What is Evidence-based Sentencing?
For several decades, parole and probation departments have been using research-backed assessments to determine the best supervision and treatment strategies for offenders to try and reduce the risk of recidivism. In recent years, state and county justice systems have started to apply these risk and needs assessment tools (RNA’s) to other parts of the criminal process.
Of particular concern is the use of automated tools to determine imprisonment terms. This relatively new practice of applying RNA information into the sentencing process is known as evidence-based sentencing (EBS).
What the Models Do
The different parameters used to determine risk vary by state, and most EBS tools use information that has been central to sentencing schemes for many years such as an offender’s criminal history. However, an increasing amount of states have been utilizing static factors such as gender, age, marital status, education level, employment history, and other demographic information to determine risk and inform sentencing. Especially alarming is the fact that the majority of these risk assessment tools do not take an offender’s particular case into account.
This practice has drawn sharp criticism from Attorney General Eric Holder who says “using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders.” In the annual letter to the US Sentencing Commission, the Attorney General’s Office states that “utilizing such tools for determining prison sentences to be served will have a disparate and adverse impact on offenders from poor communities already struggling with social ills.” Other concerns cite the probable unconstitutionality of using group-based characteristics in risk assessments.
Where the Models Are Used
It is difficult to precisely quantify how many states and counties currently implement these instruments, although at least 20 states have implemented some form of EBS. Some of the states or states with counties that have implemented some sort of EBS (any type of sentencing: parole, imprisonment, etc) are: Pennsylvania, Tennessee, Vermont, Kentucky, Virginia, Arizona, Colorado, California, Idaho, Indiana, Missouri, Nebraska, Ohio, Oregon, Texas, and Wisconsin.
The Role of Race, Education, and Friendship
Overwhelmingly states do not include race in the risk assessments since there seems to be a general consensus that doing so would be unconstitutional. However, even though these tools do not take race into consideration directly, many of the variables used such as economic status, education level, and employment correlate with race. African-Americans and Hispanics are already disproportionately incarcerated and determining sentences based on these variables might cause further racial disparities.
The very socioeconomic characteristics such as income and education level used in risk assessments are the characteristics that are already strong predictors of whether someone will go to prison. For example, high school dropouts are 47 times more likely to be incarcerated than people in their similar age group who received a four-year college degree. It is reasonable to suspect that courts that include education level as a risk predictor will further exacerbate these disparities.
Some states, such as Texas, take into account peer relations and considers associating with other offenders as a “salient problem”. Considering that Texas is in 4th place in the rate of people under some sort of correctional control (parole, probation, etc) and that the rate is 1 in 11 for black males in the United States it is likely that this metric would disproportionately affect African-Americans.
Sonja Starr’s paper
Even so, in some cases, socioeconomic and demographic variables receive significant weight. In her forthcoming paper in the Stanford Law Review, Sonja Starr provides a telling example of how these factors are used in presentence reports. From her paper:
For instance, in Missouri, pre-sentence reports include a score for each defendant on a scale from -8 to 7, where “4-7 is rated ‘good,’ 2-3 is ‘above average,’ 0-1 is ‘average’, -1 to -2 is ‘below average,’ and -3 to -8 is ‘poor.’ Unlike most instruments in use, Missouri’s does not include gender. However, an unemployed high school dropout will score three points worse than an employed high school graduate—potentially making the difference between “good” and “average,” or between “average” and “poor.” Likewise, a defendant under age 22 will score three points worse than a defendant over 45. By comparison, having previously served time in prison is worth one point; having four or more prior misdemeanor convictions that resulted in jail time adds one point (three or fewer adds none); having previously had parole or probation revoked is worth one point; and a prison escape is worth one point. Meanwhile, current crime type and severity receive no weight.
Starr argues that such simple point systems may “linearize” a variable’s effect. In the underlying regression models used to calculate risk, some of the variable’s effects do not translate linearly into changes in probability of recidivism, but they are treated as such by the model.
Another criticism Starr makes is that they often make predictions on an individual based on averages of a group. Starr says these predictions can predict with reasonable precision the average recidivism rate for all offenders who share the same characteristics as the defendant, but that does not make it necessarily useful for individual predictions.
The Future of EBS Tools
The Model Penal Code is currently in the process of being revised and is set to include these risk assessment tools in the sentencing process. According to Starr, this is a serious development because it reflects the increased support of these practices and because of the Model Penal Code’s great influence in guiding penal codes in other states. Attorney General Eric Holder has already spoken against the practice, but it will be interesting to see whether his successor will continue this campaign.
Even if EBS can accurately measure risk of recidivism (which is uncertain according to Starr), does that mean that a greater prison sentence will result in less future offenses after the offender is released? EBS does not seek to answer this question. Further, if knowing there is a harsh penalty for a particular crime is a deterrent to commit said crime, wouldn’t adding more uncertainty to sentencing (EBS tools are not always transparent and sometimes proprietary) effectively remove this deterrent?
