ABSTRACT
Sentences are usually based on a combination of desert and risk. Courts and scholars have produced tens of thousands of pages analysing the boundaries and nuances of desert, but only Emeritus Professor McSherry and a handful of others have acknowledged the need to develop a jurisprudence of risk. This is unfortunate not only as a conceptual matter but because, properly framed, determinations of risk can be a potent means of reducing incarceration rates. The dearth of legal energy spent on the meaning of risk is explicable in part by the fact that ‘dangerousness’ has traditionally been difficult to quantify, and thus commentators were forced to make vague references to the ‘likelihood’ of a given individual committing an unspecified type of harm within the ‘foreseeable future’. The advent of risk assessment instruments provides the law with an opportunity to be both more specific about the meaning of risk and more attentive to the accuracy of claims about it. This chapter will assume that sentences may be based, at least in part, on risk, and that risk ought to be determined in the most accurate manner possible. It will then summarise what a jurisprudence of risk informed by modern risk assessment could look like, building upon the author’s book Just Algorithms: Using Science to Reduce Incarceration and Inform a Jurisprudence of Risk. It will also bring an American perspective to the volume.
