Risk assessment in sentencing and plea bargaining: The roles of prosecutors and defense attorneys

Research on risk assessment in sentencing has focused heavily on the role of judges. Ignoring the role of other courtroom actors in the sentencing process, however, leaves unexamined the potentially significant effects on judicial decision making of arguments made by prosecutors and defense attorneys at sentencing hearings. Unduly focusing on judges also overlooks the vast majority of sentences arrived at through negotiated guilty pleas. We explored the extent to which considerations of risk are made among prosecutors and defense attorneys when advocating for given sentences in open court or during plea negotiations. We surveyed all prosecutors and defense attorneys in 14 judicial circuits in Virginia and found that most prosecutors and defense attorneys at least "sometimes" explicitly invoked actuarial risk estimates both at sentencing hearings and during plea negotiations. However, defense attorneys were much more likely than prosecutors to be averse to the use of risk assessment in either form of case disposition.