Algorithms in the Criminal Justice System

Summary

Evidence-based risk assessments predict future behavior by analyzing statistical data. In the criminal justice system, risk-assessment algorithms use data about defendants including their criminal history (e.g. previous offenses, failure to appear in court, violent offenses, etc.) or socio-demographic characteristics (e.g. age, sex, employment status, drug history) to then predict the person’s risk of recidivism or risk of failing to appear when on bail. Such predictions are based on average recidivism rates for the group of offenders that share the defendant’s characteristics. The algorithms are becoming increasingly prevalent and the Justice Department’s National Institute of Corrections encourages the use of the assessments at every stage of the criminal justice process. But many have questioned the underlying data, the reliability of the outcomes as well as defendants’ lack of opportunity to challenge the results.

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Background

Risk assessment tools are algorithms that use variables including socioeconomic status, family background, level of neighborhood crime, and employment status to predict an individual’s recidivism risk, either on a scale from “low” to “high” or with specific percentages. See Wisconsin’s COMPAS risk assessment questionnaire, from ProPublica. In 2014, then-U.S. Attorney General Eric Holder called for the U.S. Sentencing Commission to study the use of algorithms in courts, concerned that the scores may be a source of bias. At the same time, the Justice Department expressed concern about the use of factors such as education levels, employment history, family circumstances, and demographic information. While the Sentencing Commission has studied the recidivism risk for federal offenders, it has not commissioned a study of risk scores.

Predictive algorithms are used across the country, but the specific tools differ by state or even county. In addition, because such algorithms are proprietary, they are not subject to state or federal open government laws. Jurisdictions have generally used one of three main systems, or adapted their own version of each: Correctional Offender Management Profiling for Alternative Sanctions (COMPAS), Public Safety Assessment (PSA) and Level of Service Inventory Revised (LSI-R). COMPAS, created by the for-profit company Northpointe, assesses variables under five main areas: criminal involvement, relationships/lifestyles, personality/attitudes, family, and social exclusion. The LSI-R, developed by Canadian company Multi-Health Systems, also pulls information from a wide set of factors, ranging from criminal history to personality patterns. Using a narrower set of parameters, the Public Safety Assessment, developed by the Laura and John Arnold Foundation, only considers variables that relate to a defendant’s age and criminal history.

A recent investigation by ProPublica tested the COMPAS system used by the state of Florida, using the same benchmark as COMPAS, a likelihood of re-offending in two years. ProPublica found that the formula was particularly likely to flag black defendants as future criminals, labeling them as such at almost twice the rate as white defendants. In addition, white defendants were labeled as low risk more often than black defendants. But the investigators also found that the scores were unreliable in forecasting violent crime: only 20 percent of the people predicted to commit violent crimes actually went on to do so. When considering a full range of crimes, including misdemeanors, the correlation was found to be higher but not exceedingly accurate. Sixty-one percent of the candidates deemed liked to reoffend were arrested for any subsequent crimes within two years. According to ProPublica, some miscalculations of risk stemmed from inaccurate inputs (for example, failing to include one’s prison record from another state), while other results were attributed to the way factors are weighed (for example, someone who has molested a child may be categorized as low risk because he has a job, while someone who was convicted of public intoxication would be considered high risk because he is homeless).

Prediction Fails Differently for Black Defendants

WHITE AFRICAN-AMERICAN
Labeled Higher Risk, But Didn't Re-Offend 23.5% 44.9%
Labeled Lower Risk, Yet Didn't Re-Offend 47.7% 28.0%
Source: ProPublica

COMPAS is one of the most widely used algorithms in the country. Northpointe published a validation study of the system in 2009, but it did not include an assessment of predictive accuracy by ethnicity. It referenced a study that had evaluated COMPAS’ accuracy by ethnicity, which reported weaker accuracy for African-American men, but claimed the small sample size rendered it unreliable. Northpointe has not shared how its calculations are made, but has provided that the basis of its future crime formula include factors such as education levels and whether a defendant has a job. Many jurisdictions have adopted COMPAS, and other risk assessment methods generally, without first testing their validity.

