Who’s really bringing contraband into jails? Our 2018 survey confirms it’s staff, not visitors

When jails cut family visits in the name of security, advocates should demand evidence.

by Jorge Renaud, December 6, 2018

Sheriffs are increasingly welcoming video calling technology into their jails, with more than 500 local jails now contracting with video calling providers like GTL and Securus. Usually, sheriffs simultaneously do away with in-person visits, despite studies showing that they are crucial for maintaining family bonds.

To ward off claims that this is just a money-grubbing scheme, sheriffs invoke the argument that doing away with face-to-face visits “increase[s] the safety and security of our facilities,” presumably by stopping contraband brought in by jail visitors.

This argument is demonstrably false, and yet jail administrators repeat it at every possible opportunity. Sheriffs raise the specter of visitors loaded down with drugs, somehow passing them through physical searches and through body scanners and through glass partitions, with the only solution being a move to remote technology. For one thing, this scenario is implausible, given that in-person jail visitors are virtually always separated from their loved ones by a glass window. But more importantly, by blaming contraband on in-person visitors, sheriffs distract from a far more likely source: jail staff.

I reviewed news stories of arrests made in 2018 of individuals caught bringing contraband into jails and prisons. What I found wouldn’t surprise any person in jail, but it’s a truth that sheriffs prefer to avoid: Almost all contraband introduced to any local jail comes through staff. This year alone, 20 jail staff members in 12 separate county jails were arrested, indicted, or convicted on charges of bringing in or planning to bring in contraband.

In fact, most of the jails in question had recently eliminated in-person visits in favor of video calls – a technology which, again, is supposed to reduce contraband.

Moving to video calling has financial benefits for jails, and those benefits have convinced sheriffs to overlook the importance of in-person visits for incarcerated individuals and their families. While rates charged for video calls vary, almost every jail that offers video calling receives commissions from the provider. Video calling also reduces the number of jailers necessary to monitor visitation, allowing sheriffs to cut their payroll.

In order to realize those financial benefits, sheriffs have to justify taking away children’s right to see their parents in person. And that means blaming families for contraband, even when that claim has no legs to stand on.

If any sheriff has ever commissioned a study to back up their claim that banning in-person visits makes jails safer, they’ve never cited one. However, multiple studies (including one we assisted with) do suggest that banning in-person visits makes jails less safe overall, with no reduction in contraband.

Advocates for in-person visits should demand that sheriffs provide proof of their claims. Banning in-person visits means more money for jails at the expense of family connections. We can’t let the sheriffs’ baseless assertions to the contrary go unchallenged.

Our most important successes over the last year

We've had an incredibly productive year. In our new annual report, we share the highlights.

by Peter Wagner, November 29, 2018

We just released our 2017-2018 Annual Report, and I’m thrilled to share some highlights of our work with you. We’ve had an incredibly productive year, releasing 11 major national reports, exposés, legislative briefings, and guides for advocates and journalists.

There are a few successes I’m particularly proud of:

• Releasing our most detailed version yet of Mass Incarceration: The Whole Pie, including richer data on pretrial and immigrant detention as well as separate “whole pie” reports about women and youth.
• Calculating the first national unemployment rate for formerly incarcerated people, sparking much-needed discussions about reentry reform.
• Winning editorial board support as we fight the merger between Securus and ICSolutions, which would effectively render the prison phone industry a duopoly.
• Revealing how prisons unscrupulously trim their budgets by overcharging incarcerated people and their families for basic goods and services, to the benefit of private companies.
• Helping state lawmakers reverse a relic from the War on Drugs that prohibits people convicted of drug offenses from driving. (We’ve seen tremendous progress on this issue in 2018, with three states and D.C. passing reforms.)

But that’s not all. In our highly-skimmable annual report, we review our work on all of our issues over the last year. Thank you for being a part of our successes over the last year. We are looking forward to working with you in the year to come.

