GateHouse: Risk assessment under scrutiny in criminal justice system

Matthew T. Mangino

GateHouse Media

August 2, 2019

Over the past two decades as crime rates fell and incarceration rates rose some have argued, according to University of Virginia Professor Brandon Garrett, “that one way to begin dialing down ‘mass incarceration’ without simultaneously jeopardizing the historically low crime rate is to put risk assessment back into sentencing.”

According to Garrett, risk assessment in sentencing is not a new phenomenon. In California, more than a century ago, lawmakers introduced indeterminate sentencing - whereby an offender is given a minimum sentence and maximum sentence and is only released from prison after the minimum, and prior to the maximum, upon demonstrating that he or she is a low risk for reoffending.

It has recently been estimated that at least 20 states have begun to incorporate risk assessment into the sentencing process “in some or all cases.”

However, this week, 27 leading criminal justice researchers signed a letter denouncing the use of sentencing risk algorithms in courtrooms across the country. They report the tools’ reliance on distorted data does little to reduce jail populations and unfairly penalizes minority defendants, reported the Pennsylvania Capital-Star.

The letter suggested that current risk assessment instruments are unable to distinguish one person’s risk of violence from another. In statistics, predictions are made within a range of likelihood, rather than as a single point estimate.

Some predictive algorithms appear to make estimates of recidivism accuracy at between 5 and 15%, where studies have demonstrated that predictive models can only make reliable predictions about risk for violence within ranges of 20 to 60%.

The letter continues, “As a result, virtually everyone’s range of likelihood overlaps. When everyone is similar, it becomes impossible to differentiate people with low and high risks of violence. At present, there is no statistical remedy to this challenge.”

As far back as 2014, then U.S. Attorney General Eric Holder warned that risk assessments might be injecting bias into the courts. At the time, he called for the U.S. Sentencing Commission to study their use. “Although these measures were crafted with the best of intentions, I am concerned that they inadvertently undermine our efforts to ensure individualized and equal justice,” he said, adding, “they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”

According to a recent report by the Partnership on Artificial Intelligence, “using risk assessment tools to make fair decisions about human liberty would require solving deep ethical, technical, and statistical challenges.” The report found that tools currently available and under consideration by jurisdictions across the country fail to adequately address those concerns.

In Pennsylvania, the Board of Probation and Parole, the agency charged with making parole decisions, uses various assessments including risk, sex offending, mental health and drug and alcohol. Risk assessments tools coupled with parole guidelines are thought to provide uniformity to the board’s decision making process.

Just this past April, Pennsylvania Governor Tom Wolf said, “Pennsylvania can lead the nation with bold bipartisan reforms to probation and parole.”

Within three months, according to WHYY-FM, parolees from Pennsylvania prisons committed six murders.

The first, on May 23, a parolee allegedly strangled his girlfriend’s mother, then set her home in Hershey on fire to cover it up.

On June 29, police say another parolee murdered his girlfriend’s two-year-old daughter in Baltimore, Maryland. About a week later, a parolee from New Castle, just north of Pittsburgh, allegedly murdered his girlfriend’s eight-year-old son.

On July 14, 2019 an off-duty Pittsburgh police officer was shot and killed, allegedly by a parolee. Just four days later, another parolee allegedly stabbed his sister and niece in Lancaster.

Pennsylvania’s Secretary of Corrections John Wetzel told WHYY-FM, “Listen, I think in every way we need to use data, measure it, infer what we can from the actual data, learn what we can from individual cases, and not knee-jerk.”

Predicting human behavior is a tricky business. While it may have a place in the criminal justice system, blind adherence to predictive tools can have deadly consequences.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Use of risk assessment in sentence guidelines denounced

This week, 27 leading criminal justice researchers signed a letter denouncing the use of sentencing risk algorithms in courtrooms across the country. They say the tools’ reliance on distorted data does little to reduce jail populations and unfairly penalizes minority defendants, reported the Pennsylvania Capital-Star.

Ten years ago state lawmakers ordered the Pennsylvania Commission on Sentencing to create a mathematical equation to calculate a defendant’s risk for violence. 

Sentencing algorithms like the one being developed in Pennsylvania use an array of data — including age, gender, and criminal history — to predict a defendant’s likelihood of recidivism, or committing another crime.

Pennsylvania judges were supposed to use tool to dole out fairer sentences. But a growing body of evidence suggests such tools are deeply flawed.

Some tools are designed for use in pre-trial sentencing — the stage at which a judge decides whether or not a defendant should be released on bail while they await trial. 

But criminal justice experts say that pre-trial violence is so rare that it’s hard to statistically predict it with any accuracy.

They also say that risk assessments of all types perpetuate bias, in part because black and hispanic defendants are more heavily policed, and therefore more likely to have criminal records. 

“Risk assessments that incorporate this distorted data will produce distorted results,” the letter reads. “These problems cannot be resolved with technical fixes. We strongly recommend turning to other reforms.”

The researchers sent the letter to letter sent to lawmakers in California and Missouri statehouses and Los Angeles County — three jurisdictions currently considering the use of pre-trial sentencing algorithms.

A draft algorithm they released in 2018 drew near-unanimous criticism from criminal justice reform advocates at public comment sessions in Philadelphia, according to WHYY.

Legislation that Street introduced this year would repeal the 2010 mandate once and for all. In a memo seeking his colleagues’ support for the bill, Rep. Sharif Street said that creating an unbiased, reliable sentencing tool may be an impossible task.

“Since the passage of the [2010] mandate, the Commission has worked hard to create an automated tool that is statistically predictive of risk and does not show bias against any protected class,” Street wrote in a memo seeking his colleagues’ support for the bill. “After reviewing more than eight years of thorough research and development conducted by the Commission, many, including members of the Commission itself, have serious concerns that such an automated tool is possible.”

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Regulating Artificial Intelligence in the criminal justice system

A new report from the Law Society of England and Wales, “Algorithms in the Criminal Justice System,” lays out a thoughtful alternative that creates legal structures and procedures around AI in the criminal justice system that protect due process and the rule of law while allowing for technology’s experimentation, writes Jason Tashea for the ABA Journal.

Like in the U.K., AI is proliferating at all levels of the U.S. justice system. Risk assessments assist in bail, sentencing and parole decisions. Police are dispatched into communities with an algorithm’s insistence. And facial recognition is being rolled out by law enforcement at the federal, state and local levels.

