It is closing in on a decade since Pennsylvania legislators passed a law ordering the state Commission on Sentencing to develop a risk-assessment instrument — an algorithm that theoretically would make sentencing fairer, eliminate guesswork and judicial bias, and reduce incarceration.
At hearings across the state this week on the commission’s latest proposal, reform advocates, people affected by the justice system, lawyers, and lawmakers called it racially biased and inaccurate. They urged the commission to go back to the drawing board — or better yet, demolish the drawing board and scrap the project.
“Research has shown that this risk-assessment tool is not effective, but further fuels racial injustices,” State Rep. Stephen Kinsey, a Democrat representing parts of Germantown, told commission members, speaking on behalf of the Pennsylvania Legislative Black Caucus. “The initial mandate was to lower costs, mitigate over-incarceration, and divert those that deserve alternative forms of corrective action, such as substance-abuse-disorder treatment. To date, those ideals have not been met.”
Likening the risk-assessment tool to faulty autocorrect on a smartphone, Kinsey told the panel he intended to champion legislation to repeal the commission’s mandate.
Commission member and State Sen. Sharif Street said he’d explore doing the same.
“I, for one, believe there will probably need to be some examination of our mandate,” Street said. But, he hinted, that will also be a long road. “We have to gauge whether there is legislative appetite to remove or modify the mandate.”
The commission’s previous draft, published in April, was derided as amplifying racial biases that exist within the criminal justice system, which in Pennsylvania incarcerates black people at a rate nine times higher than white people.
“It was trained on data from the height of stop-and-frisk across the state. Its own data said it believed black people were 11 percent more criminal than white people as a base rate, which we categorically reject,” said Hannah Sassaman, an organizer with the Media Mobilizing Project.
She’s not impressed with the slew of adjustments the Sentencing Commission made to the instrument over the last six months: “Now, it predicts black people are 4 percent more criminal than white people.”
At least 18 states have adopted some form of risk assessment for use at sentencing, according to the National Center for State Courts. Philadelphia is also developing a similar tool to help determine whether people should be detained before trial, over the protests of reform advocates.
But Mark Bergstrom, executive director of the Sentencing Commission, said there’s nothing in use quite like the comprehensive instrument he’s been tasked with developing. He believes many of the concerns expressed at the hearings come down to a communication problem.
“The frustration I have is that what many people say they want as the outcome is in sync with what the commission is trying to do," he said. His goal is to provide more information to judges so they can provide appropriate and individualized sentences, including alternatives to prison. "The connection of ‘high risk’ with more incarceration is not our intent at all, but I understand that’s what people fear.”
The adoption of a risk-assessment tool at sentencing (and of this tool in particular) is opposed by the Philadelphia Bar Association, the Pennsylvania ACLU, the Philadelphia District Attorney’s Office, and the Defender Association. They warned the instrument could be misused or misinterpreted by judges, or, worse, substituted for individualized sentencing.
Critics noted that according to the Sentencing Commission’s own analysis, the instrument does well at identifying low-risk defendants. But when it calls someone high-risk, it’s right only about half the time.
“The current risk-assessment algorithm would exacerbate mass incarceration,” said Mark Houldin, policy director at the Defender Association of Philadelphia. “One reason for this is the disastrously low accuracy rate. When the tool says someone is ‘risky,’ it’s correct only 52 percent of the time. That’s barely more accurate than a coin flip.”
Those who’ve been personally affected by the justice system said they worry about sapping humanity from the process.
One is Clarise McCants, campaign director at Color of Change, an advocacy organization that organized 2,000 members to submit comments on the risk-assessment instrument. McCants’ mother was a victim of childhood sexual abuse by her mother’s boyfriend before giving birth at age 18. In despair over the continued abuse, her mother attempted a double murder-suicide, serving her two children drug-laced chocolate milk.
They all survived, and McCants' mother was arrested. But instead of the 20- to 40-year sentence she could have faced, a judge sentenced her to five years' probation and intensive mental-health treatment. Eventually, the children were reunited with their mother.
“As a result, we’ve gone on to live healthy and fortunate lives. We thrived because of my mother’s love and persistence. But had the judge seen my mother as just another number in the system, she would still be incarcerated today," McCants said.
If there isn’t sufficient legislative momentum to remove the mandate to create an instrument, civil rights lawyer Susan Lin suggested, it could be salvaged by using it only to divert people from prison into alternative programs.
In a statement to the board, Mayor Kenney called the current version flawed, but said he still believes in the concept of risk-assessment tools. “To be clear, I believe the purpose of the tool should be to help limit incarceration, and not result in the over-supervision or over-incarceration of Philadelphians. ... In its current state, the tool may cause the opposite and unintended effect."
Bergstrom said that for now the commission will press forward, per its mandate, though no action will be taken before the next quarterly meeting in March.
Until then, State Rep. Joanna McClinton, a Philadelphia Democrat and a member of the Sentencing Commission, said, she’ll be pushing to start over.
“We need to say this isn’t working because, at this point, even conservative stakeholders, even the DA’s association, does not support this. There are too many flaws with it. ... We need a new mandate.”