Mujahid Farid dies at 69

by Peter Wagner, November 21, 2018

Mujahid Farid, the founding organizer of a campaign to reduce the number of elderly and infirm people in New York State prisons, died yesterday at 69. His Release Aging People in Prison campaign in New York State – known as the RAPP Campaign – was critical:

Release Aging People in Prison/RAPP works to end mass incarceration and promote racial justice by getting elderly and infirm people out of prison. The number of people aged 50 and older in New York State, where RAPP was founded, has doubled since 2000; it now exceeds 10,000—about 20% of the total incarcerated population. This reflects a national crisis in the prison system and the extension of a culture of revenge and punishment into all areas of our society.

I got to spend some time with Farid at a conference in 2014, and offered to use our knowledge of the New York State prison system’s data to help visualize what Farid already knew: that New York’s much-heralded prison population decline was confined solely to the population of people under 50 and the elderly were being left behind. We’ve updated that graph and analysis a few times, most recently just three weeks ago:

Since 1992, the number of people age 50 and older incarcerated in New York state prisons has steadily increased, while the populations of every other age group have declined dramatically.

And at that same conference in 2014, Leah Sakala and I shot a short interview with Farid when the RAPP Campaign was just starting:

Each summer since, I’d see Farid at that same conference, and checking in with him was always a highlight. He’ll be greatly missed. Thank you for your work, Mujahid Farid.

New York State’s elderly prison boom: An update

Despite recent positive reforms, New York's elderly prison population continues to grow.

by Maddy Troilo, November 1, 2018

Several years ago, we reported on the elderly prison boom in New York; I thought it was time to update our analysis to examine the impact of recent reforms to the state’s Parole Board.

First, for context, a brief summary of New York’s parole reforms: After sustained effort by advocacy groups, the New York State Board of Parole revised the guidelines that shape their practices–long documented to be harmful to incarcerated people and their families–in September 2016. In June of that year, a campaign to change the composition of the Parole Board was successful, and Governor Cuomo appointed new Parole Commissioners with more diverse backgrounds and no history of abusing the position.

Advocates hoped these changes would increase the rate at which aging and elderly people in New York prisons are granted parole, and alleviate some of the “graying” of the state’s prisons. That happened, to a degree: this year, Release Aging People in Prison (RAPP) found that the Parole Board’s release rates have increased for people 50 or older from 24% to 40%. That change marks meaningful progress, but was it enough to reverse the growth in New York’s aging and elderly prison population?

Unfortunately, no. I found that even as the incarceration rate for all other age groups declines, the number of people age 50 and over incarcerated in New York continues to rise rapidly:

Since 1992, the number of people age 50 and older incarcerated in New York state prisons has steadily increased, while the populations of every other age group have declined dramatically.

As we showed in 2015, this rapid increase must be the result of decisions about release, because the number of aging and elderly people admitted to New York prisons only increased slightly. That’s certainly still the case, but I can’t update our graph of the commitment data because the New York Department of Corrections and Community Supervision hasn’t published any new data on people’s age at admission since 2014.

New York needs to do better; aging and elderly people shouldn’t be left behind as younger people continue to benefit from the state’s overall decline in incarceration. The state can begin by making these further changes:

• Seat more people on the board to combat understaffing and dismissing those who abuse and misuse their positions
• End the use of the “nature of the crime” as a factor in parole decisions
• Give more weight to people’s accomplishments while incarcerated
• Institute a meaningful presumption of release at first eligibility
• Acknowledge the fact that elderly people pose no substantial risk to public safety.

The new reforms are important progress, but much more needs to be done. For more information on the campaign to improve the New York Parole Board, see RAPP’s report New York State Parole Board: Failures in Staffing and Performance.

Criminal justice reform at the ballot box: Even County Auditors are worth your attention

In some counties - like Multnomah County, Oregon - auditors are joining the movement to hold jails accountable.

by Wanda Bertram, October 31, 2018

Jail reform is on the ballot next week in Multnomah County, Oregon, but it isn’t part of a popular initiative or gubernatorial campaign. It’s a key issue at stake in an unlikely, historically “boring” race: the race for County Auditor.

