EPIC - Algorithms in the Criminal Justice System

Algorithms in the Criminal Justice System

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Summary

Criminal justice algorithms—sometimes called “risk assessments” or “evidenced-based methods”—are controversial tools that purport to predict future behavior by defendants and incarcerated persons. These proprietary techniques are used to set bail, determine sentences, and even contribute to determinations about guilt or innocence. Yet the inner workings of these tools are largely hidden from public view.

Many “risk assessment” algorithms take into account personal characteristics like age, sex, geography, family background, and employment status. As a result, two people accused of the same crime may receive sharply different bail or sentencing outcomes based on inputs that are beyond their control—but have no way of assessing or challenging the results.

As criminal justice algorithms have come into greater use at the federal and state levels, they have also come under greater scrutiny. Many criminal justice experts have denounced “risk assessment” tools as opaque, unreliable, and unconstitutional. The Supreme Court is also considering whether to take a case on the use of a secretive technique to predict possible recidivism.

Background

"Risk assessment" tools are algorithms that use socioeconomic status, family background, neighborhood crime, employment status, and other factors to reach a supposed prediction of an individual's criminal 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.

Criminal justice 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 2016 investigation by ProPublica tested the COMPAS system adopted 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 stated that the basis of its future crime formula includes 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. Professor 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.

Professor 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)

The following table is based on a survey of state practices by EPIC.

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 "EPIC 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.

EPIC FOI Documents

EPIC obtained the following documents concerning criminal justice algorithms through state freedom of information requests.

Missouri

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)

Wisconsin

Resources

Legislation and Regulations

Sentencing Reform and Corrections Act of 2015 (a landmark sentencing reform bill which would have mandated 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

Nathan James, Risk and Needs Assessment in the Criminal Justice System, Congressional Research Service (Oct. 15, 2015)

Notable Cases

United States v. Booker, 125 S. Ct. 738 (2005)
Mistretta v. United States, 109 S. Ct. 647 (1989)
State v. Loomis, No. 16-6387 (U.S.) (Wisconsin case in which defendant has petitioned U.S. Supreme Court for certiorari)

Defendant's Brief (Dec. 4, 2015)
State's Brief (Jan. 19, 2016)
Defendant's Reply Brief (Feb. 4, 2016)
Memorandum Opinion (July 13, 2016)
Petition for Writ of Certiorari (Oct. 5, 2016)
Brief of Respondent Wisconsin (Jan. 27, 2017)

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

Melissa Hamilton, Risk-Needs Assessment: Constitutional and Ethical Challenges, Am. Crim. L. Rev. __ (forthcoming 2016)
Solon Barocas & Andrew D. Selbst, Big Data’s Disparate Impact, 104 Calif. Law Review 671 (2016)
Nicholas Scurich & John Monahan, Evidence-Based Sentencing: Public Openness and Opposition to Using Gender, Age, and Race as Risk Factors for Recidivism, 40 Law & Human Behavior 36 (2016)
Jennifer Skeem & Christopher Lowenkamp, Risk, Race, and Recidivism: Predictive Bias and Disparate Impact (March 7, 2016)
Gregory Cui, Evidence-Based Sentencing and the Taint of Dangerousness, 125 Yale Law Journal Forum 315 (2016)
John Monahan and Jennifer L. Skeem, Risk Assessment in Criminal Sentencing, Annual Rev. of Clinical Psychology (forthcoming) (Sept. 17, 2015).
Claire Botnick, Evidence-Based Practice and Sentencing in State Courts: A Critique of the Missouri System, 49 Washington University Journal of Law & Policy 159, 160 (2015)
Dawinder S. Sidhu, Moneyball Sentencing, 56 Boston College Law Review 671 (2015)
Jennifer E. Laurin, Gideon by the Numbers: The Emergence of Evidence-Based Practice in Indigent Defense, 12 Ohio State Journal of Criminal Law 325 (2015)
Melissa Hamilton, Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law, 47 Arizona State Law Journal 1 (2015)
Melissa Hamilton, Back to the Future: The Influence of Criminal History on Risk Assessments, 20 Berkeley Journal of Criminal Law 75, 76 (2015)
Melissa Hamilton, Risk-Needs Assessment: Constitutional and Ethical Challenges, 52 American Criminal Law Review, 231 (2015)
Shaina D. Massie, Orange Is the New Equal Protection Violation: How Evidence-Based Sentencing Harms Male Offenders, 24 William & Mary Bill of Rights Journal 521 (2015)
Bernard Harcourt, Risk as a Proxy for Race: The Dangers of Risk Assessment, 27 Federal Sentencing Reporter 237 (2015)
Sonja Starr, The New Profiling: Why Punishing Based on Poverty and Identity is Unconstitutional and Wrong, 27 Federal Sentencing Reporter 229 (2015)
John Monahan & Jennifer Skeem, Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning, 26 Federal Sentencing Reporter 158 (2014)
Sonja Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 60 Stanford Law Review 803 (2014),
Mark Olver, Keira Stockdale & J.S. Wormith, Thirty Years of Research on the Level of Service Scales: A Meta-Analytic Examination of Predictive Accuracy and Sources of Variability, Psychological Assessment (2013)
J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU Law Review 1329 (2011)
Danielle Citron, Technological Due Process, 85 Washington University Law Review 125 (2008)

Other resources

Danielle Citron, (Un)Fairness of Risk Scores in Criminal Sentencing, Forbes (July 13, 2016)
Luis Daniel, Guest post: The dangers of evidence-based sentencing, MathBabe (Oct. 21, 2014)

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)