Commentary on Risk Assessment

I am pleased both that the Canadian Journal of Criminology and Criminal Justice has undertaken a special issue on risk assessment and that I have been asked to provide a brief commentary on the articles that are being published on that subject.

Without intending to offend, I wish to make a preliminary point that may have some relevance to my commentary. There is, in my view, a natural tension between, on the one hand, the empirical, social-science approach that underlies much of the research about risk assessments in the fields of cognitive psychology, sociology, and criminology, and, on the other hand, the approach taken to such subjects by lawyers. Although law (and its concomitant pursuit of justice) has sometimes been described as a science, it is better thought of as an art – and a very imperfect one at that. While the accumulation of evidence is common to all of these disciplines, law assesses evidence in a context bounded by values, rights (particularly constitutional rights), rules, and principles that are broader and, therefore, because of rules concerning the inadmissibility of certain types of evidence, more constraining than those governing scientific inquiry. It is not surprising, then, that lawyers exhibit considerable scepticism toward the empirical claims of instruments such as risk assessments.

In providing this commentary, I will, therefore, be doing so through the lens of those legal concepts. If nothing else, a dialogue between our disciplines can potentially lead to a better understanding of each other's work. At best, ways may be found to bridge some of the gaps that exist between these professions in order that understanding of the risk of danger posed by some human beings and of the assessment of that risk can be advanced.

I have been asked to comment upon three articles that appear in this issue: D.A. Andrews and Craig Dowden, "The Risk–Need– Responsivity Model of Assessment and Human Service in Prevention and Corrections: Crime-Prevention Jurisprudence"; Paula Maurutto and Kelly Hannah-Moffat, "Understanding Risk in the Context of the Youth Criminal Justice Act"; and David P. Cole, "The Umpires Strike Back: Canadian Judicial Experience with Risk Assessment Instruments." I have placed them in this order because, on my reading of them, they rank in order of most supportive to least supportive of the use of risk assessments. In large measure (and to reveal my disciplinary bias), the ranking is a reflection of the extent to which legal principles and analysis are incorporated. The Cole article is very much in the legal tradition, and the Maurutto and Hannah-Moffat article is a blend of legal and social-science analysis. Although referring to legal concepts and principles, the Andrews and Dowden article is more oriented to the social-science approach.

In describing the Andrews and Dowden article as the most in favour of risk assessment, I do not suggest that these authors have ignored difficulties in methodology and practice. They situate the use of risk assessments within the theoretical approach known as the personal, interpersonal, and community reinforcement (PIC-R) perspective and almost immediately narrow the focus of such assessments to the prevention of crime, rather than looking more broadly at therapy for offenders. Because of this focus, they also advocate determining criminogenic needs as opposed to non-criminogenic needs. This approach may be seen as a partial answer to the concerns expressed in the other two papers that the application of risk assessments may threaten to supersede the constitutional and legal requirements of proportionality in sentencing. Thus, Andrews and Dowden espouse what they call "crime-prevention jurisprudence" as marrying the law respecting just sanctions with the reduction of offending through Risk–Need–Responsivity (RNR) – identifying dynamic risk factors and criminogenic needs through proper assessments and responding with strategies attuned to the learning ability, motivation, and personality of an offender. This must always be attempted through interventions that are ethical, legal, just, and normative.

The emphasis of the intervention should be on "high-quality relationships . . . characterized by respect, understanding, care, and positive expectations." This view of relationships is reminiscent of the interdependency associated with restorative justice,¹ although the focus of these authors...