The challenges and harms of these technologies are well-documented. Facial recognition and risk assessments show racial bias. Complex algorithms are not built to “explain” their conclusions, which closes a part of an otherwise open court process. Even if AI software is “explainable,” private companies shield their software from scrutiny by claiming it as a trade secret—despite being used by a public agency.

These challenges are compounded in the U.S. because federal and state lawmakers are using algorithms as a public policy crutch.

At the federal level, the First Step Act, passed in 2018, expects to release more people from federal prison with the assistance of a risk assessment tool. In a similar vein, California passed a major bail reform bill–SB-10—that is now on the ballot. If ratified, the law would require local agencies to use risk assessment tools in lieu of cash bail.

In both cases, drafters of these otherwise decent laws made the bet that an algorithm can stand in for existing processes and policy choices. At the same time, neither law provides legal standards on how the tool should be built, what oversight and transparency are needed or how to assess an algorithms efficacy, including its impact on the legal rights of the accused.

Handing off this type of rule-making to an agency is standard in legislation; however, there’s evidence that agencies are also being deferential to the technology. In New York, for example, the Department of Corrections and Community Supervision has put in multiple layers of bureaucracy to limit human override of the agency’s risk assessment tool.

This legislative and regulatory trend outsources decisions traditionally made by publicly accountable individuals to private companies. Algorithms are opinions expressed through math, and when an algorithm is used for a public purpose, everything from the problem definition to the data used to build the algorithm are public policy concerns. As the report from London notes, the value-based decisions that ultimately make up an algorithm are “usually not between a ‘bad’ and a ‘good’ outcome, but between different values that are societally held to be of similar importance.”

Take for example, defining fairness when using a risk assessment for bail. As University of Pennsylvania criminology professor Richard Berk wrote with colleagues in 2017, there are six types of fairness and not all are compatible with each other. A government could decide that fairness is achieved when a tool provides the same accuracy for two protected groups, like men and women. Or fairness can be attained if the error rates are the same among groups, even though it might mean more men than women are incarcerated.

These two outcomes are not compatible, so a choice needs to be made. Depending on the community, either could be the “right” decision, but it’s not a decision to be left up to a software company.

Beyond the legislative and executive branches, unjustifiable trust in these tools extends to the judiciary. The Supreme Court of Wisconsin in 2016 decided that the lack of transparency of a risk assessment tool used at sentencing did not infringe on a defendant’s due process. A California appeals court in 2015 made a similar conclusion regarding DNA testing software, which was used to convict a man of rape and murder.

Collectively, these approaches to legislating and judicial decision making are regrettable—but fixable.

To be clear, the use of algorithms is not fundamentally the problem. The problem is the lack of accountability, effectiveness, transparency and competence surrounding these tools, as defined by the IEEE’s comprehensive principles on the ethical use of AI in legal systems.

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The Vindicator: MATTHEW MANGINO | ‘Dysfunctional’ Ohio Parole Board urgently needs parole guidelines

Matthew T. Mangino

The Vindicator

May 15, 2019

When former Ohio lawmaker Shirley Smith resigned from the Ohio Parole Board, she told the Dayton Daily News that the agency was “dysfunctional, secretive and toxic.”

There are approximately 49,500 inmates in Ohio’s state prison system. The parole board has discretion over only about 9,000 inmates. In 1996, the state enacted truth-in-sentencing requiring sentences of a specific term. As a result, the board has discretion over about 3,900 inmates sentenced under the old law and another 5,000 inmates serving life sentences for serious crimes such as murder.

The Ohio Parole Board may only grant parole “if in its judgment there is reasonable ground to believe that ... paroling the prisoner would further the interests of justice and be consistent with the welfare and security of society.”

According to the Daily News, between 2011 and October 2018, the parole board granted release for 1,076 inmates out of the 10,575 interviews it conducted – a parole rate of 10.2 percent.

Video conference

Board members are appointed by the director of the Ohio Department of Rehabilitation and Correction. Board members interview parole-eligible inmates via video conference. Interviews and deliberations are closed, but decisions are public record.

The Ohio Parole Board operates largely behind closed doors. Records are kept secret, full board meetings are open to the public but debate and votes are conducted behind closed doors.

Smith’s departing critique of the board has opened the system, and process, to scrutiny. Criticism has begun to grow from crime victims, inmates and attorneys.

The Department of Rehabilitation and Correction has a new director – Annette Chambers-Smith. The new director is talking about reform. She believes change is needed, including increased transparency.

Gov. Mike DeWine has also jumped into the fray. DeWine would like to add new members to the parole board from different backgrounds, improve training and establish new guidelines weighing inmate misconduct.

Inadequate suggestion

Although the governor’s suggestion to create behavior guidelines is a step in the right direction, it too is inadequate. Ohio needs to establish guidelines to aid board members in making decisions. For instance, the Pennsylvania Board of Probation and Parole, on which I served for six years, uses a regularly normed parole guideline. The instrument is generated for every inmate eligible for parole and being interviewed by a panel of the parole board.

The Pennsylvania parole guidelines consider such things as behavior in prison, program completion, prior supervision history, prior criminal history, future risk and the nature of the offense resulting in the inmate’s incarceration.

Each inmate is provided a numerical score which indicates whether the inmate is “likely” or “unlikely” to be paroled.

The Pennsylvania Board also uses various assessments including risk, sex offending, mental health and drug and alcohol. The guidelines provide uniformity to the board’s decision making. The parole rate for the Pennsylvania Board of Probation and Parole is about 58 percent.

That is not to suggest that Ohio’s parole rate should be comparable. Pennsylvania’s board sees, or votes on, the parole of every violent and non-violent offender in state prison who is eligible for parole.

Hefty sentences

Ohio’s board is only seeing inmates who were incarcerated before truth-in-sentencing was established. The inmates who are left received hefty sentences and many presumably committed serious, violent offenses. The other segment of the prison population Ohio deals with are lifers. The lifers are usually the worst of the worst.

DeWine said his administration is appointing three new members to the board – a public defender, a prosecutor and a state lawmaker.

“The reforms of the Parole Board are a work in progress. There is going to be more besides what we are announcing today,” he told the Daily News, adding that he is working with state lawmakers on additional changes.

Creating parole guidelines would provide consistency and transparency to the parole process in Ohio and would go a long way toward gaining the confidence of the governor, lawmakers and most importantly, the public.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010 “was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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TCR: Risk Assessment: Should Youth Be a Factor in Judging ‘Dangerousness’?

