In response to mounting concerns about inequity in the criminal legal system, the Pennsylvania Commission on Sentencing (“Commission”) has proposed a Sentencing Risk Assessment Instrument (“Instrument”) to standardize sentencing in the Commonwealth of Pennsylvania. Although algorithmic and allegedly objective tools like the Instrument have a guise of mathematical impartiality, they can also reinforce dangerous societal biases and perpetuate – not minimize – the injustices of the criminal legal system. Despite the growing popularity of such tools in various areas of the criminal legal system, there is good reason to be concerned about tools like the proposed Instrument in Pennsylvania. Critics of the Instrument say that the Instrument serves to reinforce the racist shortcomings of the criminal justice system and also violates the Pennsylvania Constitution and the 14th Amendment to the United States Constitution. Despite these objectionable aspects of the Instrument, the Instrument has been shown to be no better than a coin flip at accurately predicting which defendants are at ‘high risk’ for recidivism. Due to the serious Constitutional and ethical concerns about the proposed Instrument, the Pennsylvania General Assembly should reject the Instrument as-is, and should furthermore reconsider the empowering mandate for the Commission more broadly. 

What is the Risk Assessment Instrument?

The Pennsylvania General Assembly created the Pennsylvania Commission on Sentencing in 1978 with the goal of “creating a consistent and rational statewide sentencing policy that would increase sentencing severity for serious crimes and promote fairer and more uniform sentencing practices.” In 2010, the Pennsylvania General Assembly amended the authorizing section to mandate the Commission to “… adopt a sentence risk assessment instrument for the sentencing court to use to help determine the appropriate sentence within the limits established by law.” (emphasis added). After the amendment, the Commission began developing the Sentencing Risk Assessment Instrument in accordance with the mandate. Since 2010, the Commission has published five proposals, held nineteen public hearings, and commissioned an external review conducted by Carnegie Mellon University, finally proposing the most recent version of the Instrument on September 5th, 2019

The Commission describes the Instrument as “an empirically based worksheet which uses factors that are relevant in predicting recidivism; it provides an actuarial assessment of static criminal justice and demographic factors used to estimate risk of re-offense.” Based on a number of factors – gender, age, type of current offense, number and type of prior convictions, other concurrent convictions, and any juvenile adjudications – the Instrument categorizes the person as being low risk, normal risk, or high risk for recidivism. When a person is categorized as either high or low risk, the Instruments recommends that the county court imposing the sentence seek “additional information.” Unless the Instrument is rejected by the Pennsylvania General Assembly, the Instrument – flaws and all – will become law on December 4th 2019, 90 days after the publication. The public reaction to the tool has been overwhelmingly negative, with many not-so-affectionately referring to the Instrument as the RAT (“risk assessment tool.”) There are two main grounds for the public criticism of the Instrument: The Instrument’s consideration of gender, and its ability to reinforce racist effects of the criminal legal system. As the second issue has been discussed at great length elsewhere, the focus in this post will be on the explicit Constitutional challenge to the Instrument. 

Constitutional Concerns: Consideration of Gender in the Instrument

The Instrument explicitly considers a person’s gender when calculating their risk score, and assigns points differently to men and women. Per the Recidivism Risk Scale provided in §305.7 of the proposed Instrument, men are assigned one risk point for being men; women, on the other hand, receive zero points as a result of their gender. Article I § 28 of the Pennsylvania Constitution prohibits discrimination in laws on the basis of sex (interpreted to refer to gender). This mimics the 14th Amendment to the United States Constitution’s guarantee of equal protection under the laws, which bars the government from discriminating on the basis of certain categories – including sex – without providing an ‘important governmental interest’. As local activists point out, the assigning points differentially based on gender, taken in conjunction with the above provisions, represents illicit gender discrimination. 

However, the inclusion of gender here presents a complicated issue which is unlike most sex and gender discrimination cases. In this case, the inclusion of gender as a factor, although unconstitutional, actually benefits women, and has largely no effect on men’s risk scores. Not using gender, on the other hand, arguably “negatively effects [sic]” women (again, with largely no effect on men’s scores). Researchers from Carnegie Mellon University conducted an external review of the Instrument prior to its formal proposal, and recommended removing the use of gender as a factor in the Instrument, as inclusion of gender had little impact on the tool overall. The justification offered for the removal included the following:

“Removing gender as a risk factor results in both females and males receiving zero points (Female=0; Male=0). Currently, the cut points for the low and high risk categories are set at one standard deviation above and below the mean. Removing gender shifts the cut points for typical risk one point. Removing gender has the greatest impact on females. Because of the shift in the cut points, fewer females are classified as low risk and more females are classified high risk. There is no impact on males due to the removal of one risk point and the shifting of the cut point by one point lower.” 

