Thursday, October 26, 2017

Risk assessments under fire, but critics don't differentiate uses

Grits has been a supporter of risk assessments as part of pretrial detention determinations in lieu of bail, which available evidence suggests leads to far better outcomes. But lately there has been much weeping and gnashing of teeth among liberals over risk-assessment instruments, charging that they result in racial bias depending on which variables are used.

In all these debates, Grits has seldom if ever seen commentators focus on a key distinction between how risk assessments are used at different stages in the process.

Grits is not a fan of their use in any but an advisory capacity for predictive policing or in sentencing. In policing, probable cause must always be individualized to a specific person. And punishments should be decided by judges and juries, not algorithms (although if we're honest, that process is really controlled by prosecutors and certainly isn't immune from racial bias).

But using risk assessments to decide pretrial detention is a horse of a different color, because the alternative is that money bail is required of all. That means people who can't afford bail must rot in jail until their case is resolved, putting immense pressure on even-innocent people to plea. In that circumstance, the benefits to liberty from applying a risk-assessment tool that lets the majority of poor people out pretrial outweighs any detriment from bias in the instrument.

Risk assessments also have well-recognized uses for probation systems which are key to reducing recidivism and encouraging probationers' success. Low-risk probationers subjected to intensive programming (or for that matter, who are revoked to prison) tend to escalate in criminality in ways which are counterproductive, a growing body of research indicates. So assessing risk/needs is key to deciding what programming should be assigned.

In those circumstances, Grits remains unconvinced that bias from these instruments is greater or more harmful than the bias being exhibited by judges. For example, the videos of bail hearings before magistrate judges which arose out of the Harris County bail litigation demonstrated near-universal disrespect for misdemeanor defendants' pretrial liberty interests, whereas the risk assessment would have freed most of them. So which is more biased? And which bias is more concerning?

Predicting "future dangerousness" (as the courts have dubbed risk assessment by juries in the sentencing phase of capital cases) is always a dubious prospect, but also a fundamental part of what the justice system does. In most phases of the process, those decisions should probably be left to the decision-makers traditionally in charge of them.

In the case of pretrial detention, though, where the defendants are still presumed innocent by the system, IMO opposing the use of risk-assessment tools amounts to allowing the perfect to become the enemy of the good. Ditto for probation where there's a pragmatic need to assess probationers' risk in order to make decisions about programming, and risk levels can change significantly over time.

The desire to purge the system of racial bias is understandable, but please let's not throw the baby out with the bath water.


James S. said...

"But using risk assessments to decide pretrial detention is a horse of a different color, because the alternative is that money bail is required of all....The desire to purge the system of racial bias is understandable, but please let's not throw the baby out with the bath water."

Oh, dear, Scott. Don't you know you're gonna lose any "woke" credentials you might have? The SJWs out there don't care about burdening everyone -- they just wanna scream bloody murder if it's even perceived that a particular path might have a disparate racial outcome -- irrespective of actual bias or racial animus.

Gritsforbreakfast said...

Both approaches generate racial disparities: The status quo where everyone stays in jail if they can't pay, and also releasing people based on risk assessments. But from everything I've seen, the RA disparities are less than those that arise from money bail. In the end, human judges' biases tend to be worse than the assessment instruments.

At this point in life I don't give a tinker's damn about credentials - SJW, conservative, academic, or otherwise. This is just an issue of math. If black folks are disproportionately incarcerated - say (guesstimating), they make up a third of jail inmates under a money bail system, compared to 10-12% of the population - and if a risk assessment would let 2/3 of them out, I can't see how it's better to let NO ONE out if it turned out 70-75% of white inmates would be released. (All numbers hypothetical.)

The greater good, even if your main concern is racial disparities, comes from releasing those who are low-risk. The alternative is to keep more black folks locked up because white folks might benefit even more, which is irrational, bordering on absurd. These aren't just ratios, they're people whose lives are being disrupted. The fewer low-risk pretrial defendants we lock up - black, white, green, or blue - the better it is for them, their families, and for everybody.

Anonymous said...

Is risk assessment used to determine whether any given defendant should released on bond, or is risk assessment only driving which indigent defendants should be released on bond.

Shiplap City said...

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Steven Michael Seys said...

Of course you must consider the data examined under risk assessment, and who supplies that data. The old computer programming axiom of garbage in - garbage out applies here too. If the ones supplying the data have a vested interest in keeping the accused incarcerated, you can bet that data is suspect.

mike connelly said...

The real problem with this debate is that that question is not whether assessments should be done. It is whether the assessments should be formalized, transparent, and public versus the folk wisdom and idiosyncrasies within the informal, hidden, and private assessments of the system participants at each stage from arrest through corrections. We didn't get the heavily discriminatory and biased system we've had forever from bail assessments and LSI-r's. We got it from the assessment stories carried around in the heads of those deciding each point. It's not incorrect to worry that assessments that have all these prior informal biases built in will produce the same results. The question for the protestors is, what is your alternative? The judge who sentences more harshly around lunchtime and after than s/he does first cases in the morning? Of course, no individual case should come down to a computer printout based on standardized variables with no distinctions for context or weightings. That's why overview and review of decisions must be taken seriously as well and performed. But a system with these reviewed cases and evaluated assessments will defend against unwarranted disparity far better than a system without them. Look where we are and have been for all the proof of that needed.

Gritsforbreakfast said...

@4:34, all misdemeanor defendants.

@ mike connelly, I agree completely, you've framed the overall debate exactly correctly. "Compared to what?" is the big question. But I also think using it for pretrial purposes is a different use case because the alternative for RA-based punishment is judge-or-jury based punishment, but the alternative to RAs on pretrial detention is money bail. So the system discriminates against people on the basis of poverty, not culpability. Different situation from use at punishment.

Anonymous said...

First time "offenders" that served the required full sentence should not be on probation.