What could a County Auditor possibly do to reform criminal justice policy? Five years ago, the same question might have been asked about district attorneys or sheriffs. But as the public comes to understand the role that prosecutors, sheriffs and other local electeds can play in reversing mass incarceration, those offices are becoming centers of reform in some areas. The Auditor’s office could be next.

If you think of auditors as glorified bookkeepers, both of the candidates in Multnomah County’s runoff election would disagree. Candidate Scott Learn’s website says the Audit Office “needs to focus far less on informational reports…and far more on helping to improve the effectiveness of crucial county services.” He’s interested in auditing probation and parole services, the local juvenile detention center, and mental health services at the county jail.

Learn’s opponent, Jennifer McGuirk, says that “one of the Auditor’s most important responsibilities is deciding which programs to audit.” McGuirk, too, plans to audit the county’s jails. She was inspired to run after reports emerged of racist abuse in the jails, reports that the previous County Auditor declined to look into.

To be sure, Learn and McGuirk are departing from how auditors have traditionally done their jobs. County Auditors are mainly tasked with rooting out local agencies’ mismanagement of funds.

But to be clear: Abusive, inhumane treatment by criminal justice agencies is a misuse of funds. Jails receive public money (and quite a lot of it) for the purpose of “providing effective detention, rehabilitation, and transition services,” as the Multnomah County Sheriff’s website puts it. Human rights violations fall somewhat outside of this mission, so it’s logical that the County Auditor’s office should investigate.

With two reform-minded candidates neck-and-neck in this race, it’s clear that Multnomah County voters agree that justice reform should be a priority. Will your city or county be next?

Should prosecutors and survivors have a voice in shortening long sentences?

It’s become habit to consult prosecutors and victims during the release process. States should break that habit.

by Jorge Renaud, October 25, 2018

While working on an upcoming report about how to shorten long prison sentences, I was disappointed to see that the same experts urging reform are reflexively endorsing part of the status quo. Criminal justice researchers are urging states to change how they consider release for individuals with lengthy prison sentences. However, these reformers continue to recommend that states solicit the input of prosecutors and survivors when making release decisions.

These recommendations reflect established practice rather than progressive policy. States should leave decisions about an individual’s release to professionals who understand that person’s behavior and needs.

Why should prosecutors have a role in the “mercy” process?

The deference shown to prosecutors reaches every aspect of the criminal justice system. Even the reformers who recommend consulting prosecutors on parole decisions and second-look sentencing, however, fail to explain why their involvement is needed in these post-sentencing processes. It strikes me as counterintiuitive that the official responsible for seeking someone’s lengthy sentence should be consulted about that person’s release, yet those recommendations continue.

For example, in the recently approved revision to the Model Penal Code, The American Law Institute recommends a “second-look” provision that would provide review and possible relief to incarcerated individuals who have spent at least 15 years in prison. However, it also recommends that “notice of the sentence-modification proceedings should be given to victims, if they can be located with reasonable efforts, and to the relevant prosecuting authorities.”

I found it almost impossible to find a policy that would mitigate the time a convicted individual must serve, or a parole decision to be made, where it is not recommended – and in some cases mandated – that the deciding officials give prosecutors a chance to weigh in:

• When asked what “sources of input” were considered in release decision-making, 34 of 38 respondents from state parole decision-making bodies said “district attorneys.”
• In 12 of the 24 states profiled by the Robina Institute, state parole decision-making bodies must notify the prosecuting attorney when an individual is being considered for parole; one state mandates a prosecutor’s input must be solicited when an individual with a life sentence is being considered for parole; and 11 states require that the decision-making bodies provide information to the prosecutors upon their request.

