By David S.
Prescott, LICSW, & Kieran McCartan, Ph.D.
Note: We are grateful to Tyffani Dent for her
contributions to the discussions that led to this post.
On August 1,
2014, in a speech
about risk assessment processes, then–United States Attorney General Eric Holder said of the available
measures:
Although these measures were crafted with the best of intentions, I
am concerned that they may inadvertently undermine our efforts to ensure
individualized and equal justice. By basing sentencing decisions on
static factors and immutable characteristics – like the defendant’s education
level, socioeconomic background, or neighborhood – they may exacerbate
unwarranted and unjust disparities that are already far too common in our
criminal justice system and in our society.
His points were
well-taken and yet not without considerable push back. The most common response
at the time was that the existing tools certainly outperformed the unstructured
judgment that in turn was wildly susceptible to bias. This point, too, was a
good one. Earlier this Autumn, Jennifer Skeem, associate dean of research and
associate professor of social welfare and public policy at the University of
California, Berkeley, stated in a major
address to the National Forum on Criminal Justice that extensive
review of post-conviction risk assessments of federal convicts found “no evidence
of predictive bias by race.”
Perhaps that’s
one of the issues we need to address first; many aspects of racism take place
beyond the awareness of those who work within the structures where racism is
found.
As outside
observers who have tried to watch developments in risk assessment closely,
there is no question that the right risk assessment methods can be useful, but
we question whether there isn’t evidence of inherent bias available right in
plain view. For example:
- It’s well-established
that people of color are more likely to be arrested, often as a result of
over-policing. They are incarcerated at a rate of more than five
times that of white people.
- It’s also established that
people of color are less likely to be referred to diversion
programs, and can be subject to bias even within that referral
process. All of these points can result in higher scores on risk assessment
instruments compared with whites, especially against a backdrop of true crime
rates remaining unknown.
- Likewise, racial disparities
can be found in the bail
system. This fact often goes missing
in broader discussions of racial disparities in the legal system.
- Obviously, not all risk
assessment methods are created equally; many rely on items that lend
themselves, more and less, to racial bias. Items related to family (for
example, past family incarceration) and community stability scored outside of
an understanding of their context may not accurately reflect a person’s
propensity to commit crime.
In some
circumstances, further questions arise as to whether many instruments aren’t
more effective at predicting who will be arrested than predicting who will
commit crimes.
People of color tend to experience intersectionality
more than white counterparts, which means that their
different socio-political and individuals labels put them at risk of being a victim
of crime and of, potentially, being someone who could commit a crime. In
addition, people of colour, sometimes because of factors crystalized through
intersectionality, are more likely to experience trauma as well as adverse
experiences; which matters in how we work with and respond to them. This means
that there is an opportunity for better primary,
secondary, tertiary
& quaternary prevention (see previous blog).
However, because of the socio-political aspects of race, vulnerability, trauma,
economics, and access to social care in America (and worryingly so in the UK as
well) issues related to intersectionality, race and crime never gets truly understood
or dealt with. A clear example of this
is a recent
report that indicates that UN peacekeepers from multiple
countries, of multiple races committed systematic sexual abuse while in Haiti.
Experiences of sexual abuse, whether through victimisation or perpetration,
does not have a race determinate; but race does play a significant role, though
intersectionality and socio-economic-political factors, in the way that we define,
prevent and respond to sexual abuse.
Of course, we
are not
the first, by far,
to address this and related topics. We do, however, believe that professionals
can become more effective by studying the myriad issues involved that this blog
post is only barely able to touch upon. Despite the excellent advances made by
our risk assessment instruments, very serious challenges remain.
