There are many probation departments who rely on risk assessment tools in making recommendations about bail, eligibility to be in a drug court, and sentencing. Proponents argue these assessments make the criminal justice system more fair. Many judges and many lawyers have a cursory knowledge of the tools used in their jurisdiction. But, what if the tool used in your jurisdiction has flaws?
University of California, Berkeley
University of Virginia School of Law
Government of the United States of America – Administrative Office of the U.S. Courts
January 18, 2016
Increasingly, jurisdictions across the U.S. are using risk assessment instruments to scaffold efforts to unwind mass incarceration without compromising public safety. Despite promising results, critics oppose the use of these instruments to inform sentencing and correctional decisions. One argument is that the use of instruments that include gender as a risk factor will discriminate against men in sanctioning. Based on a sample of 14,310 federal offenders, we empirically test the predictive fairness of an instrument that omits gender, the Post Conviction Risk Assessment (PCRA). We found that the PCRA strongly predicts arrests for both genders — but overestimates women’s likelihood of recidivism. For a given PCRA score, the predicted probability of arrest — which is based on combining both genders — is too high for women. Although gender neutrality is an obviously appealing concept, it may translate into instrument bias and overly harsh sanctions for women. With respect to the moral question of disparate impact, we found that women obtain slightly lower mean scores on the PCRA than men (d= .32); this difference is wholly attributable to men’s greater criminal history, a factor already embedded in sentencing guidelines.