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What is risk assessment at sentencing and how is it being used?

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Well isn’t that a great question, what is risk assessment? That is a $100 million question here in the United States. So there are jurisdictions around Pennsylvania that have started utilizing court ordered risk assessments to determine what somebody’s sentence should be. Pennsylvania is looking at it, they have not quite gotten around to utilizing or ordering it, or requiring it for serious offenses. But we are one vote away from that happening and the Pennsylvania Criminal Defense Lawyer Association is fighting vehemently to stop it. And you might sit there going why, why wouldn’t you want a risk assessment in cases in determining sentencing? Well, because sentencing is a multifactored or multifaceted process. And it’s an important process. It’s not a throwaway process when somebody is getting sentenced. It’s important to create a human being when you go to sentencing. What do I mean by that? Like I tell people to the prosecutor and even to the judge to some extent you’re just a number. Your transcript number 123 of 2019. As a defense attorney, you’re a human being. I’ve learned about you. I know about your family. I know what your dreams are. I know what your goals are. I know what you’ve done to try and help yourself.

And so, it’s my job to advocate that. And what happens with these risk assessments is this risk assessor comes in who’s paid by the commonwealth or paid by the court spends maybe an hour or two hours with you, and their conclusions are going to have a major impact on what sentence you receive. That’s not what you want. You want the experts that you hire. You want people that are part of your team to present to the judge. If the commonwealth wants to present something to the judge as well, great, but to force a person to undergo a risk assessment can be very dangerous and a slippery slope. Because what happens is it kind of take the onerous off the judge and I think that’s why judges like it because they can sit there and go back and be like well, the risk assessment says they’re a high risk so we should send them to a high sentence. Well that’s not fair, you’re sending them to what they were convicted of, you know what they did, we’re not a pre-crime country. What a risk assessment is basically saying is we think you’re really likely to commit crimes so we’re going to send you to a higher sentence. That’s ridiculous and to me unconstitutional in every way imaginable.

Philadelphia, PA criminal defense lawyer Joseph Lesniak explains the process of risk assessment at sentencing and why he’s against it.

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