Even though many questions remain unanswered and while several people have been critical of the practice, it seems like there is great support for the use of these instruments. They are especially easy to support when they are overwhelmingly regarded as progressive and scientific, something Starr refutes. While there is certainly a place for data analytics and actuarial methods in the criminal justice system, it is important that such research be applied with the appropriate caution. Or perhaps not at all. Even if the tools had full statistical support, the risk of further exacerbating an already disparate criminal justice system should be enough to halt this practice.
Both Starr and Holder believe there is a strong case to be made that the risk prediction instruments now in use are unconstitutional. But EBS has strong advocates, so it’s a difficult subject. Ultimately, evidence-based sentencing is used to determine a person’s sentencing not based on what the person has done, but who that person is.
It deals with the question of whether current anti-discrimination law is equipped to handle the kind of unintentional discrimination and digital redlining we see emerging in some “big data” models (and that we suspect are hidden in a bunch more). See for example this post for more on this concept.
The short answer is no, our laws are not equipped.
Here’s the abstract:
This article addresses the potential for disparate impact in the data mining processes that are taking over modern-day business. Scholars and policymakers had, until recently, focused almost exclusively on data mining’s capacity to hide intentional discrimination, hoping to convince regulators to develop the tools to unmask such discrimination. Recently there has been a noted shift in the policy discussions, where some have begun to recognize that unintentional discrimination is a hidden danger that might be even more worrisome. So far, the recognition of the possibility of unintentional discrimination lacks technical and theoretical foundation, making policy recommendations difficult, where they are not simply misdirected. This article provides the necessary foundation about how data mining can give rise to discrimination and how data mining interacts with anti-discrimination law.
The article carefully steps through the technical process of data mining and points to different places within the process where a disproportionately adverse impact on protected classes may result from innocent choices on the part of the data miner. From there, the article analyzes these disproportionate impacts under Title VII. The Article concludes both that Title VII is largely ill equipped to address the discrimination that results from data mining. Worse, due to problems in the internal logic of data mining as well as political and constitutional constraints, there appears to be no easy way to reform Title VII to fix these inadequacies. The article focuses on Title VII because it is the most well developed anti-discrimination doctrine, but the conclusions apply more broadly because they are based on the general approach to anti-discrimination within American law.
I really appreciate this paper, because it’s an area I know almost nothing about: discrimination law and what are the standards for evidence of discrimination.
Sadly, what this paper explains to me is how very far we are away from anything resembling what we need to actually address the problems. For example, even in this paper, where the writers are well aware that training on historical data can unintentionally codify discriminatory treatment, they still seem to assume that the people who build and deploy models will “notice” this treatment. From my experience working in advertising, that’s not actually what happens. We don’t measure the effects of our models on our users. We only see whether we have gained an edge in terms of profit, which is very different.
Essentially, as modelers, we don’t humanize the people on the other side of the transaction, which prevents us from worrying about discrimination or even being aware of it as an issue. It’s so far from “intentional” that it’s almost a ridiculous accusation to make. Even so, it may well be a real problem and I don’t know how we as a society can deal with it unless we update our laws.
Specifically, he looked at the 2013 cab rides in New York City, which was provided under a FOIL request, and he stalked celebrities Bradley Cooper and Jessica Alba (and discovered that neither of them tipped the cabby). He also stalked a man who went to a slew of NYC titty bars: found out where the guy lived and even got a picture of him.
Previously, some other civic hackers had identified the cabbies themselves, because the original dataset had scrambled the medallions, but not very well.
The point he was trying to make was that we should not assume that “anonymized” datasets actually protect privacy. Instead we should learn how to use more thoughtful approaches to anonymizing stuff, and he proposes a method called “differential privacy,” which he explains here. It involves adding noise to the data, in a certain way, so that at the end any given person doesn’t risk too much of their own privacy by being included in the dataset versus being not included in the dataset.
Bottomline, it’s actually pretty involved mathematically, and although I’m a nerd and it doesn’t intimidate me, it does give me pause. Here are a few concerns:
- It means that most people, for example the person in charge of fulfilling FOIL requests, will not actually understand the algorithm.
- That means that, if there’s a requirement that such a procedure is used, that person will have to use and trust a third party to implement it. This leads to all sorts of problems in itself.
- Just to name one, depending on what kind of data it is, you have to implement differential privacy differently. There’s no doubt that a complicated mapping of datatype to methodology will be screwed up when the person doing it doesn’t understand the nuances.
- Here’s another: the third party may not be trustworthy and may have created a backdoor.
- Or they just might get it wrong, or do something lazy that doesn’t actually work, and they can get away with it because, again, the user is not an expert and cannot accurately evaluate their work.
Altogether I’m imagining that this is at best an expensive solution for very important datasets, and won’t be used for your everyday FOIL requests like taxicab rides unless the culture around privacy changes dramatically.
Today I’m super excited to go to the opening launch party of danah boyd’s Data and Society. Data and Society has a bunch of cool initiatives but I’m particularly interested in their Council for Big Data, Ethics, and Society. They were the people that helped make the Podesta Report on Big Data as good as it was. There will be a mini-conference this afternoon I’m looking forward to very much. Brilliant folks doing great work and talking to each other across disciplinary lines, can’t get enough of that stuff.
