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House of Representatives
Session of 2019 - 2020 Regular Session


Posted: March 5, 2019 09:49 AM
From: Representative Joanna E. McClinton
To: All House members
Subject: Repealing the Mandate to Develop a Pre-Sentencing Risk Assessment Tool
Act 95 of 2010 (SB 1161) required the Pennsylvania Commission on Sentencing to develop a risk assessment tool to assist the court at sentencing. While the original intent of the bill was to help courts divert appropriate non-violent offenders to alternative sentencing programs rather than prison, the version of the legislation that passed created a mandate to develop what is known as a 2nd generation tool which relies only on static factors used to predict likelihood of recidivism. In other words, the tool does not evaluate dynamic needs factors, such as substance abuse, family/marital relationships, education/employment, financial status, and mental health - all of which provide important information necessary in guiding judges to appropriate alternative sentencing programs.

Since the passage of the mandate, the Commission has worked hard to create a tool that is statistically predictive of risk, while also not showing bias against any protected class. After reviewing the Commission’s work since passage of Act 95, many, including members of the Commission itself, have serious doubts that such an automated tool is possible.

In 2018, the Commission released an algorithm for public comment. There was broad criticism of the tool by public advocates and criminal justice experts. Generally, many had concerns that an algorithm designed to make predictions about future behavior based on static factors such as age, sex and criminal history could have a disparate impact based on race or gender.

Specifically, the current algorithm fails on two important points. First, by the Commission’s own conclusion, it is not statistically predictive in many cases. When determining whether someone is a “high risk” to commit a violent crime in the future, it is correct only 11% of the time. Additionally, it is only 52% accurate when it labels someone as a “high risk” to recommit any crime. That is basically the same as flipping a coin.

The algorithm may also have a constitutional problem due to its use of race and gender. While the Commission solicited a legal opinion in 2015 which advised that considering gender or race as a factor in the tool may not be constitutional, a decision was made to continue to account for gender. The current algorithm assigns an additional point to all men, and not women, thus assuming all men are “riskier” than women. Additionally, the algorithm likely has a disparate impact on race due to the utilization of arrest records amassed during a history of over policing in communities of color.

My legislation, which is a companion bill to Senator Street’s proposal, will repeal the Act 95 mandate for the Commission to develop this pre-sentencing risk assessment tool. Both Senator Street and I are members of the Pennsylvania Sentencing Commission, and know that this mandate is unattainable. I ask my colleagues to join me in supporting this important legislation.

Introduced as HB1799