Response to commentary: cross-examining risk "knowledge".

• Author: Maurutto, Paula
• Position: Response to articles in this issue p. 519 and 531

Proportionality, as stipulated in the 2003 Youth Criminal Justice Act (YCJA), sets out the parameters within which we examine the implications of embedding risk assessments within youth pre-sentence reports (PSRs). Our article raises questions for academic and legal professionals and, ultimately, judges, who may or may not elect to consider risk/need assessments in the determination of a sentence. The sentencing principles contained in section 38(2) stipulate that

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

and that

(e) subject to [the aforementioned] paragraph (c), the sentence must

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society. (emphasis added)

The YCJA is unequivocal in the priority afforded to proportionality. By contrast, rehabilitation, albeit important, is of less relevance to sentencing. We do not dispute the importance or impact of treatment and rehabilitative approaches in the management of offenders. Our concern is with whether the use of risk-assessment information at sentencing contravenes the principle of proportionality and/or disparity.

The "seriousness of the offence," the degree of harm caused, and the youth's "degree of responsibility" are central to proportionality, but not to the assessment of risk. Risk assessments are designed to identify risk factors and criminogenic needs that can be targeted through treatment in an effort to prevent, or more accurately, to minimize a predicted risk of re-offence. Risk introduces a future-oriented model, wherein punishment is determined on the calculation of risk scores and the predicted likelihood that the accused will recidivate. Risk scores may well be able to identify a group of offenders who are more likely to recidivate, but not everyone in the group will with certainty do so. Prediction of recidivism is not definitive. There is no absolute certainty that an offender will re-offend, or re-offend with the same degree of seriousness. In fact, our research indicates that risk assessments are more likely to target those most likely to breach conditions, a relatively minor criminal offence, and are less reliable in predicting who will commit a serious violent offence. Further, not all of the risk-assessment practices used in Canada rely on empirically tested tools (Hannah-Moffat and Maurutto 2003).

The prediction of risk in the medical context is quite distinct from in the criminal-justice sphere. In the medical context, where patients have the choice to determine their course of treatment, pre-emptive interventions may be the optimal course of action, even though there is no certainty of disease. By contrast, in the legal system, such pre-emptive intervention would contravene the YCJA, as well as our collective rights as set out in the Canadian Charter of Rights and Freedoms. Both sets of legislation restrict the ability of the courts to impose punishment on the anticipation of a threat or on the basis of an offender's criminogenic needs.

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