Put simply: Due to the way the low, normal, and high risk categories are calculated, the inclusion of the additional point for men has very little effect on the number of men likely to be categorized as high risk. However, inclusion of the additional point actually helps women because it makes women more likely to be categorized as high-risk and therefore eligible for additional screening and services. Although the Commission’s June 13th response to the external review reflects agreement with the recommendation to remove gender, the minutes from the June 13th meeting and the proposed Instrument itself indicate gender was retained. 

The minutes from the June 13th meeting likewise reflect that the Commission was aware that the inclusion of gender would present a Constitutional issue. At that meeting, one of the Pennsylvania Representatives on the Commission made a motion to keep gender as a factor in the Instrument. The motion carried with one objection. Professor Rachel E. López, Associate Professor of Law at Drexel University, objected to the motion on the grounds that “the Pennsylvania Constitution clearly prohibits any distinguishing on the basis of gender that does not include physical characteristics.” She also noted that the court precedent is very clear on that point and has been “repeatedly upheld by the courts.” Although the minutes do not reflect the precise legal grounds for Professor López’s objection, both the Pennsylvania and United States Constitutions support her statements as discussed above. However, given the fact that inclusion of gender helps women and does not harm men, it seems some members of the Commission think it unlikely that there would be a constitutional challenge mounted regarding the inclusion of gender. The Commission’s minutes from June 13th reflect statements by Senator Sharif Street (Democratic Senator representing the 3rd Senatorial District of Philadelphia) and Attorney Mark B. Sheppard (white collar defense attorney in Philadelphia) on this point. Outside observers have also pointed to the constitutional arguments against the inclusion of gender in the Instrument. Professor Sonja Starr, Henry M. Butzel Professor of Law at the University of Michigan, cautioned the Commission in a letter that the “use of gender as a risk factor plainly violates the Constitution,” and that the Equal Protection Clause specifically “forbids the government from treating people differently on the basis of sex even when there is a statistical basis for doing so.” The Commission seems determined to ignore these warnings and march forward with an unconstitutional Instrument. 

Ethical Concerns: Use of Race Proxies in the Instrument

In addition to the Instrument’s unconstitutional reliance on gender in its assessment of risk, the Instrument also relies heavily on information about a person’s interactions with the criminal justice system, inciting accusations that the Instrument will only serve to reinforce harmful racial stereotypes. The objection to these portions of the Instrument does not explicitly flow from a Constitutional basis, but from a pragmatic one. Activist groups, such as the ACLU of Pennsylvania, point out that due to over-policing of people and communities of color across Pennsylvania, “relying upon a tool that weights this criminal justice data so heavily will only perpetuate” the racism rife in the criminal legal system. Thus, these activists argue that the factors used in the Instrument are direct proxies for race, thereby allowing the Instrument to make race-based classifications. Critics have widely – and rightfully – panned the Instrument because it will “reinforce racial and gender biases, [and] could actually increase incarceration.” For example, although it may seem reasonable to include information about past convictions in one’s score, this inclusion “ignores the fact that racial biases, not necessarily behavior, often determine whether someone gets a criminal record.” As the Editorial Board of the Philadelphia Inquirer put it, “garbage in, garbage out.” These outcomes are particularly painful in light of the fact that the original mandate was handed down in response to an acknowledgement of over-incarceration in Pennsylvania. The racist implications of the proposed Instrument are discussed at great length elsewhere, and have formed the basis for substantial community opposition to the Instrument. 

Call to Action

The Risk Assessment Instrument proposed by the Pennsylvania Commission on Sentencing poses serious Constitutional concerns due to its explicit consideration of gender. Far from being unknown, these concerns were explicitly acknowledged – and subsequently ignored – by the Commission, which was banking on the difficulty of finding a plaintiff to challenge the tool as a safeguard for the impermissible Instrument. In addition to the Constitutional challenge, the Instrument is also likely to reinforce harmful racist effects and stereotypes and increase mass incarceration. The Commission on Sentencing has had nearly a decade to fulfil the 2010 mandate to come up with a risk assessment instrument. In light of the myriad of problems with the most recent Instrument, Pennsylvania Representatives and Senators have proposed both House and Senate Bills to repeal the 2010 mandate. Given how deeply flawed the proposed Instrument is, the time has come to repeal the mandate in order to ensure a more just sentencing regime in Pennsylvania. The citizens of Pennsylvania – a state already overburdened by the evils of mass incarceration – deserve nothing less.