This deference toward prosecutors is uncalled for, especially when the only information prosecutors can provide relates to the crime – not to the more important question of whether the person under review has undergone a transformation while incarcerated. Prosecutors are particularly unfit to determine whether individuals they have not seen in years or decades still pose a threat to public safety. As Prof. R. Michael Cassidy at Boston College Law School puts it in a forthcoming paper, “prosecutorial input at parole hearings is likely to accomplish very little beyond either grandstanding for the media or intimidating the parole board into being risk-averse in close cases.”

Recall that between 95 and 97% of all felony convictions are the result of plea bargains between defendants and prosecutors. In offering and accepting a plea bargain, a prosecutor determines when the defendant may be eligible for release and accepts that possibility in exchange for the certainty of a conviction. Whether individuals thus convicted are actually released at that first eligibility date should not be the prosecutor’s concern, only that of the parole board, commutation official, or judge taking a second look.

Finally, there is a strong argument that prosecutorial overreach is responsible for explosive prison growth, both in the numbers of individuals in prison and the astonishingly long sentences many of them have. Although there has been movement toward a progressive prosecutorial approach, exemplified by D.A. Larry Krasner in Philadelphia, it remains to be seen if that approach extends beyond those charged with drug possession and non-violent property crimes. In any case, states should reconsider their choice to include prosecutors in the “mercy” process, given that the punitiveness of prosecutors has created a prison boom.

Should the release process include the views of survivors?

The voices of survivors have become a welcome part of criminal justice proceedings, as they should be. Survivors have an intimate stake in what happens after individuals are sent to prison. But this valuable perspective should be channeled towards advising prison programming, not release. The decision to release an individual should be informed exclusively by an understanding of that individual’s behavior and needs – information that survivors, like prosecutors, simply do not have.

Many people assume that all survivors of violence fit their image of a bereaved family member angrily demanding that a convicted individual be sentenced to life in prison. While many survivors do ask for lengthy prison terms for their attackers, a more accurate picture is presented by a 2016 national survey of survivors of violence commissioned by the Alliance on Safety and Justice. The survey revealed that:

• 60% of victims preferred shorter prison sentences and more spending on prevention and rehabilitation to longer prison sentences;
• Victims were three times more likely to prefer holding people accountable through options other than prison, such as rehabilitation, mental health and drug treatment, and community supervision;
• Victims were also three times more likely to believe that prison makes people more likely to commit crimes than to rehabilitate them;
• And perhaps most poignantly, seven out of 10 victims of violent crimes preferred that prosecutors focus on solving neighborhood problems and stopping repeat crimes through rehabilitation, even if that meant fewer convictions and prison sentences.

To that end, survivors are uniquely positioned to push state departments of corrections to implement programming that focuses on transformation – on nourishing remorse that is grounded not in shame, but in recognition of harm and responsibility. Survivors’ rights groups should be consulted when policymakers are deciding which programs to offer to incarcerated individuals to prepare them for their eventual release.

However, the decision to release an incarcerated individual, or to mitigate that person’s sentence, should be made by professionals with an understanding of that person’s behavior and needs. It should also include input from those who have been in contact with those individuals throughout their incarceration.

Rather than critique the involvement of survivors outright, reformers have proposed meaningless compromises that effectively insult survivors. Reformers suggest, paradoxically, that survivors be allowed to speak at parole hearings but not to recommend approval or denial of parole. That ignores the emotional weight any testimony of a survivor of violence will have on decision makers.

Restorative justice may find a place in our criminal justice system, allowing survivors of violence to heal in ways besides demanding long prison terms for those who have wounded them. Prosecutors may realize that a truly progressive approach means not seeking unimaginably long sentences rooted in retribution. Until then, neither prosecutors nor survivors should have a meaningful voice deciding whether or not to deny freedom to an individual who has served a lengthy sentence.

Police stops are still marred by racial discrimination, new data shows.

