Associated Incidents
Although crime rates have fallen steadily since the 1990s, rates of recidivism remain a factor in the areas of both public safety and prisoner management. The National Institute of Justice defines recidivism as “criminal acts that resulted in rearrest, re-conviction or return to prison with or without a new sentence,” and with over 75 percent of released prisoners rearrested within five years, it’s apparent there’s room for improvement. In an effort to streamline sentencing, reduce recidivism and increase public safety, private companies have developed criminal justice algorithms for use in the courtroom. These tools — sometimes called “risk assessments” — aim to recommend sentence length and severity specific to each defendant based on a set of proprietary formulae. Unfortunately, the algorithms’ proprietary nature means that neither attorneys nor the general public have access to information necessary to understand or defend against these assessments.
There are dozens of these algorithms currently in use at federal and state levels across the nation. One of the most controversial, the Correctional Offender Management Profiling for Alternative Sanctions or COMPAS, made headlines in 2016 when defendant Eric Loomis received a six-year sentence for reckless endangerment, eluding police, driving a car without the owner’s consent, possession of firearm, probation violation and resisting arrest — a sentence partially based on his COMPAS score. Loomis, a registered sex offender, challenged the verdict, claiming COMPAS violated his constitutional right of due process because he could not mount a proper challenge. His argument was two-fold: that the proprietary nature of the formula denied him and his defense team access to his data, and that COMPAS takes into account race and gender when predicting outcomes, which constitutes bias. His case was denied by the lower court, but Loomis refused to back down, instead appealing to the Wisconsin Supreme Court.
In July of 2016, a unanimous decision by the Wisconsin Supreme Court upheld the state’s decision to use automated programs to determine sentencing. In her opinion, Justice Ann Walsh Bradley wrote: “Although it cannot be determinative, a sentencing court may use a COMPAS risk assessment as a relevant factor for such matters as: (1) diverting low-risk prison-bound offenders to a non-prison alternative; (2) assessing whether an offender can be supervised safely and effectively in the community; and (3) imposing terms and conditions of probation, supervision, and responses to violations.” In response to Loomis’ contention that race and particularly gender can skew results and interfere with due process, Bradley further explained that “considering gender in a COMPAS risk assessment is necessary to achieve statistical accuracy." Her opinion further cautioned that judges should be made aware of potential limitations of risk assessment tools and suggested guidelines for use such as quality control and validation checks on the software as well as user education.
A report from the Electronic Privacy Information Center (EPIC), however, warns that in many cases issues of validity and training are overlooked rather than addressed. To underscore their argument, EPIC, a public interest research center that focuses public attention on emerging privacy and civil liberties issues, compiled a chart matching states with the risk assessment tools used in their sentencing practices. They found more than 30 states that have never run a validation process on the algorithms in use within their state, suggesting that most of the time these programs are used without proper calibration.
The Problem with COMPAS
In states using COMPAS, defendants are asked to fill out a COMPAS questionnaire when they are booked into the criminal justice system. Their answers are analyzed by the proprietary COMPAS software, which generates predictive scores such as “risk of recidivism” and “risk of violent recidivism.”
These scores, calculated by the algorithm on a one-to-10 scale, are shown in a bar chart with 10 representing those most likely to reoffend. Judges receive these charts before sentencing to assist with determinations. COMPAS is not the only element a judge is supposed to consider when determining length and severity of sentence. Past criminal history, the circumstances of the crime (whether there was bodily harm committed or whether the offender was under personal stress) and whether or not the offender exhibits remorse are some examples of mitigating factors affecting sentencing. However, there is no way of telling how much weight a judge assigns to the information received from risk assessment software.
Taken on its own, the COMPAS chart seems like a reasonable, even helpful, bit of information; but the reality is much different. ProPublica conducted an analysis of the COMPAS algorithm and uncovered some valid concerns about the reliability and bias of the software.
In an analysis of over 10,000