Defense advocates are calling for more transparent methods because they are unable to to challenge the validity of the results at sentencing hearings. In Technological Due Process, Danielle Citron argues that because the public has no opportunity to identify problems with troubled systems, it cannot present those complaints to government officials. In turn, government actors are unable to influence policy.

Unanswered Questions

  • How much should judges rely on these algorithms?
  • Some argue that risk assessment should be limited to probation hearings or pre-trial release and not used in sentencing at all. In fact, the COMPAS system specifically was created, not for use in sentencing, but rather to aid probation officers in determining which defendants would succeed in specific treatment types. Others caution against overreliance in sentencing, which may be a natural tendency when given data that appears to be based on concrete, reliable calculations. At least one judge has set aside an agreed upon plea deal and given a defendant more jail time because of the defendant’s high risk assessment score. Judge Babler in Wisconsin overturned the plea deal that had been agreed on by the prosecution and defense (one year in county jail with follow-up supervision) and imposed two years in state prison and three years of supervision after he saw that the defendant had high risk for future violent crime and a medium risk for general recidivism.

    In Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, Sonja Starr argues that risk assessment results represent who has the the highest risk of recidivism, but the question most relevant to judges is whose risk of recidivism will be reduced the most by incarceration. Therefore, the consideration of risk in the abstract in sentencing may not advance the goal of deterrence. In addition, the recidivism rate produces a risk score within a particular period (ex: 2 years) from the time of release or from the sentence of probation. It does not convey information about the amount of crime one may commit if given one length of incarceration over another (ex: 2 years rather than 5 years). Starr rejects the assumption that incarcerating those who are considered riskiest will prevent more crimes as an oversimplification, because this view does not consider the effect of crimes undertaken by other individuals, nor that incarceration may make someone who is already risky even more dangerous by increasing their risk of recidivism.

  • What factors should be considered?

    Factors such as demographic, socioeconomic background and family characteristics may serve as a proxy for race. Because these variables are highly correlated with race, they will likely have a racially disparate impact. In addition, because of de facto segregation and the higher crime rate in urban neighborhoods, including neighborhood crime rates will further compound the inequality. As a public policy matter, Starr argues that risk assessment factors based on demographic, socioeconomic background and family characteristics may not serve its intended goal of reducing incarceration because mass incarceration already has a racially disparate impact, which means that risk assessment algorithms produce higher risk estimates, all other things equal, for subgroups whose members are already disproportionately incarcerated.

    Another arguable flaw with the input questions is that the consideration of employment history and financial resources result in extra, unequal punishment of the poor which may violate the equal protection clause, based on the precedent case Bearden v. Georgia in which the Supreme Court rejected Georgia’s argument that poverty was a recidivism factor that justified additional incapacitation. To prevent perpetuating a racially disparate impact, advocates are arguing for a narrow range of questions, such as strictly based on past or present criminal behavior, or an individual assessment of a defendant’s conduct, mental states, and attitudes.

  • Do proprietary algorithms violate a defendant's right to due process?

    Since the specific formula to determine risk assessment is proprietary, defendants are unable to challenge the validity of the results. This may violate a defendant’s right to due process. The use of COMPAS in sentencing has been challenged in Loomis v. Wisconsin as a violation of the defendant’s right to due process on two grounds. The first part of the challenge is that the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity. The state does not dispute that the process is secret and non-transparent, but contends that Loomis fails to show that a COMPAS assessment contains or produces inaccurate information. Second, Loomis argues that the algorithmic is unconstitutional because of the way it considers gender. COMPAS has a separate scale for women and men, so all other factors being equal, assessment results will differ based on gender alone.