Matthew T. Mangino

The Crime Report

January 9, 2019

This summer, the Pennsylvania Commission on Sentencing is expected to roll out a “risk assessment” tool for use by judges when sentencing offenders, fulfilling a mandate first commissioned by Gov. Ed Rendell back in 2010.

Incorporating risk assessments into sentencing in Pennsylvania has been a long time coming.

Giving judges more information about an offender’s background and his or her propensity for future violence is thought to enhance a jurist’s ability to make informed decisions that incorporate the core elements of sentencing: appropriate punishment, public safety and rehabilitation.

The Commission’s report would include an assessment with a scale from 0 to 18 points. The higher the score, the more likely the person being sentenced will reoffend.

An offender’s criminal record has long been a part of the sentencing process. In Pennsylvania, current sentencing guidelines take into consideration an offender’s criminal record. The longer the criminal record, the more severe the range of potential sentences.

But according to PublicSource.org, in addition to the information that has routinely been available to judges—prior record, seriousness of the offense and guidelines—the Commission on Sentencing is weighing whether judges should also be provided with a report to predict the offender’s future dangerousness.

Predicting the likelihood that an offender might offend again is highly controversial.

“This would represent a shift in punishing a person for what they did do, to what a person might do,” Mark Houldin, policy director for the Defender Association of Philadelphia, told Fox43 News in Harrisburg, Pennsylvania. “And we think that is incredibly dangerous.”

Adding to the concern is one of the factors that would be part of a tool assessing future “dangerousness.”

Age.

Under the proposal being considered in Pennsylvania, anyone under age 21 gets five points. Those between 21 and 25 get four. The points lessen as the offender ages until, at age 49, the offender is not assessed any points based on age.

An 18-year-old gets five points right out of the gate. If an offender scores fewer than four points on the assessment, he or she would be considered a low recidivism risk. If the offender scores 10 or more points, the offender would be considered a high risk to reoffend. An 18-year-old would never be considered a low risk, and would be halfway to being a high risk without even considering any other factors.

Using age as a measure to assess the likelihood of future criminal behavior seems to fly in the face of other recent reforms in the criminal justice system.

According to The Marshall Project, a number of state courts and lower federal courts have begun to consider whether people between the ages of 18 and 21—the period psychologists now call “late adolescence”—should have the same kind of special consideration that juveniles get before they are sentenced.

In 2005, the U.S. Supreme Court ruled that no person under the age of 18 shall be sentenced to death. Since then the court has also ruled that a juvenile can’t be sentenced to life without parole for a non-homicide offense, or to mandatory life without parole.

See also subsequent Court rulings in 2009 and 2011.

The Supreme Court has never extended those protections beyond the age of 18.

The status of young adults is especially confusing in Pennsylvania. A court last year considered an appeal from a woman who was sentenced to mandatory life without parole after serving as a lookout, at age 18, during a botched robbery that ended in murder.

The Superior court rejected her appeal, but called 18 an “arbitrary legal age of maturity,” and said an “honest reading” of the Supreme Court’s ruling would require courts to reconsider it. The Superior Court En Banc reheard the matter in October.

The Philadelphia Inquirer reported that some of the full panel of judges expressed concern that “someone a day over 18 and someone a day under 18 are treated differently,” and suggested the matter deserved closer examination.

Last year, a Kentucky court found that it was unconstitutional to sentence to death those who were younger than 21 at the time of their offense.

Earlier this year, a federal court in Connecticut found that a man, who had been sentenced to life in prison without the possibility of parole for murders committed at age 18, should be resentenced. The court ruled that “the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.”

In Pennsylvania, the significance of “late adolescence” appears to be very different if one is assisting a judge in sentencing as opposed to reviewing a sentence already imposed.

The Commission on Sentencing has scheduled a series of hearings to get public feedback from social scientists, criminologists, practitioners and activists.

Rethinking incorporating age into the assessment tool for “dangerousness” should be part of the debate.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Alexander: Risk assessment 'weapon of math destruction'

Michelle Alexander writes for the New York Times:

In the midterms, Michigan became the first state in the Midwest to legalize marijuana, Florida restored the vote to over 1.4 million people with felony convictions, and Louisiana passed a constitutional amendment requiring unanimous jury verdicts in felony trials. These are the latest examples of the astonishing progress that has been made in the last several years on a wide range of criminal justice issues. Since 2010, when I published “The New Jim Crow” — which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration — there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.

This progress is unquestionably good news, but there are warning signs blinking brightly. Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of “e-carceration” that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.

Bail reform is a case in point. Thanks in part to new laws and policies — as well as actions like the mass bailout of inmates in New York City jails that’s underway — the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.

But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019. And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.” Freedom — even when it’s granted, it turns out — isn’t really free.

Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models — or “weapons of math destruction” as data scientist Cathy O’Neil calls them — appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.

As O’Neil explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”

Challenging these biased algorithms may be more difficult than challenging discrimination by the police, prosecutors and judges. Many algorithms are fiercely guarded corporate secrets. Those that are transparent — you can actually read the code — lack a public audit so it’s impossible to know how much more often they fail for people of color.

Even if you’re lucky enough to be set “free” from a brick-and-mortar jail thanks to a computer algorithm, an expensive monitoring device likely will be shackled to your ankle — a GPS tracking device provided by a private company that may charge you around $300 per month, an involuntary leasing fee. Your permitted zones of movement may make it difficult or impossible to get or keep a job, attend school, care for your kids or visit family members. You’re effectively sentenced to an open-air digital prison, one that may not extend beyond your house, your block or your neighborhood. One false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.

Who benefits from this? Private corporations. According to a report released last month by the Center for Media Justice, four large corporations — including the GEO Group, one of the largest private prison companies — have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population. Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control.

Who loses? Nearly everyone. A recent analysis by a Brookings Institution fellow found that “efforts to reduce recidivism through intensive supervision are not working.” Reducing the requirements and burdens of community supervision, so that people can more easily hold jobs, care for children and escape the stigma of criminality “would be a good first step toward breaking the vicious incarceration cycle,” the report said.

Many reformers rightly point out that an ankle bracelet is preferable to a prison cell. Yet I find it difficult to call this progress. As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.

