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A Black Man Called The Cops Nazis–And Was Charged With A Hate Crime

A Pennsylvania hate crime statute is being used by law enforcement to punish angry arrestees.

Pennsylvania state troopers watch over a Pittsburgh protest
Chris Hondros/Getty Images

A Black Man Called The Cops Nazis–And Was Charged With A Hate Crime

A Pennsylvania hate crime statute is being used by law enforcement to punish angry arrestees.


Tempers can flare during an arrest, leading some people to say ill-advised and even cruel things.

But, where does protected speech end and criminal speech begin?

That line is being blurred by police in Pennsylvania who are using the state’s hate crime statute called ethnic intimidation—defined as “malicious intention toward the race, color, religion or national origin of another individual or group of individuals”—against people who direct vitriol at them.

On Sept. 23, 2016, Robbie Sanderson, a 52-year-old Black man from North Carolina, was arrested for retail theft in Crafton, a small town near Pittsburgh.

During the arrest, Sanderson called police “Nazis,” “skinheads” and “Gestapo,” according to an affidavit of probable cause filed by the Crafton Borough police.

For that, he was charged with a hate crime.

“This is completely ridiculous,” said Mary Catherine Roper, deputy legal director for the ACLU of Pennsylvania. “This is not what the hate crime statute was for. This is criminalizing pure speech and that violates the First Amendment.”

It all began that late September day when the police responded to a CVS Pharmacy for a possible active burglary, according to the police affidavit.

A passing motorist called police to say that she saw an older black man pulling on the rear doors of the store.

The store was open at the time, but when police arrived they found no one at the rear so they went inside.

Police then spoke with a CVS employee who identified Sanderson as the man pulling on the store’s doors; the employee told the police that the man was at the cashier station.

The police approached Sanderson by the cash registers, detained him, and searched his backpack, according to the affidavit. Inside the backpack, police allegedly found a little more than $100 worth of stolen merchandise, including beef jerky and Dr. Scholl’s shoe inserts.

After Sanderson called the police derogatory names, the affidavit states, he also told them “that’s why motherfuckers are killing y’all out here” and “all you cops just shoot people for no reason.”

And police said that Sanderson told one officer, Brian Tully, that he was going to find his wife and have sex with her.

Tully then charged Sanderson with summary retail theft for allegedly stealing the items from the CVS, as well as misdemeanor terroristic threats, institutional vandalism and resisting arrest for incidents that occurred during the arrest, according to court records.

Sanderson was also charged with “felony ethnic intimidation”—Pennsylvania’s hate crime statute—for making angry comments to the police.

Roper of the ACLU told The Appeal that ethnic intimidation is supposed to be used only when an underlying crime like making terroristic threats or simple assault is motivated by a bias or hatred of race, ethnicity, or religion. It is not supposed to be used merely because a defendant made racially driven remarks around the time of an incident if the underlying offense was not motivated by such bias.

“Where the underlying crime is shoplifting or the underlying crime is resisting arrest,” Roper explained, “none of that is motivated by ethnic bias.”

The grading of an offense—whether it is a felony or a misdemeanor—is based on the grading of the underlying offense.

So, by definition, ethnic intimidation increases the penalty for a crime by making the grading one step higher than the underlying alleged bias-motivated offense.

In Sanderson’s case, police claimed the terroristic threats charge was bias-motivated. That offense is graded as a first-degree misdemeanor, meaning the ethnic intimidation charge Sanderson faced was then upgraded to a third-degree felony.

Sanderson is not the only Pennsylvania resident to face ethnic intimidation charges for what appears to be simply making comments to the police that could be considered racist. The Appeal identified at least three other such cases in the state in 2016.

In January that year, Sannetta Amoroso, a 43-year-old Black woman from Pittsburgh, was charged with multiple counts of first-degree felony ethnic intimidation by McKees Rocks police Officer Brandy Harcha. According to police, Amoroso became angry while trying to report a crime and said “I’m going to kill all you white bitches” and “death to all you white bitches.”

