Evaluating science outside the trial box: Applying Daubert to the Federal Sentencing Guidelines’ criminal history score Daniel A. Krauss ⁎ Department of Psychology, Claremont McKenna College, Claremont, 850 Columbia Ave, CA, USA Received 30 January 2004; received in revised form 3 June 2004; accepted 5 August 2004 Abstract A limited amount of research exists examining the ability of the Criminal History Score of the Federal Sentencing Guidelines (Guidelines) to achieve one of its most essential objectives: prediction of recidivism. Building on the work of Schopp [Schopp, R. (2001). Competency, condemnation, and commitment: An integrated theory of mental health law. Washington D.C.: American Psychological Association], it is suggested that the scientific admissibility framework and the underlying principles announced by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceutical [Daubert v. Merrell Dow Pharmaceuticals Inc., 507 U.S. 579, 113 S.Ct. 2786 (1993)] should be expanded beyond the constraints of the evidentiary admissibility phase of trial and should apply to legislative and administrative rules that have: a) an empirically testable purpose and b) a substantial impact on the rights of individuals. Such an analysis offers a useful mechanism for understanding the strengths and weaknesses of social science being used by legal institutions. Based upon a hypothetical Daubert analysis, the scientific validity of the Guidelines' Criminal History Score is assessed and demonstrated to be insufficient. The law and policy implications of this finding are discussed. © 2006 Elsevier Inc. All rights reserved. Keywords: Federal sentencing; Sentencing guidelines; Criminal history; Recidivism; Evidentiary admissibility 1. Introduction In the nineteen years since the Federal Sentencing Guidelines (hereinafter the Guidelines) promulgation by the United States Sentencing Commission and the seventeen years since their widespread implementation by U.S. courts (post-U.S. v. Mistretta (488 U.S. 361, 1989), 1 well over six hundred thousand federal defendants have been sentenced (United States Sentencing Commission Source Book, 2001). In fact, the federal prison systems' population of incarcerated offenders recently surpassed California's, and now represents the largest prison system in the United States (USSC, 2004a). The grid sentencing framework adopted by the United States Sentencing Commission determines criminal sentences based upon a combination of the seriousness of the offense committed by the defendant International Journal of Law and Psychiatry 29 (2006) 289 – 305 ⁎ Tel.: +1 909 607 8504; fax: +1 909 621 8419. E-mail address: dkrauss@mckenna.edu. 1 United States v. Mistretta, 488 U.S. 369, 119 SCT 1167 (1989) challenged the constitutionality of the Guidelines based upon separation of powers concerns, but the United States Supreme Court held that the creation of the Sentencing Commission and the Guidelines were not unconstitutional. Most recently, after acceptance but before publication of this article, the United States Supreme Court recently found the Guidelines unconstitutional based upon 6th amendment concerns, but upheld them as advisory rather than mandatory in federal sentencing decision, see United States v. Booker, 125 S.Ct. 738 (2005) and United States v. Fanfan, 125 S.Ct. 738 (2005). 0160-2527/$ - see front matter © 2006 Elsevier Inc. All rights reserved. doi:10.1016/j.ijlp.2004.08.009