If you asked slaves if they would rather live with their families and raise their own children, albeit subject to “whites only signs,” legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow. By the same token, if you ask prisoners whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor. I would too. But hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems. Similarly, if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer. They’re just another way of posing the question.

Some insist that e-carceration is “a step in the right direction.” But where are we going with this? A growing number of scholars and activists predict that “e-gentrification” is where we’re headed as entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found.

If that scenario sounds far-fetched, keep in mind that mass incarceration itself was unimaginable just 40 years ago and that it was born partly out of well-intentioned reforms — chief among them mandatory sentencing laws that liberal proponents predicted would reduce racial disparities in sentencing. While those laws may have looked good on paper, they were passed within a political climate that was overwhelmingly hostile and punitive toward poor people and people of color, resulting in a prison-building boom, an increase in racial and class disparities in sentencing, and a quintupling of the incarcerated population.

Fortunately, a growing number of advocates are organizing to ensure that important reforms, such as ending cash bail, are not replaced with systems that view poor people and people of color as little more than commodities to be bought, sold, evaluated and managed for profit. In July, more than 100 civil rights, faith, labor, legal and data science groups released a shared statement of concerns regarding the use of pretrial risk assessment instruments; numerous bail reform groups, such as Chicago Community Bond Fund, actively oppose the expansion of e-carceration.

If our goal is not a better system of mass criminalization, but instead the creation of safe, caring, thriving communities, then we ought to be heavily investing in quality schools, job creation, drug treatment and mental health care in the least advantaged communities rather than pouring billions into their high-tech management and control. Fifty years ago, the Rev. Dr. Martin Luther King Jr. warned that “when machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, extreme materialism and militarism are incapable of being conquered.” We failed to heed his warning back then. Will we make a different choice today?

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Not everyone happy with new California bail system

The new California bail system system includes a presumption against release for people accused of violent felonies and for those who score high on a risk assessment tool, reported The Marshall Project.

People accused of low-level misdemeanors will be booked and released within 12 hours, with some exceptions, such as domestic violence. They won’t undergo a risk assessment.

People accused of high-level misdemeanors or low-level felonies will undergo screening using a risk assessment tool that will typically be administered by county probation departments. Most of those who score “low risk” will be released within 24 hours.

The courts will determine the fate of defendants deemed “medium risk.”

People the test ranks as “high risk” will see a judge at arraignment. Those charged with a violent felony or with other factors that weigh against them, such as a conviction for a violent or serious felony within the last five years, will usually await trial in jail.

For Senator Hertzberg and others who continue to back the new law, including the Service Employees International Union, which represents many relatively low-income workers, removing money from the system is an important step.

“We got into this because we wanted to eliminate the cash bail system,” said Tia Orr, director of government relations for SEIU California. “For us to be the first state in the nation to do this was something we couldn’t walk away from.”

Orr acknowledged the concerns about the bill, particularly that it doesn’t require the gathering and analysis of data on how the new law will play out in courtrooms throughout the state.

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Predicting crime by examining the brain

A group of neuroscientists at the University of New Mexico propose to use brain imaging technology to improve risk assessments, reported The Marshall Project. Kent Kiehl, a professor of psychology, neuroscience and the law at the University of New Mexico, said that by measuring brain structure and activity they might better predict the probability an individual will offend again.

Neuroprediction, as it has been dubbed, evokes uneasy memories of a time when phrenologists used body proportions to make pronouncements about a person’s intelligence, virtue, and — in its most extreme iteration — racial inferiority.

Yet predicting likely human behavior based on algorithms is a fact of modern life, and not just in the criminal justice system. After all, what is Facebook if not an algorithm for calculating what we will like, what we will do, and who we are?

In a recent study, Kiehl and his team set out to discover whether brain age — an index of the volume and density of gray matter in the brain — could help predict rearrest.

Age is a key factor of standard risk assessments. On average, defendants between 18 to 25 years olds are considered more likely to engage in risky behavior than their older counterparts. Even so, chronological age, wrote the researchers, may not be an accurate measure of risk.

The advantage of brain age over chronological age is its specificity. It accounts for “individual differences” in brain structure and activity over time, which have an impact on decision-making and risk-taking.

After analyzing the brain scans of 1,332 New Mexico and Wisconsin men and boys — ages 12 to 65 — in state prisons and juvenile facilities, the team found that by combining brain age and activity with psychological measures, such as impulse control and substance dependence, they could accurately predict rearrest in most cases.

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GateHouse: Nevada shines light on parole, it is not pretty

Matthew T. Mangino

GateHouse Media

July 24, 2017

Last week, the Nevada Board of Parole Commissioners clearly demonstrated why the Nevada Legislature should send the seven commissioners packing, abolish the commission and create a system that won’t let offenders pander and parole decision-makers wither.

O.J. Simpson’s parole hearing opened the door to a process of decision-making that, for many, had been unknown. Simpson’s brash denials of responsibility and minimization of his involvement in the conspiracy to commit robbery, kidnapping and an assortment of other serious crimes code violations is an affront to the criminal justice system and especially parole decision-making.

About 6-months ago, I wrote in this column that it is time to rethink parole. Simpson’s parole hearing convinced me that change is the right course.

In February, I wrote that although there are criteria and policies to guide parole members on making release decisions, the process is different from any other decision made in the criminal justice system.

As a former parole board member, having spent a 6-year term on the nine-member Pennsylvania Board of Probation and Parole, I was dismayed with the matter-of-fact approach of the Nevada Commission. The decision to parole Simpson was a foregone conclusion before anyone entered the hearing room.

How else could you explain the Commission’s failure to challenge Simpson? He essentially said “I didn’t know what was going down.” Simpson whined that he was duped by his co-conspirators — he never saw a gun and never robbed anybody.

Why is it important for an offender to take responsibility? If an inmate has spent years in prison and continues to minimize his involvement in the crime or boldly assert he did nothing wrong, what happens the next time that parolee is faced with a decision that includes crime as an option?

In Simpson’s case, he had no misconducts, completed programming — albeit not what the department of corrections had recommended — and was considered a low risk. So what was the reason to conduct the interview? He wasn’t challenged, he used the opportunity to tell the commission, and the public, what a good guy he is and what a great reputation he has among members of the prison community and the community at large.

Then the board made it a point that the “incident” in 1994 — the wrongful death of Nicole Simpson and Ron Goldman — would not be considered by the board. Wow, Simpson was found liable in a civil court in California for their deaths and the parole commission isn’t going to consider it?