This coming Saturday I’ll be moderating a panel called Spotlight on Data-Driven Journalism: The job of a data journalist and the impact of computational reporting in the newsroom at the New York Press Club Conference on Journalism. The panelists are going to be great:
- John Keefe @jkeefe, Sr. editor, data news & J-technology, WNYC
- Maryanne Murray @lightnosugar, Global head of graphics, Reuters
- Zach Seward @zseward, Quartz
- Chris Walker @cpwalker07, Dir., data visualization, Mic News
The full program is available here.
In mid-December I’m on a panel myself at the Fairness, Accountability, and Transparency in Machine Learning Conference in Montreal. This conference seems to directly take up the call of the Podesta Report I mentioned above, and seeks to provide further research into the dangers of “encoding discrimination in automated decisions”. Amazing! So glad this is happening and that I get to be part of it. Here are some questions that will be taken up at this one-day conference (more information here):
- How can we achieve high classification accuracy while eliminating discriminatory biases? What are meaningful formal fairness properties?
- How can we design expressive yet easily interpretable classifiers?
- Can we ensure that a classifier remains accurate even if the statistical signal it relies on is exposed to public scrutiny?
- Are there practical methods to test existing classifiers for compliance with a policy?
If you think Ello is the newest safest social media platform, you might want to think again.
Or at the very least, go ahead and read this piece by my data journalist buddy Meredith Broussard, entitled ‘Ello, social media newcomer! Goodbye, data security fears?. Meredith has read the fine print in Ello’s security policy, and it’s not great news.
I’ve been writing my book, and I’m on chapter 4 right now, which is tentatively entitled Feedback Loops In Education. I’m studying the enormous changes in primary and secondary education that have occurred since the “data-driven” educational reform movement started with No Child Left Behind in 2001.
Here’s the issue I’m having writing this chapter. Things have really changed in the last 13 years, it’s really incredible how much money and politics – and not education – are involved. In fact I’m finding it difficult to write the chapter without sounding like a wingnut conspiracy theorist. Because that’s how freaking nuts things are right now.
On the one hand you have the people who believe in the promise of educational data. They are often pro-charter schools, anti-tenure, anti-union, pro-testing, and are possibly personally benefitting from collecting data about children and then sold to commercial interests. Privacy laws are things to bypass for these people, and the way they think about it is that they are going to improve education with all this amazing data they’re collecting. Because, you know, it’s big data, so it has to be awesome. They see No Child Left Behind and Race To The Top as business opportunities.
On the other hand you have people who do not believe in the promise of educational data. They believe in public education, and are maybe even teachers themselves. They see no proven benefits of testing, or data collection and privacy issues for students, and they often worry about job security, and public shaming and finger-pointing, and the long term consequences on children and teachers of this circus of profit-seeking “educational” reformers. Not to mention that none of this recent stuff is addressing the very real problems we have.
As it currently stands, I’m pretty much part of the second group. There just aren’t enough data skeptics in the first group to warrant my respect, and there’s way too much money and secrecy around testing and “value-added models.” And the politics of the anti-tenure case are ugly and I say that even though I don’t think teacher union leaders are doing themselves many favors.
But here’s the thing, it’s not like there could never be well-considered educational experiments that use data and have strict privacy measures in place, the results of which are not saved to individual records but are lessons learned for educators, and, it goes without saying, are strictly non-commercial. There is a place for testing, but not as a punitive measure but rather as a way of finding where there are problems and devoting resources to it. The current landscape, however, is so split and so acrimonious, it’s kind of impossible to imagine something reasonable happening.
It’s too bad, this stuff is important.
My friend Jan Zilinsky recently sent me this blogpost from the NeuroCritic which investigates the repercussions of having biomarkers held against individuals.
In this case, the biomarker was in the brain and indicated a propensity for taking financial risks. Or maybe it didn’t really – the case wasn’t closed – but that was the idea, and the people behind the research mentioned three times in 8 pages that policy makers might want to use already available brain scans to figure out which populations or individuals would be at risk. Here’s an excerpt from their paper:
Our finding suggests the existence of a simple biomarker for risk attitude, at least in the midlife [sic] population we examined in the northeastern United States. … If generalized to other groups, this finding will also imply that individual risk attitudes could, at least to some extent, be measured in many existing medical brain scans, potentially offering a tool for policy makers seeking to characterize the risk attitudes of populations.
The way the researchers did their tests was, as usual, to have them play artificial games of chance and see how different people strategized, and how their brains were different.
Studies like this are common and I don’t see a reason they won’t become even more common. The question is how we’re going to use them. Here’s a nasty way I could imagine they get used: when you apply for a job, you fill in a questionnaire that puts you into a category, and then people can see what biomarkers are typical for that category, and what the related health risks look like, and then they can decide whether to hire you. Not getting hired doesn’t say anything about your behaviors, just what happens with “people like you”.
I’m largely sidestepping the issue of accuracy. It’s quite likely that, at an individual level, many such predictions will be inaccurate but could still be used by commercial interests – and even be profitable – even so.
In the best case scenario, we would use such knowledge strictly to help people stay healthy. In the worst case, we have a system whereby people are judged by their biomarkers and not their behavior. If there were ever a case for regulation, I think this is it.