    Risk Assessment Information (state-by-state)

    STATE USE/TYPE (if known) Has the state conducted a validity study?
    Alabama Yes. Ala. Stat. § 12-25-33(6) unknown
    Alaska Does not use, but it has been recommended Unknown
    Arizona Public Safety Assessment - for determining pretrial release unknown
    Arkansas Likely state-specific (Parole Risk Assessment Tool) unknown
    California (Sample risk assessment documents from San Francisco, and Napa County) California Static Risk Assessment Instrument (CSRA) - adapted from Washington’s LSI-R Yes
    Colorado (sample risk assessment documents) LSI-R - required in pre-sentencing report Yes
    Connecticut Salient Factor Score - used by parole board Yes
    Delaware LSI-R Unknown
    Florida COMPAS Yes (for Broward County)
    Georgia State-based practice part of the Georgia Prisoner Reentry Initiative unknown
    Hawaii LSI-R Unknown
    Idaho SB 1357 incorporates risk assessments at sentencing that authorize alternatives to incarceration for low risk defendants Unknown
    Illinois Selected the Service Planning Instrument developed by Orbis Partners to be used across the criminal justice system; currently LSI-R is being used in the probation system n/a
    Indiana (sample risk assessment documents) Indiana Risk Assessment System at sentencing Yes
    Iowa LSI-R recommended for sentencing unknown
    Kansas Used in parole hearings unknown
    Kentucky Sentencing (Ky. Rev. Stat. Ann. § 532.007(3)) unknown
    Louisiana LARNA (for inmates) - recommended to expand to parole board unknown
    Maine Yes, for sex offenders - recommended for sentencing unknown
    Maryland Recommended for use in sentencing, engaging in a feasibility study none
    Massachusetts For sex offenders unknown
    Michigan COMPAS unknown
    Minnesota for sex offenders, recommended for use at sentencing unknown
    Mississippi used in sentencing unknown
    Missouri uses state-specific instrument
  • Missouri Sentencing Advisory Commission (MOSAC) Risk Score: Validation Study (published in 2009 MOSAC Biennial Report)

  • Missouri Board of Probation and Parole Risk Assessment (validation studies, policies and procedures)
  • Montana Parole board uses the Montana Offender Reentry and Risk Assessment tool unknown
    Nebraska (sample assessments) LS/CMI at sentencing yes
    Nevada used by parole board unknown
    New Hampshire New Hampshire SB500 (mandating the use of risk/needs assessments to inform decisions about the length of active supervision for all offenders on probation and parole) n/a
    New Jersey used by parole board unknown
    New Mexico Uses COMPAS prior to arraignment unknown
    New York required by parole board unknown
    North Carolina State-specific tool used for probation and for prisoners unknown
    Ohio Uses Ohio Risk Assessment System, OHIO REV. CODE ANN. § 5120.114 (mandating the adoption of a new unified risk assessment tool for use in sentencing as well as for parole and other corrections purposes) yes
    Oklahama Oklahoma Criminal Procedure Statute § 22-988.17 requires the use of LSI-R for anyone eligible for alternative sentencing yes
    Oregon (sample assessments) Public Safety Checklist for Oregon yes
    Pennsylvania 42 PA. CONS. STAT. § 2154.7 (ordering the sentencing commission to develop a risk assessment tool for sentencing use) yes
    Rhode Island recommended for probation n/a
    South Carolina used in probation and parole supervision, and in parole release decisions unknown
    South Dakota used in parole hearings and prisons unknown
    Tennessee used in sentencing unknown
    Texas (sample assessments) Texas Risk Assessment System unknown
    Utah LS/RNR (Risk, Need and Responsively Assessment) validation study for pretrial release risk
    Vermont SB 295 authorizes the use of risk assessments and clinical screenings at every stage of the criminal justice system unknown
    Virginia
  • State-specific tools for sentencing

  • State-specific tool for pre-trial services
  • Re-Validation of the Nonviolent Offender Risk Assessment Instrument

