certain questions, and may also have his attorney present.[1] The Court takes this opportunity to provide further reasoning for its order.

          The ORAS utilizes seven categories of questions to assess an individual: (1) criminal history, (2) education, employment, and financial situation, (3) family and social support, (4) neighborhood problems, (5) substance use, (6) peer associations, and (7) criminal attitudes and behavioral patterns; subsets of neighborhood problems are " high crime area" and " drugs readily available in neighborhood." [2] At the conclusion of the assessment, an individual receives a score in each of the categories, as well as an overall assessment classification of either " high, " " moderate, " or " low" risk, with respect to the individual's likelihood of recidivism. Nevertheless, in light of the ongoing debate over the utility of data-driven systems in sentencing criminal defendants, the court acknowledges that the ORAS results are not singularly determinative of a sentence that the court imposes, but serve as just one factor for the court's consideration in imposing sentencing.

         The court strives to impose a sentence that is proportional to the crime(s) committed, and that achieves a balance between the two competing sentencing philosophies: utilitarianism and retributivism. Under the utilitarian end of the spectrum, a court will impose a sentence as a means to punish an individual in order to protect society, promote deterrence, and rehabilitate the individual.[3] On the other hand, a retributivist approach seeks to match a sentence to the individual's moral culpability and responsibility.[4] These two philosophies also subsume various theories, such as retribution, deterrence, and rehabilitation, all important considerations for striking the appropriate balance in sentencing. Whether the use of data-driven or risk-assessment systems falls along the utilitarian-retributivist continuum is unsettled, but may indeed skew towards a utilitarian approach.[5]

         While utilizing data-driven and evidence-based analyses, like the ORAS, is not foreign to the criminal justice system, applications have traditionally, and successfully, been utilized on back-end applications, such as guiding parole boards' decisions, rather than on front-end applications, such as sentencing decisions; however, a number of jurisdictions are starting to take these data-driven analyses into account in sentencing. Using risk assessments and data-driven systems has abundant potential to not only make our corrections system more effective, individualize the administration of justice and reduce costs, but also deter recidivism.[6] Based in social science, " [c]riminological meta-analysis has identified fifteen key variables--encompassed within the seven categories of the ORAS--that are significantly related to recidivism: 1) criminal companions, (2) antisocial personality, (3) adult criminal history, (4) race, (5) pre-adult antisocial behavior, (6) family rearing practices, (7) social achievement, (8) interpersonal conflict, (9) current age, (10) substance abuse, (11) intellectual functioning, (12) family criminality, (13) gender, (14) socio-economic status of origin, and (15) personal distress.[7]

          Incorporating a data-driven approach to sentences is attractive to the court for its inherent utility for a number of reasons. Relying on data-based tools is consistent with the court's historical reliance on empirical approaches, such as its use of the Sentencing Guidelines.[8] Using a risk assessment instrument, in contrast to a subjective clinical evaluation, further provides an objective estimate of risk of re-offense because it is the product of mathematical scores that classify an individual as having either a high, moderate or low risk of reoffending; it is also purportedly more effective in forecasting recidivism than clinical assessments.[9] These risk assessments, in theory, yield consistent and reliable results regardless of the individual conducting the assessment.[10] Judicial efficiency is also supported because risk assessment testing provides all judges with identically reported data.[11] Finally, risk assessment tests help to reduce the imposition of excessive punishment, which in turn results in reduced incarceration, saved taxpayer monies, and reduced damage to individual offenders, their families, and communities.[12]

         Nevertheless, the court is aware of the potential risks, unintended consequences, and prejudicial effects that may occur by incorporating risk assessments and other data-driven systems into sentencing. As former Attorney General Eric Holder has cautioned, with respect to risk assessments,

[. . .] Although these measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice. By basing sentencing decisions on static factors and immutable characteristics--like the defendant's education level, socioeconomic background, or neighborhood--they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.
Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place. Equal justice can only mean individualized justice, with charges, convictions, and sentences befitting the conduct of each defendant and the particular crime he or she commits.[13]

          Generally speaking, the court is mindful that constitutional or statutory limitations--race, sex, religion, socio-economic status, for example--may forbid consideration of certain traits that are the subject of risk-assessment questions.[14] Additionally, certain traits that the ORAS seeks to consider may not be indicative of individual conduct, but rather a larger group of similar individuals.[15] Valid concerns may arise about whether the traits elicited by the assessment truly reflect an individual's ability to reduce his future likelihood of recidivating because they discount an individual's potential to develop over time.[16]

         Under the circumstances in this case, however, the benefits of having the defendant undergo the ORAS for consideration during his sentencing outweigh the potential consequences, and the court is comfortable subjecting the defendant to full-scale testing with safeguards--allowing the defendant to assert Fifth Amendment rights by refusing to answer certain questions and having his attorney present--in place.

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