So why does Trump continue to endorse stop-and-frisk?

by Alexi Jones, October 12, 2018

President Trump is again encouraging Chicago police to use stop-and-frisk – a policy that allows police officers to stop citizens for virtually any reason – even as new government data reminds us why such policies can be disastrous for people of color. Just days after Trump endorsed stop-and-frisk in Chicago, the Bureau of Justice Statistics released its new report on interactions between police and the public, using survey data from 2015. The report reminds us that police stops and use of force are already racially discriminatory, with predictable consequences for public trust of the police.

The report reveals:

• Black residents were more likely to be stopped by police than white or Hispanic residents, both in traffic stops and street stops.
• Black and Hispanic residents were also more likely to have multiple contacts with police than white residents, especially in the contexts of traffic and street stops. More than 1 in 6 Black residents who were pulled over in a traffic stop or stopped on the street had similar interactions with police multiple times over the course of the year.
• When police initiated an interaction, they were twice as likely to threaten or use force against Black and Hispanic residents than white residents.

These racial disparities in policing have predictable effects on public trust of the police:

• There were marked racial differences in perceptions of police behavior and legitimacy of police stops. Less than half of Black and Hispanic residents stopped on the street by police thought the stop was legitimate, while two-thirds of white residents did. And 60% of Black residents who experienced the threat or use of force perceived the force as excessive, compared to 43% of white residents who experienced force.
• White residents were more likely than Black, Hispanic, and residents of other races to initiate contact with police – for example to report a crime, a non-crime emergency, or to seek help for another reason. 46% of white residents who had contact with police initiated the contact, compared to less 37% of Black residents.

The report’s findings related to the use of force are particularly relevant to the national conversation about policing. The scale of police use of force alone is overwhelming. Nearly 1 million U.S. residents age 16 or older experienced the threat or use of force by police in 2015. And the people experiencing threats or use of force by police were disproportionately Black and Hispanic.

Previous local studies suggest that stop-and-frisk is particularly discriminatory. In 2010, near the peak of the city’s use of stop-and-frisk, Black residents in New York City were 8 times more likely to be stopped by the police than white residents and 11 times more likely to be frisked. And in 2011, New York City police reported using force in 23% of stops of Black and Latino residents, but in only 16% of stops of white residents.

Given these past and current policing disparities, it is not surprising that Black and Hispanic communities are less trusting of police. As the BJS report shows, Black and Hispanic people are less likely view the use of force as legitimate and less likely to seek help from police compared to white people. This is in line with Pew’s 2016 finding that only about a third of Black Americans believe that police treat racial and ethnic groups equally and that police in their community used the appropriate amount of force, compared to three-quarters of white Americans.

These disparities undermine the legitimacy of law enforcement and create a two-tiered policing system; moreover, they compromise public safety. If residents do not trust the police, they are less likely to report crimes and cooperate with police investigations. So despite what Trump says, stop-and-frisk remains as bad a policy as ever. Police should be looking to address these disparities, not implementing a policy that exacerbates them.

Philadelphia Inquirer exposes Pennsylvania’s complicity in cutting off incarcerated people’s access to books

The Pennsylvania DOC introduces a telecom company to a large, captive market for e-books.

by Wanda Bertram, September 21, 2018

Pennsylvania prisons just ended book donations to incarcerated people, claiming they’ve found a new, better way to provide access to books. Their bright idea? Partnering with telecom giant GTL to sell e-books on tablet computers.

Prison tablets, as we’ve shown, deliver low-quality services at frequently exorbitant prices. Email on a prison tablet requires a paid “stamp.” If that’s an acceptable substitute for email, we wondered, what does GTL think passes for a library?