  • 2012 Virginia Criminal Sentencing Commission Annual Report

  • 2001 Virginia Criminal Sentencing Commission Annual Report

  • Offender Risk Assessment in Virginia: A Three-Stage Evaluation

  • Assessing Risk Among Sex Offenders in Virginia
  • Washington Uses LSI-R, WASH. REV. CODE § 9.94A.500 (requiring the court to consider risk assessment reports if they’ve been done) unknown
    West Virginia Probation officers must conduct risk assessment tests; Prior to discharging certain sex offenders, a risk assessment test must be performed to determine their risk of risk offending; risk assessment not used in sentencing (2013 governor’s report), for LSI/CMI
    Wisconsin (sample assessment documents) COMPAS See "FOIA Documents" below
    Wyoming COMPAS for prisoners unknown

    EPIC's Interest

    EPIC has a strong interest in open government. Public disclosure of this information improves government oversight and accountability. It also helps ensure that the public is fully informed about the activities of government. EPIC routinely files lawsuits to force disclose of agency records that impact critical privacy interests.

    EPIC also has a strong interest in algorithmic transparency. Secrecy of the algorithms used to determine guilt or innocence undermines faith in the criminal justice system. In support of algorithmic transparency, EPIC submitted FOIA requests to six states to obtain the source code of "TrueAllele," a software product used in DNA forensic analysis. According to news reports, law enforcement officials use TrueAllele test results to establish guilt, but individuals accused of crimes are denied access to the source code that produces the results.

    FOIA Documents

    Resources

    Legislation and Regulations

    • Sentencing Reform and Corrections Act of 2015 (a landmark sentencing reform bill currently pending in Congress would mandate the use of such assessments in federal prisons)
    • Modal Penal Code: Sentencing § 6B.09 (recommending the implementation of recidivism based actuarial instruments in sentencing guidelines)

    Government Studies

    Notable Cases

    • United States v. Booker, 125 S. Ct. 738 (2005)
    • Mistretta v. United States, 109 S. Ct. 647 (1989)
    • State v. Loomis, No. 2015AP157-CR., 2015 WL 5446731 (Wis. Ct. App. Sept. 17, 2015) (Wisconsin case certified by the court of appeals to the Wisconsin Supreme Court)
    • Doe v. Sex Offender Registry Board, 466 Mass. 594, 999 N.E.2d 478 (2013) (holding that the Sex Offender Registry board arbitrarily ignored scientific evidence that female offenders generally pose a much lower risk of re-offense; SORB was empowered to consider any useful information including scientific evidence introduced by offender in arriving at a classification decision, and authoritative evidence was introduced suggesting that establish risk assessment guidelines, developed from studies of male offenders, could not predict accurately the recidivism risk of a female offender, and that such risk could not be evaluated without examining the effect of gender)
    • Malenchik v. State, No. 79A02-0902-CR-133 (Ind. Ct. App. June 5, 2009) (holding that it was not improper for the trial court to take into consideration a defendant’s LSI-R score at sentencing)
    • In re CDK, 64 S.W.3d 679 (Tex. App. 2002) (holding that admitting an assessment report on a father’s sexual deviancy as expert witness testimony was an abuse of discretion because the plaintiff did not provide how the formulas were derived and whether they have ever been subjected to analysis or testing.

    Academic Articles

    Other resources

    Documents and Reports

    • Sample COMPAS risk assessment questionnaire - Wisconsin's 137 question risk assessment
    • Sample sentencing reports judges receive that includes risk assessment results
    • Jennifer Elek, Roger Warren & Pamela Casey, Using Risk and Needs Assessment Information at Sentencing: Observations from Ten Jurisdictions, National Center for State Courts’ Center for Sentencing Initiatives
    • Tara Agense & Shelley Curran, The California Risk Assessment Pilot Project: The Use of Risk and Needs Assessment Information in Adult Felony Probation Sentencing and Violation Proceedings, Judicial Council of California Operations and Programs Division Criminal Justice Services (December 2015)

    News

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    Jerry Kang and Alan Butler