According to the Commission website, in Nevada, “Parole is an act of grace by the state ... and release from confinement after serving a portion of their sentence is discretionary.” If a paroling authority is not going to ask probing questions of potential parolees and explore their background and history then why go through the motions.

As I 6 months ago, the parole process can be streamlined. Parole boards should focus their time and resources on the inmates that really matter.

One option would be to split parole consideration into three categories. First, those inmates who have complied with all requirements for parole — programming, good behavior, institutional support and are assessed a low risk. As in Simpson’s case he should have presumptively been paroled, without review by the parole board.

Then there are those unlikely to be paroled — refusing programming, behavior problems and no institutional support. Those inmates are automatically refused without seeing the board.

That leaves time for those inmates on the bubble, maybe a high risk or past behavior history. Those inmates should be interviewed by the board — probed, cajoled and challenged. Determining whether those parolees will succeed may be the difference between life or death for some unsuspecting member of society.

I am not suggesting Simpson should stay in prison, but to give him a forum and a tap on the head didn’t provide justice for anyone.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Who is minding the use of algorithms in the criminal justice system?

Algorithms pervade our lives today, from music recommendations to credit scores to now, bail and sentencing decisions. But there is little oversight and transparency regarding how they work. Nowhere is this lack of oversight more stark than in the criminal justice system. Without proper safeguards, these tools risk eroding the rule of law and diminishing individual rights, reported Wired.

Currently, courts and corrections departments around the US use algorithms to determine a defendant’s “risk”, which ranges from the probability that an individual will commit another crime to the likelihood a defendant will appear for his or her court date. These algorithmic outputs inform decisions about bail, sentencing, and parole. Each tool aspires to improve on the accuracy of human decision-making that allows for a better allocation of finite resources.

Typically, government agencies do not write their own algorithms; they buy them from private businesses. This often means the algorithm is proprietary or “black boxed”, meaning only the owners, and to a limited degree the purchaser, can see how the software makes decisions. Currently, there is no federal law that sets standards or requires the inspection of these tools, the way the FDA does with new drugs.

This lack of transparency has real consequences. In the case of Wisconsin v. Loomis, defendant Eric Loomis was found guilty for his role in a drive-by shooting. During intake, Loomis answered a series of questions that were then entered into Compas, a risk-assessment tool developed by a privately held company and used by the Wisconsin Department of Corrections. The trial judge gave Loomis a long sentence partially because of the “high risk” score the defendant received from this black box risk-assessment tool. Loomis challenged his sentence, because he was not allowed to assess the algorithm. Last summer, the state supreme court ruled against Loomis, reasoning that knowledge of the algorithm’s output was a sufficient level of transparency.

By keeping the algorithm hidden, Loomis leaves these tools unchecked. This is a worrisome precedent as risk assessments evolve from algorithms that are possible to assess, like Compas, to opaque neural networks. Neural networks, a deep learning algorithm meant to act like the human brain, cannot be transparent because of their very nature. Rather than being explicitly programmed, a neural network creates connections on its own. This process is hidden and always changing, which runs the risk of limiting a judge’s ability to render a fully informed decision and defense counsel’s ability to zealously defend their clients.

Consider a scenario in which the defense attorney calls a developer of a neural-network-based risk assessment tool to the witness stand to challenge the “high risk” score that could affect her client’s sentence. On the stand, the engineer could tell the court how the neural network was designed, what inputs were entered, and what outputs were created in a specific case. However, the engineer could not explain the software’s decision-making process. 

With these facts, or lack thereof, how does a judge weigh the validity of a risk-assessment tool if she cannot understand its decision-making process? How could an appeals court know if the tool decided that socioeconomic factors, a constitutionally dubious input, determined a defendant’s risk to society? Following the reasoning in Loomis, the court would have no choice but to abdicate a part of its responsibility to a hidden decision-making process.

Already, basic machine-learning techniques are being used in the justice system. The not-far-off role of AI in our courts creates two potential paths for the criminal justice and legal communities: Either blindly allow the march of technology to go forward, or create a moratorium on the use of opaque AI in criminal justice risk assessment until there are processes and procedures in place that allow for a meaningful examination of these tools.

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The Crime Report: Cutting Bail Costs in Half ‘Could Save Billions’

Matthew T. Mangino

The Crime Report

March 22, 2017

On any given day in the United States there are about 450,000 people in jail who have not been convicted of anything. According to the Pretrial Justice Institute, they cost taxpayers about $38 million a day.

Those 450,000 people have been charged with a crime, and all—except for a small percentage facing life in prison—have a right to be free. These men and women sit in jail because they do not have the money to get out, pending trial.

Bail is an age-old tool that allows judges to release defendants pending trial by requiring them to post a certain amount of money as a way of ensuring they’ll return to court. To make bail, defendants post collateral, pay the amount in cash or get a bail piece—insurance policy—from a bail bond company, which typically charges a 10 percent fee.

Let’s do the math.  Mr. Smith gets arrested for assault.  The court sets his bail at $1,500.  The bail bond company needs $150 to post Smith’s bail.  Smith doesn’t have it, so he sits in jail for 75 days awaiting trial.  Smith pleads guilty and is sentenced to time served and released.

Because Mr. Smith didn’t have $150, taxpayers shelled out $85 a day for a whopping $6,375.

Bail serves two purposes: To guarantee that defendants appear for court; and to protect the public from those who are a potential threat.  Proponents of cash bail say the money to post bail often comes from family members, and serves as a deterrent to fleeing.

Bail is not punitive. Although violent crime rates are at historic lows, the Trump Justice Department has made violent crime a top priority.  Attorney General Jeff Sessions would do well to be smart, as well as tough, on crime.  A first step might be setting aside funds for states who commit to reexamining pretrial detention.

A recent study in Maryland found that people arrested in the state from 2011 to 2015 paid combined bail premiums of more than $256 million. Those who use the services of a bail bond company do not get back any of the money paid.  More than 25 percent of that money was paid by people who were acquitted or never faced trial.

Last fall, Maryland Attorney General Brian E. Frosh told members of the House of Delegates that judges and court commissioners must take into account the accused’s ability to pay before setting bail. According to the Baltimore Sun, Frosh said that if bail is out of reach for a defendant, the courts would find that unconstitutional.

