Youth Risk/Need Assessment: An Overview of Issues and Practices

5. Risk/Need and the Youth Criminal Justice Act (YCJA)

5. Risk/Need and the Youth Criminal Justice Act (YCJA)

"The obligation to assess, evaluate, and minimize risk is significantly different from the obligation to care and control, or to befriend and reintegrate" (Rose 1998:186).

5.1 Implications of YCJA on risk/need assessments

Given the potential for widespread misuse and misunderstanding of assessment results, the risk/need total scores should not be used in the determination of dispositions. The use of actuarial tools in sentencing could amount to "statistical justice" (Reichman 1986), wherein dispositions are determined on the basis of how closely a young offender matches some profile of likely offences rather than on an examination of the actual offence committed. The logic of risk/need assessments contradicts one of the main YCJA principles wherein "young persons are to be held accountable through interventions that are fair and in proportion to the seriousness of the offence". Risk/need scores are not a measure of the seriousness of an offence, nor do they predict potential for future serious offences. Nor is future crime relevant to proportionality (see Hudson 2001 for a discussion of justice, proportionality, due process, and risk).

The following are areas of the YCJA wherein decisions about the role and use of formal risk/need assessments need to be examined. Rather than propose solutions, the following outlines some of the issues pertaining to the use of risk/needs assessments at these stages.

5.2 Extrajudicial measures

The perceived advantage of using a risk/need assessment to facilitate decisions about the appropriateness and type of extrajudicial measures is that it could result in more consistent and efficient decisions. The recommended measure can be tailored to the needs of a particular youth. The suitability of current assessment tools for this purpose has not yet been established. It is difficult to conceive of how a risk/need assessment tool can be used to make reliable and valid determinations for a range of diverse decisions, which are based on diverse purposes, and sometimes competing criteria.

The use of risk assessments to determine the appropriateness of an extrajudicial measure for a youth shifts the criteria for diversion to the character and social circumstances of the youth and away from other offence-based criteria. Having police officers administer these tools to make these types of discretionary decisions raises a host of concerns about the appropriateness of these tools for this purpose. Concerns include the role of extrajudicial measures, the training of officers, the interpretation of the information contained in the tool, the tendency for net widening or net strengthening, the availability of programs, the use of this information in future court proceedings, and the legal representation of the youth. None of the questions on the YLS/CMI screening version being piloted by the Ottawa police to make extrajudicial determinations ask about the offence, the seriousness or degree of harm caused by the alleged offence, or the willingness of the victim or other community members to be involved.

There are many unresolved issues pertaining to the role of risk and need assessments in determining extrajudicial measures. A more detailed review of provincial practices is required to identify current practices and their impact on the number and type of youth entering the system.

5.3 Pre-trial detention

None of the jurisdictions currently use a risk/need assessment to make pre-trial detention decisions. Some respondents expressed concerns about the use of professional discretion to make these determinations. Using formal risk assessments were seen as more defensible in terms of justifying detention and the types of conditions imposed.

A number of issues were raised about the use of risk and need tools at this decision-making point. These include the accuser's legal rights, disclosure of offence related information in the absence of legal representation, the short time frame, the relevance of needs, and the availability of tools with short-term predictive validity. Pertaining to the last point, most available tools are not reliable measures of immediate (short-term) risk to the public or of flight. If risk assessments were considered at this stage, several methodological and legal issues would have to be resolved. Existing tools are not suitable for this type of decision.

5.4 Sentencing

Many of the probation respondents felt that their work with offenders, in particular the writing of pre-sentence reports (PSRs) may change under the new YCJA, but they were not sure how it would change. Some believed that there would be new and different sentencing options that they would be responsible for administering. Others anticipated changes in the types of youths they see under community supervision. More specifically, it was anticipated that the number of youths with histories of non-compliance on probation and more serious offenders would be in the community. Others felt that there would be considerable strain placed on community resources and thus additional programs would be required.

Current research suggests that PSRs are quite influential in judicial determinations of sentence and, increasingly, these reports are, to varying degrees, incorporating risk/need assessments.[24] Many of the respondents believed that risk/needs assessments, if conducted properly, would allow them to make better recommendations to judges. They emphasized that risk/need assessments provided them with standardized and defensible criteria that allowed them to be specific about the kinds interventions required. Many respondents believed that judges seriously considered the content and recommendations of the PSR prior to sentencing. One respondent felt the increased reliance on risk/need assessments would allow "judges to take the case plan and sentence accordingly". Such perceptions raise a number of questions about the relationship and roles of judges and probation officers; the purpose of the PSR, the content, suitability, and utility of youth workers' (implicit or explicit) recommendations for sentence; and, the choice and reliability of collateral contacts from whom information used to complete assessments is obtained.

Many of the above-mentioned concerns ought to be considered with respect to the following two sentencing options:

  • Intensive supervision and support order; and,
  • Intensive rehabilitation and custody and supervision order.

