Pennsylvania Commission on Sentencing’s Risk Assessment Tool: What Happened

Ten years after the state legislature mandated that the Pennsylvania Commission on Sentencing create a risk assessment tool to be used at sentencing, the commission finally voted on and passed a proposal in early September.

The vote comes on the heels of more than three years of public hearings in which the commission and criminal law reform advocates debated the details of proposals while thousands of Pennsylvanians spoke out in opposition to the use of risk assessment tools at sentencing.

Let’s talk about the version of the commission’s risk assessment tool that ultimately passed and what is next.

How does the risk assessment tool that passed work?

Before an individual appears at sentencing, a web-based computer program calculates a risk score, according to the risk assessment tool created by the commission. If the individual scores “high” or “low” according to the tool, a notation is added to the sentencing guidelines form instructing the judge to seek “additional information.” The sentencing judge will not receive the person’s risk label, only a notation regarding more information.

Why is the risk assessment tool problematic?

As with previously proposed versions of the risk assessment tool put forth by the commission, the data points in the worksheet used to label an individual as low, medium, or high risk are steeped in racial biases baked into the system. What’s more, the high-risk label is accurate only about half the time — no better than a coin toss.

What’s next?

Unless the state legislature explicitly rejects the risk assessment tool, it will go into effect on July 1, 2020. Beginning in January, the commission will begin six months of training to help judges learn how to use the tool. Some legislators have floated the idea of not only rejecting the risk assessment tool, but overturning the original mandate. Read more about what legislators can do next in this piece from Senators Street and McClinton.

We will continue to monitor proposals before the commission and work to oppose any and all policies that would perpetuate mass incarceration and racial biases. You can sign up for email updates from the ACLU of Pennsylvania to get the latest information about the commission’s next steps and other important civil liberties issues in the commonwealth.

What’s the good news?

The commission members heard you.

The risk assessment tool could have been much worse. Thanks to more than a thousand ACLU of Pennsylvania members who spoke up to oppose the proposal and critical feedback from our partners, the commission made key changes at the 11th hour so that the version of the risk assessment tool that ultimately passed is far better than the earlier versions.

These changes included scrapping a plan to turn over those individuals deemed to be low and high risk to county probation officers — who are already overworked and under-staffed — to conduct a second even more problematic risk assessment tool and make a final recommendation to the sentencing judge on risk. Moreover, in the current version, a sentencing judge no longer sees the risk labels generated by the tool. Finally, the commission removed many of the extremely problematic factors used to calculate risk. This would have compounded the racial biases that already plague the proposal while slowing the entire sentencing process to a glacial pace that would have meant more people spending more time in jail awaiting sentencing.

Because of your voice, some of the worst pieces of the risk assessment tool were abandoned.

A Vote This Week Could Mean A Tool That Will Deepen — Not Relieve — Racial Disparities In Criminal Sentencing Is Coming To Pennsylvania

Pennsylvania Commission on Sentencing public hearing in December 2018 (credit: ACLU of Pennsylvania)

by Nyssa Taylor

It has been said that the definition of insanity is repeating the same action and expecting a different outcome. This week, the Pennsylvania Commission on Sentencing may be approaching their own brand of madness.

A decade ago, the Pennsylvania legislature passed a law mandating that the sentencing commission develop a risk assessment tool — a worksheet with the aim of helping judges determine whether an individual being sentenced to one crime would be likely to commit another crime in the future.

For ten years, the commission has time and again failed to fulfill this mandate. Just in the past fourteen months, the sentencing commission has brought forth plans for a risk assessment tool only to be met with opposition from policy experts, individuals impacted by mass incarceration, and many who have worked inside the system. Time and again, these proposals have failed.

With each new attempt to fulfill the mandate, the commission’s proposal becomes more Byzantine and more racially problematic.

With its latest plan, the commission has doubled down by offering the most confusing and complex proposal yet, a far cry from the decade-old mandate to simply create a worksheet.

The current plan on the table is still plagued by the racial biases that are baked into criminal justice data that a risk assessment tool would pull from.

The commission’s latest plan also keeps many of the problematic pieces of past proposals in place while creating a whole new level of unnecessary bureaucracy by implementing an additional, untested risk assessment tool and passing the buck to county probation offices when it comes to actually making the final assessment. Even those deemed “low-risk” by the sentencing judge would be passed to a probation officer for an additional assessment. Across the commonwealth probation offices are underfunded and overworked. Adding work to the already full plate of probation officers makes no sense.

Rep. Todd Stephens of Montgomery County, who is the vice chair of the commission, and some other members seem to think that the implementation of this risk assessment tool will somehow benefit individuals charged with crimes by leveling the playing field. This is fantasy.

The reality is, implementation of a risk assessment tool at sentencing will have a disproportionate impact on people of color. Pennsylvania counties rely on data points directly correlated to race, including zip code, associations with friends and family who have criminal records, education history, and employment status, among other factors. Even the question of whether someone receives public assistance or has “financial problems” scores as a risk factor.

Pennsylvania judges should have the authority to make individual, case-by-case assessments about future risk, not be limited by a one-size-fits-all risk assessment tool.

This farce has gone on long enough. The Pennsylvania legislature should repeal the mandate that the commission create a risk assessment tool. If the commission is to pass the latest proposal in a planned vote later this week, the legislature should register opposition before this policy is ever implemented.

It’s time for smart justice in Pennsylvania. The current proposal in front of the sentencing commission would move us further from that goal, instead of advancing us towards it. When it comes to criminal law, Pennsylvania is near the bottom when it comes to the racial disparities that plague the system. The proposal on the table would double down on these racial disparities and could deepen the mass incarceration crisis for another generation.

We can and must do better.

Take action to urge commission members to oppose the implementation of this risk assessment tool at sentencing:

Nyssa Taylor is the Criminal Justice Policy Counsel for the ACLU of Pennsylvania.