Two years ago, New Jersey voters changed the state constitution to implement a new bail system that focused on expanding assessments of defendants to determine whether they should be released.  The New Jersey Bail Reform and Speedy Trial Act went into effect in January.  The new law will rely on a computerized risk assessment tool to make bail decision and is expected to reduce costs and significantly reduce the state’s jail population.

In New York City, Mayor William de Blasio earmarked $17.8 million to supervise 3,000 defendants in the community who are awaiting trial. The “supervised release” initiative permits judges to release defendants to a supervisory program that allows defendants to remain at home with their families and continue working while awaiting trial.

Those awaiting trial represent 63 percent of the total jail population.  Less than four out of 10 men and women sitting in county and local jails are actually serving a sentence. Those sitting in jail not serving a sentence drain about $14 billion a year from public coffers.

America’s bail system has become a central issue in the fight to reverse mass incarceration. According to NBC News, in courthouses, statehouses and ballot boxes across the country, civil rights lawyers and progressive policymakers are working to curb the practice of demanding money in exchange for freedom before trial.

“The nation needs to reform its bail system. But it’s not as simple as saying, ‘Eliminate cash bail,’ ” Kevin Burke, a Minnesota district judge and past president of the American Judges, Association told Stateline.

According to Burke, judges only get a few minutes to assess a defendant’s case, and often judges set bail without knowing the full circumstances.

“The fear (they have) is ‘I’m going to let somebody go and they’re going to go out and do something terrible, or they won’t come back, so I’ll set bail,.’”  Burke said.

The current bail system denies freedom to thousands of people who are presumed innocent but are financially challenged. Those who sit in jail are at risk of losing their jobs, their homes, and their families.

Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in America to spend about $1 trillion, according to the Pretrial Justice Institute on pretrial incarceration, which amounts to about six percent of the Gross Domestic Product.

According to the White House Council of Economic Advisers, the use of bail has exploded in the past two decades, driving a 59 percent rise in the number of un-convicted jail inmates.

Correcting America’s bail crisis is not out of reach.  This isn’t about being tough on crime.  It’s about being fair.  For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.

For taxpayers the issue is just as compelling.
If the cost of pretrial detention could be cut in half, taxpayers could save $7 billion a year. In these challenging economic times those dollars are difficult to ignore.

.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino. He welcomes readers’ comments.
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The science of risk assessment under scrutiny

In 2014, Eric Holder, then the U.S. attorney general, articulated the uncertainty swirling around risk assessment tools in a speech given to the National Association of Criminal Defense Lawyers’ 57th Annual Meeting, reported the ABA Journal. 

“Although these [risk assessment] measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice,” he said. “They may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”

Angel Ilarraza, director of consulting and business development at Northpointe Inc., the Michigan-based company that created Compas, thinks that this concern is ill-founded. “There’s no secret sauce to what we do; it’s just not clearly understood,” Ilarraza says.

Compas uses an algorithm, a term Ilarraza does not like because he thinks it is confusing, that assesses 137 questions answered by the charged person and supplemented by his or her criminal records. These inputs are plugged in to the algorithm, which is a set order of operations like a math equation. Based on this process, the person’s likelihood of committing a future crime (the output) is pegged on a scale of 1 (low risk) to 10 (high risk). Beyond Wisconsin, Compas also is used in California, Michigan and New York, among other jurisdictions.

The questionnaire covers the gamut of a person’s criminal history and personal background as a way to decipher risk. Questions include whether an alleged offender experienced his or her parent’s divorce or has a telephone at home, and whether the screener thinks the defendant is a suspected or admitted gang member.

Ilarraza, supporting the Wisconsin Supreme Court view, is quick to point out that the tool is meant to inform decision-making. “It facilitates the implementation of evidence-based practices,” he says.

Christine Remington, the Wisconsin assistant attorney general who argued Loomis for the state in the supreme court, agrees. “I don’t think there’s any question that [Compas] is a good thing,” she says. It allows the corrections department to “tailor limited resources in the best way possible.”

Compas recently came under scrutiny by ProPublica, an investigative journalism organization. Assessing the tool’s outputs in Broward County, Florida, ProPublica found that it was 61 percent predictive of rearrest, “somewhat more accurate than a coin flip.” The algorithm was likely to indicate black defendants as “future criminals” at almost twice the rate as white defendants.

Northpointe disputes ProPublica’s findings. The back-and-forth can be read in full on ProPublica’s website.

This clash illustrates a new found popular interest in these tools. But using math to guide decision-making in the criminal justice system is not new. According to Richard Berk, a professor of criminology and statistics at the University of Pennsylvania, an Illinois parole board started to use algorithms in the 1920s.

“In the ‘20s, parole boards were worried about what parole boards are worried about today: If I release somebody, are they going to commit a horrible act?” Berk explains. Back then, the tools were simple mathematical tabulations that assessed risk by comparing people up for parole to those previously released.

Since then, the math behind these tools has improved accuracy, and technological advancement allows for statisticians to wrestle with bigger data sets through computers. However, the point remains: U.S. criminal justice systems have used math to guide decision-making for about a century.

Even with this history, how these tools affect equal protection and due process of defendants remains unresolved.

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GateHouse: Does Dylann Roof deserve to die?

Matthew T. Mangino

GateHouse Media

December 16, 2016

During a prayer service at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, Roof killed nine African Americans worshipers. Roof was quickly identified as the main suspect, and became the focus of a massive manhunt that ended quickly with his arrest in North Carolina. He later confessed that he committed the shooting in hopes of igniting a "race war."

Roof was convicted of 33 charges, nine of them involving hate crimes. Jurors began deliberating shortly after 1 p.m. on Wednesday. After about two hours they asked to review some evidence and came back within minutes with their verdict.

The next question is whether the jury will give Roof the death penalty. The penalty phase of the trial is set to begin on Jan. 3.

Are there some people that are just so evil that the death penalty is the only option? The death penalty has been on a steady downward curve since it reached a high of nearly 80 percent of Americans supporting it in 1994, according to Pew Research Center.

However, as W. James Antle III wrote in The Week, "Some crimes are so heinous; there is no other just punishment for them."

Antle wrote that Roof is the posterchild for the death penalty. He confessed to killing nine people praying is an historic church. The execution-style killings were premeditated and displayed a "burning in his (Roof's) heart."

Antle wrote many of the common objections to the death penalty do not apply in Roof's case. There is no doubt about his guilt. "I went to that church in Charleston and I did it," Roof confessed with a laugh. "Did you shoot them?" a law enforcement officer asked. "Yes," Roof replied, laughing again.

