(Photo by Flickr user Stacy Welsh, used under a Creative Commons license)
Nearly a decade after a controversial sentencing tool was proposed in Pennsylvania to help judges divert low-risk individuals from prison into alternative sentencing programs, the computer algorithm, called a risk-assessment tool, was approved Thursday.
The Pennsylvania Commission on Sentencing voted 7-2 on Thursday to adopt the tool into sentencing practice across the state, the Pennsylvania Capital Star reported.
The goal of the tool is to identify folks who are “lower risk,” who could be put into a diversionary programs — an answer to overcrowding at prisons. It also aims to make sentencing more consistent.
It does so by assessing defendants’ prior criminal history, age and gender. Defendants found to be high or low risk would be flagged for a further assessment of their risk for recidivism and need for treatment or support.
It was proposed that for the second-level review, individuals would be assessed by their county probation department.
“In Philadelphia, that’s particularly controversial, as the risk-assessment instrument used by the probation department is a complex ‘black box’ algorithm, meaning that it’s unclear how it weighs various factors in assessing any given individual,” The Philadelphia Inquirer wrote this week.
And critics of the tool say it could reinforce racial and gender biases that could actually increase incarceration, and would likely invite a legal challenge on constitutional grounds. A “high risk” person could end up getting a longer sentence than originally thought because of the assessment.
A similar risk-assessment tool, or RAT, was proposed in Philadelphia a few years ago, and the same critiques about systemic racism playing too strong a role surfaced then as well. This proposed tool was for before a defendant begins court proceedings, helping decide if judges should set bail or release them.
But after years of talks about the tool, it has not yet been adopted, and District Attorney Larry Krasner and Chief Public Defender Keir Bradford-Grey have registered their opposition to the proposed tool being used in pretrial decision-making.
The latest version of the Pennsylvania sentencing tool no longer calls for county probation offices to perform so-called risk and need assessments, which currently help them determine levels of supervision for people on parole. Instead, it advises county courts to obtain “additional information” about certain offenders prior to their sentencing, the Capital Star said.
But the sentencing commission says the tool will just be an advisory to judges, rather than a strict rule to follow.
The RAT will be implemented in July 2020, with courts starting to train with the tool at the beginning of the year.
The proposal also requires that the commission must review the tool every year to study its impact on sentencing patterns and methods employed by courts, the Capital Star reported, and the commission must revalidate the tool every three years to ensure it’s accurate.
Media Mobilizing Project Policy Director Hannah Sassaman told Technical.ly the Thursday vote was a loss for the tool’s critics, but that years of advocacy had stripped the original version of its most harmful features, which itself was a win.
“Yesterday’s vote is certainly disappointing for the thousands of Pennsylvanians, survivors of harm and survivors of mass incarceration, as well as data scientists, organizers, lawyers, and communities — who have been fighting for individualized justice at sentencing, rather than justice by numbers,” she wrote in an email.
“But the tool that the Commission instituted yesterday was massively changed over the past few years from one that actively centered racist factors in guessing the future of a sentenced person, to one that will be considerably less damaging, that involves real investigation into the humanity of the person at sentencing, and that involves public accountability and transparency.”
Organizers and advocates would continue to make their voices heard on criminal justice issues, Sassaman added. State Rep. Joanna McClinton and Sen. Sharif Street have also vowed to advance their proposed legislation to repeal the commission’s original mandate to create the tool.
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