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(Photo: Joe Raedle/Getty Images)
Dozens of people packed into a Philadelphia courtroom on June 6th to voice their objections to a proposed criminal justice algorithm. The algorithm, developed by the Pennsylvania Commission on Sentencing, was conceived of as a way to reduce incarceration by predicting the risk that a person would pose a threat to public safety and helping to divert those who are at low risk to alternatives to incarceration.
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But many of the speakers worried the tool would instead increase racial disparities in a state where the incarceration rate of black Americans is nine times higher than that of white people. The outpouring of concern at public hearings, as well as from nearly 2,000 people who signed an online petition from the non-profit Color of Change, had a big effect: While the sentencing commission had planned to vote June 14th on whether to adopt the algorithm, members decided to delay the vote for at least six months to consider the objections and to solicit further input.
Algorithms that make predictions about future behavior based on factors such as a person's age and criminal history are increasingly used—and increasingly controversial—in criminal justice decision-making. One of the big objections to the use of such algorithms is that they sometimes operate out of the public's view. For instance, several states have adopted a tool called COMPAS developed by the company Northpointe (now called Equivant), which claims the algorithm is proprietary and refuses to share crucial details of how it calculates scores.
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In a striking contrast, the Pennsylvania sentencing commission has been very transparent. Legislation passed in 2010 tasked the commission with developing a risk assessment instrument for use by judges at sentencing "as an aide in evaluating the relative risk that an offender will reoffend and be a threat to public safety," and to help identify candidates for alternatives to incarceration. Since 2010, the commission has released more than 15 reports detailing the development of the algorithm and has held 11 public hearings to invite feedback. The commission has also altered its proposal over time in response to the community's input. For example, the Defender Association of Philadelphia and other organizations argued in 2017 that the use of past arrest record as an input factor would be likely to exacerbate racial bias, and this concern was a factor in the commission's decision to switch to using convictions rather than arrests.
But advocates still have concerns about other elements of the algorithm. For instance, the commission found that predictions as to who was at high risk to be re-arrested for a violent crime (a "crime against a person") had just 18 percent accuracy and so decided not to rely on this information. Instead, the instrument predicts general "recidivism," defined as re-arrest on any misdemeanor or felony charge in Pennsylvania within a three-year period, or for recommitment to the Department of Corrections for a technical violation of parole. (The exception is the few cases where a person is given a low risk score for crime against a person but high risk for general recidivism, in which case both scores would be shown.)
There is widespread agreement that the commission deserves a lot of credit here. It's rare to see designers of a criminal justice algorithm lay out the details, including the design process, in so much detail. (By comparison, basic information such as the inputs used in COMPAS remain out of public view, after a lawsuit in Wisconsin unsuccessfully challenged its use at sentencing as a violation of the right to due process.) Mark Houldin, policy director at the Defender Association of Philadelphia, said: "The Commission's approach of publishing reports on each step is really great, and any jurisdiction that is seeking to adopt a tool like this should do exactly that. If the math, assumptions, and the decisions aren't transparent, there is no way to allow stakeholders and the community to have a say."
Even so, Houldin doesn't think the proposed algorithm should be used at all. Given that the commission found it couldn't predict risk of violent re-arrest with reasonable accuracy, criminal defense attorney Marni Snyder and other members of the Risk Assessment Task Force (formed by Snyder and Democratic state Representative Brian Sims) say that the commission, along with the legislature, should have reconsidered whether to propose the algorithm. Nyssa Taylor, criminal justice policy counsel for the American Civil Liberties Union of Pennsylvania, says that it is also extremely problematic that the definition of recidivism includes technical violations of parole—those in which no new crime is committed, like missing curfew and not notifying an officer of a change of address. She pointed out that Pennsylv