In the past, when support for the death penalty hovered at the mid-60 percent support, survey participants, when asked about specific cases like Timothy McVeigh or Saddam Hussein, support for executions rose above 80 percent.

In my book, "The Executioner's Toll, 2010," I wrote about a condemned inmate who cried out for the death penalty - literally - and deserved it as well.

John David Duty was in an Oklahoma penitentiary serving three life sentences after being convicted of armed robbery, kidnapping, first degree rape and shooting with intent to kill. It was December 2001 and Duty decided he that he had served enough time in prison, he and been in prison since 1978, and at the age of 49 he was not prepared to spend another 30 years in prison.

Duty did not try to escape or even commit suicide. He decided he would murder his cellmate, ask for the death penalty and have the state of Oklahoma put an end to his miserable existence in the state penitentiary system.

Duty's diabolical plan involved treachery, murder and the heartless effort to compound the suffering of his victim's family.

About an hour after killing his cellmate Curtis Wise, Duty sat down and wrote a cold blooded letter to Wise's mother.

The letter included the following: "Well by the time you get this letter you will already know that your son is dead. I know now because I just killed him an hour ago."

At some point after the murder, Duty wrote a second letter, this one to the district attorney's office. He told the DA if you don't execute me, "you're only telling me it's ok for me to kill again ...; Only next time it will be a guard or staff member."

The death penalty was the only way to keep Duty from killing again. Support for the death penalty may be waning but it still has utility in some cases.

- Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll, 2010," was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Using bias free risk-assessment tools to determine bail

We often hear about the 2.2 million people incarcerated in the United States. Much of the conversation revolves around those in state and federal prisons. But less frequently discussed is a smaller subset of the incarcerated population: the 744,600 Americans held in local jails, more than half of whom have not yet been convicted of a crime, reported The Christian Science Monitor. While some of these pretrial arrestees are considered a threat, many others are detained simply because they can't afford to bail themselves out. 

It's a system that favors the rich and punishes the poor, civil rights groups say. Furthermore, studies show that minorities are disproportionately affected by the current bail system: courts are more likely to view African Americans and Latinos as flight risks or public threats, often resulting in higher bail or mandatory pretrial detention.

Now, due to pushback from civil rights advocates and a desire to save government money, an increasing number of courts have begun using computer algorithms to assess risk. Such tools, proponents say, remove any implicit bias from the equation, producing a more objective assessment. 

As the pool of research grows and the science of risk assessment becomes more refined, "We actually have increasingly good models of who poses a risk and who doesn't pose a risk," John Pfaff, a professor of law at Fordham University, tells The Washington Post. 

The latest pretrial risk assessment tool is the Public Safety Assessment, developed by the Laura and John Arnold Foundation. Drawing from a database of over 1.5 million cases from more than 300 jurisdictions across the US, the algorithm calculates the probability that a defendant will commit a new crime, commit a new violent crime, or fail to return to court. 

The assessment takes into consideration a number of factors, including pending charges, prior convictions, whether the current offense is violent, and whether the person has failed to appear at other pretrial hearings. But unlike a human assessor, it's blind to race, gender, level of eduction, socioeconomic status, and neighborhood, all of which can affect a judge's decision, whether subconsciously or consciously.

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The future is now for sentencing in Pennsylvania

Officials in Pennsylvania, which has been slowly preparing to use risk assessment in sentencing for the past six years, are sensitive to these potential pitfalls, reported Bloomberg. The state’s experience shows how tricky it is to create an algorithm through the public policy process. To come up with a politically palatable risk tool, Pennsylvania established a sentencing commission. It quickly rejected commercial products like Compas, saying they were too expensive and too mysterious, so the commission began creating its own system.

To understand the algorithms being used all over the country, it’s good to talk to Richard Berk. He’s been writing them for decades. Berk, a professor at the University of Pennsylvania, is a shortish, bald guy, whose solid stature and I-dare-you-to-disagree-with-me demeanor might lead people to mistake him for an ex-cop. In fact, he’s a career statistician.

“Race was discarded immediately as an input. But every other factor became a matter of debate. When the state initially wanted to include location, which it determined to be statistically useful in predicting who would re-offend, the Pennsylvania Association of Criminal Defense Lawyers argued that it was a proxy for race, given patterns of housing segregation. The commission eventually dropped the use of location. Also in question: the system’s use of arrests, instead of convictions, since it seems to punish people who live in communities that are policed more aggressively.

Berk argues that eliminating sensitive factors weakens the predictive power of the algorithms. “If you want me to do a totally race-neutral forecast, you’ve got to tell me what variables you’re going to allow me to use, and nobody can, because everything is confounded with race and gender,” he said.

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Chicago judges ignore risk-assessment in bail decisions

Judges in Chicago's Cook County routinely make bail decisions for crime suspects contrary to what the court's new risk-assessment system calls for, The Crime Report.
A review of more than 1,500 cases this year obtained by the Chicago Sun-Times, found that he Cook County sheriff’s office showed judges’ bail decisions differed from the guidelines about 85 percent of the time. The sheriff’s study found bail decisions were “inconsistent,” even when defendants’ backgrounds and the charges they faced were factored in. The 90-page study, the results of which Chief Judge Timothy Evans disputes, found that the amount and conditions of bail varied widely depending on which judge was presiding on a given day.

 Illinois Supreme Court Justice Anne Burke, who pushed for the new system, said recently, “One of the key problems with our bond court judges is not just their unwillingness to apply the risk assessments when making their decisions but ... that they are not being sufficiently trained and supervised and are not being held accountable.”
The assessments assign a risk-level number that corresponds to a recommended bail. One aim was to identify more nonviolent suspects who qualify for release pending trial. Pat Milhizer, a court spokesman, says that in the three months before the assessments began, 52 percent of defendants in nonviolent, non-weapons felony cases were released; from January through May, that rose to 67 percent. Milhizer says training for judges doesn’t replace sound judgment. He points to a case in which the assessment system recommended releasing a man charged with gun possession even though he was accused of pointing the gun at someone and pulling the trigger twice, without it firing. Despite the recommendation, the judge set a significant bail.

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Are risk assessments racially biased?

