Cal. R. Standard 4.35
The risk/needs assessment instrument should be validated.
Cal. R. Ct. Standard 4.35
Advisory Committee Comment
Subdivision (d)(1)-(2). Although the results of risk/needs assessments provide important information for use by the court at sentencing, they are not designed as a substitute for the exercise of judicial discretion and judgment. The information should not be used as the sole basis of the court's decision, but should be considered in the context of all of the information received in a sentencing proceeding. If justified by the circumstances of the case, it is appropriate for the court to impose a disposition not supported by the results of a risk/needs assessment. (See State v. Loomis (2016) 371 Wis.2d 235, 266 ["Just as corrections staff should disregard risk scores that are inconsistent with other factors, we expect that . . . courts will exercise discretion when assessing a . . . risk score with respect to each individual defendant"].)
Subdivision (d)(4). Court and justice partners should understand any limitations of the particular instrument used to generate the results of a risk/needs assessment. (See State v. Loomis, supra, 371 Wis.2d at p. 264 [requiring presentence investigation reports to state the limitations of the instrument used, including the proprietary nature of that instrument, any absence of a crossvalidation study for relevant populations, and any questions raised in studies about whether the instrument disproportionately classifies minority offenders as having a higher risk of recidivism].) The Wisconsin court also required that all presentence investigation reports caution that risk/needs assessment tools must be constantly monitored and renormed for accuracy because of changing populations and subpopulations. (Ibid.) California courts should similarly consider any such limitations in the accuracy of the particular instrument employed in the case under review. (See ibid. ["Providing information to sentencing courts on the limitations and cautions attendant with the use of . . . risk assessments will enable courts to better assess the accuracy of the assessment and the appropriate weight to be given to the risk score"].)
Subdivision (d)(4)(D). Validating a risk/needs assessment instrument will increase its accuracy and reliability. Validation on a relevant population or subpopulation is recommended to account for differences in local policies, implementation practices, and offender populations. Ongoing monitoring and renorming of the instrument may be necessary to reflect changes in a population or subpopulation. Revalidation of the instrument is also necessary if any of its dynamic or static risk factors are modified.
Subdivision (e). When the court is considering whether to place a person on supervision at an original sentencing proceeding or after a violation of supervision, the results of a risk/needs assessment may assist the court in assessing the person's amenability to supervision and services in the community. But when the person is ineligible for supervision, or the court has otherwise decided not to grant or reinstate probation, the results of a risk/needs assessment should not be used in determining the period of incarceration to be imposed. (See State v. Loomis, supra, 371 Wis.2d at p. 256 [holding that risk/needs assessments should not be used to determine the severity of a sentence or whether a defendant is incarcerated]; Malenchik v. State (Ind. 2010) 928 N.E.2d 564, 573 ["It is clear that [risk/needs assessment instruments are neither intended] nor recommended to substitute for the judicial function of determining the length of sentence appropriate for each offender"].)
Subdivision (f). Risk/needs assessment instruments generally produce a numerical or descriptive "risk score" such as "high," "moderate," or "low" risk. It is critical that courts and justice partners understand the meaning and limitations of such designations. First, because risk assessments are based on group data, they are able to identify groups of high-risk offenders, not a particular high-risk individual. Second, in some assessment instruments, "risk" refers only to a generalized risk of committing a new offense, not to the seriousness of the subsequent offense (e.g., violent, sex, drug, or theft). Nor does "high risk" necessarily mean "highly dangerous." A high-risk drug offender, for example, may present a high risk that he or she will use drugs again, but does not necessarily present a high risk to commit a violent felony. Third, scientific research indicates that medium- and high-risk offenders may most benefit from evidence-based supervision and programs that address critical risk factors. Courts and probation departments should also consider how presentence investigation reports present risk assessment information. A report that merely refers to the defendant as "high risk" may incorrectly imply that the defendant presents a great danger to public safety and must therefore be incarcerated. Conversely, "low risk" does not necessarily mean "no risk."
Subdivision (g). An instrument's accuracy and reliability depend on its proper administration. Training and continuing education should be required for anyone who administers the instrument. Judges with sentencing assignments should receive appropriate training on the purpose, use, and limits of risk/needs assessments. (See Guiding Principle 4, Stakeholder Training, in Pamela M. Casey et al., Using Offender Risk and Needs Assessment Information at Sentencing: Guidance for Courts from a (National Working Group National Center for State Courts, 2011) pp. 21-22.)