I intended to find out, but the Philadelphia Inquirer beat me to it, with an article this morning revealing just how insufficient GTL’s book list is. Many of the most popular books among incarcerated people – including dictionaries – are missing. Read the excellent full article here, or my summary on Twitter:

Thread: Pennsylvania prisons are cutting off book donations and replacing them with e-books on tablets. Journalist @samanthamelamed tracked down the list of books. It’s worse than you think. 1/5

— Prison Policy Init. (@PrisonPolicy) September 21, 2018

GTL, which sells the tablets and e-books, gets a lot of its content from Project Gutenberg for free. Then it re-sells the free books for up to $12. 2/5https://t.co/d3BMTNGLY4

— Prison Policy Init. (@PrisonPolicy) September 21, 2018

If that isn’t bad enough, GTL’s list excludes many of the books that incarcerated people request most often. Books that a donation program could supply. 3/5 pic.twitter.com/Hozi3v9f1h

— Prison Policy Init. (@PrisonPolicy) September 21, 2018

Remember this person, who wanted a dictionary? They won’t find one on GTL's e-book list. 4/5 pic.twitter.com/JFRvCGv8B1

— Prison Policy Init. (@PrisonPolicy) September 21, 2018

Pennsylvania DOC says this is no big deal, because there’s still the prison library. Incarcerated people take exception. 5/5 pic.twitter.com/dsaJ65LVJI

— Prison Policy Init. (@PrisonPolicy) September 21, 2018

The only question left by the @PhillyInquirer article is whether the DOC's decision was born of malice or negligence. Given the timing and GTL's history, both are possible explanations.

— Prison Policy Init. (@PrisonPolicy) September 21, 2018

Prison tablets are touted as bringing the outside world to incarcerated people, but all they seem to be doing is bringing a new, captive market to telecom giants. Pennsylvania should allow groups that donate books – groups that walk these companies’ talk – to keep doing their valuable work.

Progress: With reforms in Iowa and Utah, 12,000 fewer people will be denied driver’s licenses every year

Two more states have opted to help safe drivers get their lives back on track after drug convictions.

by Aleks Kajstura, August 29, 2018

Two more states have stopped suspending driver’s licenses for drug offenses unrelated to driving, one of the most counterproductive policies to emerge from the War on Drugs. In January, this law was still on the books in 12 states and D.C. But with D.C.’s reversal in February and Utah and Iowa following suit, the number is now just 10, suggesting that this remains one of the most winnable justice reforms of the moment.

This marks great progress since the release of our report Reinstating Common Sense, which tracks the growing number of states rejecting this outdated and ineffective federal policy. We found that suspending the licenses of safe drivers makes the roads more dangerous, wastes law enforcement resources, and inhibits people with previous involvement in the criminal justice system from fulfilling personal, familial, and legal obligations.

These odd laws were a product of the War on Drugs, when states were eager to pile on any sort of penalties for drug offenses. In 1991 Congress started supporting automatically suspending driver’s licenses for drug offenses, and states (and D.C.) jumped on the idea.

The decades since have proven that such tactics are ineffective as deterrents. And not only do these laws not work, but they actually cause harm: Suspending driver’s licenses for non-traffic offenses decreases public safety on the road while increasing recidivism for those affected. So at the very least, taxpayers are spending a lot of money on making themselves less safe.

The remaining 10 states (Alabama, Arkansas, Florida, Michigan, Mississippi, New Jersey, New York, Pennsylvania, Texas, and Virginia) still suspend over 175,000 licenses every year, so there’s ample room for improvement. Which states will take this common-sense step next?

Breaking open the “black box”: How risk assessments undermine judges’ perceptions of young people

It's complicated enough for judges to weigh the influence of youth in their decisions. A new paper argues that algorithmic risk assessments may further muddy the waters.

by Wendy Sawyer, August 22, 2018

Imagine that you’re a judge sentencing a 19-year-old woman who was roped into stealing a car with her friends one night. How does her age influence your decision? Do you grant her more leniency, understanding that her brain is not yet fully developed, and that peers have greater influence at her age? Or, given the strong link between youth and criminal behavior, do you err on the side of caution and sentence her to a longer sentence or closer supervision?

Now imagine that you’re given a risk assessment score for the young woman, and she is labelled “high risk.” You don’t know much about the scoring system except that it’s “evidence-based.” Does this new information change your decision?