Jesse Russell, PhD, chief program officer of the National Council on Crime & Delinquency, writes about risk assessments and sentencing for The Crime Report.  Below is an excerpt:

Risk assessment, at its best, can reduce bias in decision making. At its worst, it can propagate bias.

This is exactly why using risk assessment for sentencing in adult corrections is troubling. The adult corrections system is often racially biased and overwhelmingly punitive in nature. Risk assessments used at sentencing are being used to drive punishment as the risk score moves higher.

In a racially biased system, or in a society that has inequities, risk assessment will create a disproportionate impact on a particular group, in this case, African Americans.

The key fact we need to keep in mind is that before risk assessment has any chance to influence any individual’s corrections involvement, a long list of other factors has already established inequity in the system.

For example:

Federal housing policies like redlining made it difficult for some communities to sustain intergenerational economic prosperity;

Financial redlining created pockets of underserved communities with few resources that have been linked to higher arrest rates;

Policing practices have unfairly targeted black and African-American communities; 

Drug sentencing laws have had disproportionate impacts on black and African-American communities; 

Implicit biases affect how threatening African Americans are perceived to be by decision makers, as compared to whites. 

A history of institutionalized disenfranchisement of African-American communities has eroded the representativeness of democracy. 

The destructive myth of the African-American “super predator” has shaped criminal justice policy and practice. 

Until and unless these types of structural and implicit inequities are resolved and untethered from the adult corrections system, use of fair and equitable risk assessment tools will not be sufficient to transform adult corrections in the United States.

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GateHouse: Sentencing schemes result in longer sentences for aging offenders

Matthew T. Mangino

GateHouse Media

June 3, 2016

The number of prisoners over the age of 55 serving more than one year in state prisons increased from 26,300 to 131,500 in the last two decades, according to a study released this week by the Department of Justice, Bureau of Justice Statistics.

Research has shown that all but a small minority of criminals, even violent ones, mature out of crime before middle age, meaning that long sentences for aging offenders does little to prevent crime.

Homicide rates peak at age 19, according to The Marshall Project, while arrest rates for forcible rape peak at 18. Some crimes, such as vandalism, crest even earlier, at age 16, while arrest rates for forgery, fraud and embezzlement peak in the early 20s.

The BJS study, entitled “Aging of the State Prison Population, 1993-2013,” written by E. Ann Carson and William J. Sabo, found prison admissions for people 55 and older increased by 82 percent between 1993 and 2013.

The average sentence length for prisoners older than 55 was 82 months in 2014, higher than the 69 months for the 18- to 39-year-old prisoners, and the 71 months for the 40- to 54-year-old prisoners.

Research by Carnegie Mellon University Professor Alfred Blumstein has found that for the eight serious crimes closely tracked by the FBI — murder, rape, robbery, aggravated assault, burglary, larceny-theft, arson and car theft — a span of five to 10 years in the life of an offender is the typical duration during which these crimes are committed.

Property criminals, like burglars and car thieves, tend to stop in the 20s, while violent criminals are more likely to continue into their early 30s. Drug-crime careers can be lengthier, yet long sentences have had little effect on drug crime. “When you lock up a rapist, you take his rapes off the street. When you lock up a drug seller, you recruit a replacement,” Blumstein told The Marshall Project.

Why does society lock away those least likely to commit crime for the longest periods of time?

To start with, state and federal sentence guidelines have not kept up with evolving science and research. Most states, and the federal government, have guidelines for assisting the court in sentencing. Although, not bound by those guidelines, most judges fall in line.

Sentence guidelines are normally based on two factors — the seriousness of the offense and the defendant’s criminal history. The more serious the offense, combined with a long history of crime, the longer the sentence.

It is difficult for a 19-year-old to accumulate a long criminal record. However, a 40-year-old has had 22 years to collect criminal convictions.

There are actuarial tools — risk assessments — available that can predict the dangerousness of an offender. These tools target younger offenders who are more likely to offend — and more likely to be violent — than their older counterparts, yet the guidelines call for longer sentences for the aging offender.

Many court systems use risk assessments to enhance decisions regarding parole release, probation supervision and, increasingly, to determine pretrial detention and bail decisions.

Pennsylvania is about to take a step most states have resisted for adult defendants. According to Fivethrityeight.com, Pennsylvania is about to bring risk assessment into the sentencing equation.

The Pennsylvania Commission on Sentencing has been charged with incorporating a risk assessment tool into the state’s Sentencing Guidelines. When implemented the new guidelines could allow those considered low-risk offenders to get shorter prison sentences and those deemed high risk to spend more time in prison.

The result would be to keep those young violent offenders we fear behind bars and those aging offenders, we’re merely tired of and mad at, out of prison and off the public dole.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Risk of future crime will soon be part of Pennsylvania sentencing scheme

Pennsylvania will introduce risk assessment into sentencing by next year.  It was part of a 2009 package of reforms for the Pennsylvania Department of Corrections, reported the Harrisburg Patriot-News.

"To me, this is a no-brainer," said Corrections Secretary John Wetzel. "This is inserting science and data into decision-making."

However, there are concerns about basing prison sentences on crimes that haven't been committed yet. Some compare it to the film 'Minority Report,' in which the police arrest people for crimes that haven't occurred yet.

Wetzel, on the other hand, compares it to setting car insurance rates. Insurance companies use factors -- like age and gender -- to determine someone's risk of getting into a collision and then set rates.

Risk assessment, he said, is similar.

"I'm kinda baffled by the controversy," Wetzel said.

Bret Bucklen, director of planning, research, statistics and grants for the department, said judges currently use two "scores" to determine someone's jail sentence.

The first is the offense gravity score, which weighs the severity of the crime. And the second is the prior record score, which takes into account past crimes. Those two scores, Bucklen said, are put into a grid and they help a judge determine a jail sentence.

Risk assessment is a new way of approaching criminal sentencing. Risk assessment uses certain factors -- including age, prior arrests and types of prior crimes -- to inform a judge of a person's likelihood that they will commit another crime.

Commission Executive Director Mark H. Bergstrom said a judge would have the option to use a person's risk assessment in sentencing but would not be required to.

Someone found to have a low risk of recidivism might get a lesser sentence while others with a higher risk could get a longer sentence. A risk assessment, Bergstrom said, might also help a judge determine a specific program or alternative to incarceration for a convicted criminal.

"We recognized that this is not only about increasing or decreasing the duration of the sentence, it's more about how to affect the sentence, what should be a part of that sentence," he said.

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