Given that these options are new, it is difficult to know how risk/need assessment information will be used in relation to this provision. It would be advisable to monitor this development to determine if or how such assessments are used, and whether youth receiving these sentences are classified as high or moderate risk.

5.5 Pre-sentence reports

Research seems to suggest that the judiciary rely on the contents in PSRs to craft sentences (Cole and Angus 2003). Thus the PSR is a significant document and the use of risk/needs assessments and the information/sources used to complete these assessments are of particular relevance.

With respect to the information contained in PSRs and the sources of information, respondents varied in their account of how they collected the information presented in reports and used to make recommendations. Most indicated that they relied on interviews with the youth and with collateral contacts (which typically include victims, teachers, and family members). However, collateral contacts may also pertain to information from other youth workers or institutions that have knowledge of the youth, or from the police report and in some cases child welfare agencies, program providers, and mental health professions (after formal consent is obtained). As one respondent noted, "I include everything I can get from schools, employers, victims, police, parents, guardians, foster parents, previous jail reports, previous probation reports, as well as the individuals themselves".

One of the authors of the YLS/CMI, Robert D. Hoge, cautions against the use of standardized instruments to dictate interventions. As he notes, "The danger exists that this instrument will be used to dictate decisions … This is not the intention behind the instrument. The YLS/CMI is designed to assist the profession in formulating a recommendation or case plan and not to dictate decisions" (Hoge 2001:30).

Most of the probation officers interviewed indicated that they included sentence recommendations in the PSRs. These recommendations ranged from recommending conditions of probation, which were linked to perceived needs, to recommendations for custody versus community dispositions. The presence of sentence recommendations are an issue that Cole and Angus (forthcoming:37-8) raise as a concern in terms of case law, legal criteria, and the "factual basis" of assertions (in terms of additional details of the case from the police or witnesses). In terms of case law, Cole and Angus (p. 38) note that the Nova Scotia Court of Appeal, in a leading case on the issue has categorically stated that "it is not part of the job … of those who prepare [PSRs] … to tell the court what sentence should be imposed".[25] Nevertheless, as Cole and Angus show, this "rule" is consistently ignored in practice as probation officers routinely make recommendations in PSRs, and this practice is encouraged in local policy.

While Cole and Angus (forthcoming:42-3) are sceptical of the role of risk assessment in PSRs and are cautious about the practice of making recommendations, they note "a PSR which attempts to explain criminal behaviour in terms linked to case supervision plans designed to reduce the risk factors for the future seems to us to be more fruitful than the kind of soft, unfocused "social histories" which unfortunately seem to characterize many of the PSRs submitted to sentencing judges. Such a focus also seems to us to be consistent with the kinds of inquires … trial judges should make before imposing optional conditions … ". Further, Cole and Angus anticipate that the Canadian judiciary will likely welcome the trend towards risk assessment.

The role that risk/need assessments play in shaping the content and recommendations contained in PSRs, the presentation of risk/need information and, finally, the role of rehabilitation versus other sentencing purposes, principles, and objectives need to be explored.

5.6 Rehabilitation

According to the YCJA, youth sentences ought to be proportionate, community-based, and use the least restrictive option. The YCJA sentencing guidelines also identify the importance of rehabilitation (in the above context). One of the reported advantages of risk/need assessments is their ability to assess areas of risk/need that can/should be intervened upon. In general, risk/need assessments are useful in organizing information about the offender and in systematically capturing the areas of need that are prudent rehabilitative targets. The difficulty is that there is a disjuncture between the individualized treatment logic of rehabilitation that underpins such assessments, and the legal notions of proportionality that focuses, not on the individual, but on the offence committed. The role and use of risk/need information to determine sentences need to be clarified.

5.7 Custody and reintegration

The use of risk and need assessments is related to reintegration decisions. The logic underpinning risk/need assessments is to identify the areas of intervention and to target those need areas through programs (community or institutional). In theory, there ought to be a continuity of programming from the institution to the community. To ensure compliance and continuity in case management, parole officials have tended to use additional conditions (or in the context of adult corrections, special conditions).[26] The number and type of conditions is thus linked to perceived needs and their ongoing management as well as to the minimization of risk to the public in terms of recidivism. This practice ought to be investigated further to determine the number and types of conditions applied to youth, the frequency and type of breaches of conditions, the circumstances of the breach, the reasons for returning the youth to custody, whether additional conditions unnecessarily intensify surveillance, and whether release is impeded by the availability of programs that fulfill the rehabilitative plan. Further, the tendency to focus on criminogenic needs often negates structural and systemic concerns and the youth's own perception of reintegration needs (Hannah-Moffat 2002).

  • [24] A recent paper by Cole and Angus (2003) reports that six Canadian jurisdictions are using risk assessment tools to compile adult presentence reports.
  • [25] R. v. Bartkow (1978) 1 C.R. 93d) S-36 (N.S.C.A.).
  • [26] The ongoing research, done by K. Hannah-Moffat, on parole illustrates this point.
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