Computerized Discrimination In Criminal Justice


The most sacred responsibility of any lawmaker is to ensure that we protect the people we serve. That means everybody, not just certain select groups. Unfortunately, when it comes to criminal justice in Idaho, existing practices in the state threaten the very concept of fairness guaranteed to all of its citizens. The current use of risk assessment to determine the fate of persons who have been arrested and charged with committing a crime, represents a fundamental failing of our system.

So what are risk assessment algorithms and what do they do? Basically, they accumulate a bunch of data, and then using arcane computations, determine which factors correlate with a higher risk of committing a new crime, as well as the risk of failing to appear in court as required. Next, categories of risk are created — either low, medium or high, or using a numerical scale of increasing risk, e.g., one through six (1-6). Judges and other government officials then use this information to label people, i.e., put them into categories for purposes of sentencing or setting bail and conditions of release.

Unfortunately, studies have shown that risk assessment is flawed. In 2016, ProPublica published a report entitled Machine Bias: There’s Software Used Across the Country to Predict Future Criminals. And It’s Biased Against Blacks. The title says it all. Research by the authors revealed that the algorithm used in part to predict recidivism for purposes of sentencing, was biased against African-American defendants. Called the COMPAS tool, it was also the subject of a lawsuit in Wisconsin, in which a criminal defendant asserted that it was similarly biased against men.

These two revelations set off a tidal wave of inquiry by scholarly researchers who sought to determine the actual science behind the use of risk assessment algorithms.

The subsequent reaction has been extremely strong. Late last year, a policy statement calling for the nation-wide elimination of pretrial risk assessments was issued by 110 national civil rights groups, which included the Leadership Conference of Civil Rights Organizations, ACLU, and NAACP.

Unfortunately, there is currently a movement to expand risk assessments in Idaho. Allowing this to happen would be reckless, especially when no one has ever bothered to test these particular algorithms for bias. This would not only be bad public policy, it could expose courts and other users of the algorithms to claims of discrimination.

We cannot tolerate the continuing use of pretrial risk assessments when they are known to be biased, as research into the COMPAS tool has proven. Further, we cannot even consider using them again, unless and until they have been proven to be bias-free, when it comes to persons in protected classes, such as age, gender, race and national origin. It is critical that we exercise extreme caution to not magnify the racial bias that already exists in the system.

With all that in mind, what are we doing in Idaho to address and fix the flaws in our system? The answer is stark, problematic and deeply disturbing: absolutely nothing.

Accordingly, this week I introduced legislation that would put Idaho at the forefront of this issue. It aims to ensure that all of our citizens — wherever they came from, whatever they look like and whoever they are — are able to enjoy the equal protection of our state laws. If we are to be a truly free people, it is crucial that we make every effort to protect individuals from computerized discrimination.

The bill is very straightforward. It states that tools that are biased against protected classes cannot be used in Idaho.

Despite significant opinion and scholarly research to the contrary, I do hold out a degree of hope that the bias problem can be fixed so that we can use more evidence-based practices in our system. Providing judges in Idaho with an additional tool to help them make decisions may not necessarily be a bad thing.

For any lawmaker to stand on the sidelines, knowing there are serious issues with bias in these algorithms and to do nothing about this problem, is to evince a lack of courage that is contrary to the values of Idaho going back to statehood. Esto Perpetua, our state motto, means “Let it be perpetual.” In this critical matter, we must also guarantee that the right to equal protection under the law and to be free from discrimination is a perpetual right to all people in our great state.

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