For many judges, this dilemma is very real. Algorithmic risk assessments have been widely adopted by jurisdictions hoping to reduce discrimination in criminal justice decision-making, from pretrial release decisions to sentencing and parole. Many critics (including the Prison Policy Initiative) have voiced concerns about the use of these tools, which can actually worsen racial disparities and justify more incarceration. But in a new paper, law professors Megan T. Stevenson and Christopher Slobogin consider a different problem: how algorithms weigh some factors — in this case, youth — differently than judges do. They then discuss the ethical and legal implications of using risk scores produced by those algorithms to make decisions, especially when judges don’t fully understand them.

For their analysis, Stevenson and Slobogin reverse engineer the COMPAS Violent Recidivism Risk Score (VRRS),¹ one of the leading “black box”² risk assessment tools. They find that “roughly 60% of the risk score it produces is attributable to age.” Specifically, youth corresponds with higher average risk scores, which decline sharply from ages 18 to 30. “Eighteen year old defendants have risk scores that are, on average, twice as high as 40 year old defendants,” they find. The COMPAS VRRS is not unique in its heavy-handed treatment of age: The authors also review seven other publicly-available risk assessment algorithms, finding all of them give equal or greater weight to youth than to criminal history.³

To a certain extent, it makes sense that these violent recidivism risk scores rely heavily on age. Criminologists have long observed the relationship between age and criminal offending: young people commit crime at higher rates than older people, and violent crime peaks around age 21.

But for courts, the role of a defendant’s youth is not so simple: yes, youth is a factor that increases risk, but it also makes young people less culpable. Stevenson and Slobogin refer to this phenomenon as a “double-edged sword” and point out that there are other factors besides youth that are treated as both aggravating and mitigating, such as mental illness or disability, substance use disorders, and even socioeconomic disadvantage. While a judge might balance the effects of youth on risk versus culpability, algorithmic risk assessments treat youth as a one-dimensional factor, pointing only to risk.

In theory, judges can still consider whether a defendant’s youth makes them less culpable. But, Stevenson and Slobogin argue, even this separate consideration may be influenced by the risk score, which confers a stigmatizing label upon the defendant. For example, the judge may see a score characterizing a young defendant simply as “high risk” or “high risk of violence,” with no explanation of the factors that led to that conclusion.

This “high risk” label is both imprecise and fraught, implying inherent dangerousness. It can easily affect the judge’s perception of the defendant’s character and, in turn, impact the judge’s decision. Yet in all likelihood, the defendant’s age could be the main reason for the “high risk” label. Through this process, “judges might unknowingly and unintentionally use youth as a blame-aggravator,” where they would otherwise treat youth as a mitigating factor. “That result is illogical and unacceptable,” the authors rightly conclude.

This is not some hypothetical: Even when these algorithms are made publicly available, many judges admit they don’t really know what goes into the scores reported to them. Stevenson and Slobogin point to a recent survey of Virginia judges that found only 29% are “very familiar” with the risk assessment tool they use; 22% are “unfamiliar” or “slightly familiar” with it. (This is in a state where the risk scores come with explicit sentencing recommendations.) When judges rely on risk scores but are unaware of what and how factors affect those scores, chances are good that their decisions will be inconsistent with their own reasoning about how these factors should be considered.

The good news is that this “illogical and unacceptable” result is not inevitable, even as algorithmic risk assessment tools are being rolled out in courts across the country. Judges retain discretion in their use of risk scores in decision-making. With training and transparency — including substantive guidance on proprietary algorithms like COMPAS — judges can be equipped to thoughtfully weigh the mitigating and aggravating effects of youth and other “double-edged sword” factors.

Stevenson and Slobogin provide specific suggestions about how to improve transparency where risk assessments are used, and courts would be wise to demand these changes. Relying upon risk assessments without fully understanding them does nothing to help judges make better decisions. In fact, risk assessments can unwittingly lead courts to make the same discriminatory judgments that these tools are supposed to prevent.