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Booker Schatz Press DOJ, U.S. Sentencing Commission to Review Automated Methods for Determining Prison Terms

Sentencing Commission failed to complete DOJ-requested report on use of algorithm-based risk assessment tools in determining prison sentences

February 6, 2018
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WASHINGTON, D.C. – U.S. Senators Cory Booker (D-NJ) and Brian Schatz (D-HI) today pressed the Department of Justice (DOJ) and the U.S. Sentencing Commission (USSC) to complete a study on the use of algorithmic risk assessment tools for determining prison terms, setting bail, and even supporting findings of guilt or innocence.  The USSC failed to comply with DOJ instructions from 2014 asking for a report on the topic.


In a letter sent today to Attorney General Jeff Sessions and USSC Acting Chair William H. Pryor, Jr. the Senators asked why the USSC has not completed the study and encouraged the agency to do so within the next six months. The initial 2014 report was requested because of the DOJ’s concern that such algorithm-based risk assessment tools were leading prison terms to be increasingly based on a person’s demographic characteristics such as age, sex, education level, family circumstances, employment status, and drug history.


“There are valid concerns that some algorithms may exacerbate racial disparities by relying on socioeconomic factors correlated with race or ethnicity to set bail, determine sentencing, and even contribute to ultimate determinations of guilt or innocence. Given these concerns about fairness and transparency, we are troubled that the Commission has not taken the time to explore this issue,” the Senators wrote in the letter.


“We urge the USSC to take these concerns seriously and request that within the next six months it complete a study of algorithmic risk assessment tools and also issue a policy statement to guide jurisdictions implementing these tools,” the Senators added.


The full text of the letter is available here and below:


The Honorable Judge William H. Pryor, Jr.

Acting Chair     

United States Sentencing Commission

One Columbus Circle, NE

Suite 2-500, South Lobby

Washington, DC 20002

The Honorable Jefferson Sessions

Attorney General                               

United          States Department of Justice

950 Pennsylvania Ave NW

Washington, DC 20530                              


Dear Attorney General Sessions, Judge Pryor, and Sentencing Commission:

Last month it was revealed that the United States Sentencing Commission (USSC) did not comply with instructions from the Department of Justice (DOJ) in 2014 to prepare a study of algorithm-based risk assessment tools and their uses in federal sentencing and corrections. We are writing to find out why the USSC failed to complete the study and to encourage it to do so within the next six months.


The Sentencing Reform Act of 1984 requires the DOJ’s Criminal Division to submit to the USSC an annual report which comments on sentencing guidelines, suggests warranted changes, and assesses the USSC’s work.[1] The annual report sent to the USSC on July 29, 2014 requested a study as well as a policy statement on the proper role of risk assessment in the federal criminal justice system.[2] It expressed DOJ’s concern about the use of risks and needs assessments in sentencing and corrections.  Specifically, it cautioned against the growing trend of basing imprisonment terms on factors such as education level, employment history, family circumstances, and demographic information, instead of the crime committed and proven in court. Three days later, in a speech to the National Association of Criminal Defense Lawyers, then U.S. Attorney General Eric Holder expressed similar concerns and urged the USSC to study the use of data in front-end sentencing and to issue a report with recommendations based on careful, independent analysis.[3]  Despite these clear and imperative instructions, the requested report was not released in 2014 or 2015.


On June 15, 2016, the Electronic Privacy Information Center (EPIC) submitted a Freedom of Information Act (FOIA) request to DOJ regarding DOJ’s use of various algorithm-based risk assessment tools. (Attachment A)  In March 2017 EPIC filed a lawsuit seeking release of the records requested, including a copy of the report requested in 2014 by Attorney General Holder and the Criminal Division.  Last month, after having conferred with “knowledgeable Department personnel”, DOJ finally acknowledged to the court in a December 14, 2017 Joint Status Report that the USSC simply did not issue the report on risk assessment tools as instructed by Attorney General Holder and the Criminal Division in July 2014. (Attachment B) We are requesting that you provide the Senate Judiciary Committee and the Senate Commerce, Science, & Transportation Committee an update about the status of that report as soon as possible. We would also appreciate information on whether the USSC ever actually attempted to conduct the evaluation as requested, and why the accompanying report was never issued.


The use of risk assessment tools in the criminal justice system is widespread and steadily increasing. There are currently several pieces of legislation before Congress which would require the Bureau of Prisons to use risk and needs assessment systems. At all levels, policy makers and others need to better understand what factors influence decisions in the criminal justice system. Risk assessments make judgments about individuals based on group tendencies, which raises questions of fairness. There are valid concerns that some algorithms may exacerbate racial disparities by relying on socioeconomic factors correlated with race or ethnicity to set bail, determine sentencing, and even contribute to ultimate determinations of guilt or innocence.[4] Given these concerns about fairness and transparency, we are troubled that the Commission has not taken the time to explore this issue.


We urge the USSC to take these concerns seriously and request that within the next six months it complete a study of algorithmic risk assessment tools and also issue a policy statement to guide jurisdictions implementing these tools.


Thank you for your attention to this important issue and for your consideration of our requests.

Sincerely,

_________________________                               _________________________

Cory A. Booker                                                       Brian Schatz

United States Senator                                              United States Senator



[1] 28 U.S.C. § 994(o).

[2] Letter from Jonathan Wroblewski, Director of the Office of Policy Legislation to Patti Saris, Chair of the Sentencing Commission (July 29 2014), available at https://www.justice.gov/sites/default/files/criminal/legacy/2014/08/01/2014annual-letter-final-072814.pdf.

[3] Attorney General Eric Holder, Remarks at the National Association of Criminal Defense Lawyers 57th Annual Meeting (Aug. 1, 2014), available at https://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-national-association-criminal-defense-lawyers-57th.

[4] Laurel Eckhouse, Big Data May Be Reinforcing Racial Bias in the Criminal Justice System, Washington Post, Feb. 10, 2017, available at https://www.washingtonpost.com/opinions/big-data-may-be-reinforcing-racial-bias-in-the-criminal-justice-system/2017/02/10/d63de518-ee3a-11e6-9973-c5efb7ccfb0d_story.html?utm_term=.87ee460681e8; Julia Angwin & Jeff Larson, Racial Bias in Criminal Risk Scores is Mathematically Inevitable, https://psmag.com/news/racial-bias-in-criminal-risk-scores-is-mathematically-inevitable