New diagnostic computer programs designed to predict whether an offender will re-offend are being credited with helping reduce the number of prisoners in correctional facilities across the nation, but experts caution that while useful, the software tools are not perfect and should not be considered a panacea to long-standing issues of prison overcrowding.

In an unintentional and perhaps ironic demonstration of the new diagnostic programs, the population of the federal prison system – which does not use the software – continues to grow, while state prison populations have averaged a slight decline in recent years.

At the core of the programs are surveys that are administered to offenders, who are assigned risk points based on their answers to questions which range from only a dozen or so on some surveys to more than 100 on others. The risk assessment is then provided to parole boards to help determine whether the prisoner should be released or remain incarcerated, based on his or her likelihood to re-offend. In several states, risk assessments are also provided to judges to use in calculating offenders’ sentences.

At least 15 states have instituted policies requiring their corrections systems to use computerized risk assessments, according to the Public Safety Performance Project of the Pew Charitable Trusts. In some cases, these assessments evaluate up to 100 factors to develop an analysis, considering such conditions as whether a prisoner accepts responsibility for committing a crime and whether he or she feels remorse. Other risk indicators include factors such as the prisoners’ current age, age at the time of first arrest and level of education.

One of the computer programs, called Compas, is generally used in tandem with more traditional parole hearings and interviews to determine a prisoner’s potential for re-offending. Louisiana, Kentucky, Hawaii and Ohio are among the states that have adopted computerized risk assessments to make decisions about levels of supervision for individual parolees, while West Virginia now requires that all felons receive such assessments, which are provided to state court judges prior to sentencing.

Even Texas, with its reputation as a tough law-and-order state, has begun to increase the number of prisoners who are paroled, releasing an average 35.58% of parole applicants in 2014 compared to 28% in 2005. As a result, the state has lowered its prisoner population and cut incarceration costs.

“The problem with a judge or a parole board is they can’t pull together all the information they need to make good decisions,” said Edward Latessa, a professor at the Center for Criminal Justice Research at the University of Cincinnati, and developer of an open-source assessment system called ORAS, used in Ohio and other states. “Most parole boards look at one or two things,” he stated. “Good risk assessment tools look at 50 things.”

The practice of using computerized risk assessments for re-offending is getting some of the credit for a decrease in recidivism among parolees, which dropped from 15% in 2006 to 12% in 2011 – the fifth straight year of decline, according to the U.S. Department of Justice.

But other experts cautioned that the assessment programs are not perfect; they depend, for example, on offenders answering the questions truthfully because there is no independent verification of the offender’s responses.

And while the Justice Department is providing funds to states to develop and use the new diagnostic tools, the federal Bureau of Prisons has resisted adopting them. Then-U.S. Attorney General Eric Holder noted that while risk assessments have some value in determining whether a prisoner should be paroled, caution must be exercised if the assessment is used to determine an offender’s sentence.

“The risk-assessment instrument may be used as an aid in evaluating the relative risk that an offender will re-offend and be a threat to public safety,” Holder remarked in an August 2014 speech to the National Association of Criminal Defense Lawyers, but added, “Equal justice can only mean individualized justice, with charges, convictions and sentences befitting the conduct of each defendant and the particular crime he or she commits.”

Holder said the idea of sentencing defendants based on risk factors may help reduce the prison population, but in certain circumstances it may result in imposing drastically different punishments for the same offense.

“Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant’s history of criminal conduct,” he said. “They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.”

Another cautionary note was sounded by Bernard Harcourt, a University of Chicago professor of law and political science, who pointed out that survey questions concerning the number of previous crimes committed by an offender often strike a tone of racial bias due to the disproportionate number of blacks and Hispanics already incarcerated.

“There’s a real connection between race and prior criminal history, and a real link between prior criminal history and prediction,” Harcourt observed. “The two combine in a toxic and combustive way.”

Concerns have also been voiced about survey questions that ask about income and level of education. A 2013 study conducted by University of Michigan law professor Sonja B. Starr found that at least one court system in 20 states had begun using questionnaires at some stage of sentencing. She said the surveys could punish people for being poor and uneducated.

“They are about the defendant’s family, the defendant’s demographics, about socio-economic factors the defendant presumably would change if he could: Employment, stability, poverty,” Starr noted. “It’s basically an explicit embrace of the state saying we should sentence people differently based on poverty.”

Family members of crime victims are among those who are critical of releasing offenders based on predictions as to whether they will re-offend.

“The nature of the crime was impulsive, something spur-of-the-moment, and it makes you question what someone is capable of doing,” said Rob Pitkin, the father of a 10-year-old boy who was killed by his 13-year-old neighbor, Michael T. Murphy, whose application for parole was denied 11 times over the more than 25 years he served in prison. Pitkin and other family members were shocked when Murphy was released in 2012 at the age of 41 after an assessment determined he had a low risk of committing new crimes.

The former head of the National Council on Crime and Delinquency, Christopher Baird, said statistical tools might be more helpful in developing supervision guidelines for released prisoners rather than as criteria for parole releases.

“It’s very important to realize what their limitations are,” Baird said of the risk assessment programs. “That’s lost when you start introducing the word ‘prediction’ and start applying that to individual cases.”

Still, risk assessments have drawn the praise of officials across the nation who point to them as a way of reducing prison populations and cutting incarceration costs. In North Carolina, for example, the state reported that between 2011 and 2014, the prison population decreased by more than 3,000 in part through the use of risk assessments, saving the state nearly $84 million. In Texas, risk assessment surveys are credited by state officials with contributing to a more than 9% decline in the prison population between 2007 and 2012. And officials in Michigan said the statewide adoption of computerized assessments in 2008 helped to reduce the state’s prison population by more than 15% from record levels the year before, and helped lower the three-year recidivism rate by 10% compared to rates in 2005.

Such successes have not escaped the notice of federal lawmakers, who believe it’s time to require the Bureau of Prisons to adopt modern risk assessment protocols.

“We know that our prisons are overcrowded, and pretty much everyone agrees that recidivism, the percentage in which people repeat crimes, is way too high,” noted U.S. Senator John Cornyn, a Texas Republican. Cornyn cited a 2014 Department of Justice study that found a national average recidivism rate of about 68% within three years, based on prisoners released in 20 states.

In the U.S. House, the Public Safety Enhancement Act of 2013, which failed to pass, would have required federal prison officials to use risk assessment tools with the goal of reducing recidivism, lowering the crime rate and reducing the amount of money spent on the Bureau of Prisons.

In the Senate, Cornyn, along with U.S. Senator Sheldon Whitehouse, reintroduced legislation in February 2015 that would require the use of risk assessment tools in the federal prison system.

“We can’t simply incarcerate our way to public safety,” said Senator Whitehouse. “We have to be smart.”

The bill, titled the Corrections Act (S.467), was referred to a committee where it has remained pending for the past year, and is unlikely to pass.

Sources: www.correctionalnews.com, www.wsj.com, www.nydailynews.com, www.vindy.com, www.govtrack.us

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