Then in June, Pennsylvania State Police Trooper Robert Wareham charged Steven Ray Oller, 47, of Chambersburg, with misdemeanor ethnic intimidation for threatening officers and using a racial slur directed at a Latinx trooper during an arrest for suspected DUI.

And in August, Trooper James Welsh of the state police charged Seneca Anthony Payne, a 39-year-old Bucks County man, with misdemeanor ethnic intimidation. Payne allegedly called an officer a “Gandhi motherfucker” during a welfare check at Payne’s home.

Despite filing such charges, in 2016 these departments reported to the Pennsylvania State Police Uniform Crime Reporting System that no hate crimes occurred in their jurisdictions.

“What you have is police officers essentially punishing people for disrespect to police officers by adding on criminal charges,” Roper explained. “And that’s just inappropriate. The things they are saying are deeply offensive, but they are not criminal.”

Perhaps unsurprisingly, the ethnic intimidation charge was later dropped in all four cases, including Sanderson’s, according to court records.

Sanderson pleaded guilty to retail theft and resisting arrest and was sentenced to one year probation and ordered to pay $915 in fines and fees.

Only 12 of the 65 total cases involving ethnic intimidation in Pennsylvania in 2016 resulted in a conviction, according to The Appeal’s analysis.

Three cases were still awaiting disposition at the time of publication.

The Appeal Podcast Episode 6: The Unique Cruelty of Sentencing Children to Life Without Parole

With journalist Victoria Law.

The Appeal Podcast Episode 6: The Unique Cruelty of Sentencing Children to Life Without Parole

With journalist Victoria Law.


Despite recent Supreme Court rulings curtailing the practice, the United States remains the only country on earth that enforces life without parole sentences for crimes committed as minors. Our guest, Victoria Law, explains efforts by prosecutors in Louisiana to continue keeping dozens of men, most of them Black, in state prison for crimes committed in the 1960s and 1970s when they were juveniles—typifying a prosecutorial ethos of punishment for punishment’s sake.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter.

Transcript:

Adam Johnson: Welcome to The Appeal Podcast. I’m your host Adam Johnson. This is a podcast on criminal justice, abolition and everything in between. You can follow us on Twitter @TheAppealPod or Facebook at The Appeal Podcast. You can also subscribe on iTunes at The Appeal. According to the United Nations, the United States is the only country on earth that has life without parole for children. Though the Supreme Court ruled the practice unconstitutional in 2012 and again in 2016, there remain hundreds of people, disproportionately African American still locked up for crimes they committed when they were 14, 15, 16 and 17. Our guest today is Victoria Law, journalist and author of Resistance Behind Bars: The Struggles of Incarcerated Women. She’s going to talk about one of the more egregious cases of punishment for punishments sake. District Attorneys in Louisiana who are still seeking to keep dozens of men behind bars for crimes committed when they were minors in the 1960s and 1970s, despite no apparent public safety or moral utility.

[Begin Clip]

Victoria Law: In one parish in Louisiana, the District Attorney filed notices that he was going to seek life without parole for four out of five people who had been convicted as juveniles and sentenced to life without parole originally and he was seeking new life sentences for four of the five. The four are black; the one person he is not is white. So that tells you volumes.

[End Clip]

Adam: Thank you so much for coming on Victoria.

Victoria Law: Thanks for having me.

Adam: So you wrote a piece in The Appeal called “Louisiana’s Love Affair With Locking Up Kids For Life: Years after two landmark Supreme Court rulings, prosecutors in Louisiana are still overwhelmingly seeking life sentences for children.”

Victoria Law: Yeah.

Adam: So, um, can you talk to us about the law surrounding locking up children for life? What the Supreme Court rulings in 2012 and 2016 established and where certain states like Louisiana stand today? Can you sort of set the table for us?

Victoria Law: Yes. So in 2012, the Supreme Court of the United States ruled that sentencing juveniles, in this case meaning people under the age of 18 or people who committed crimes when they were under the age of 18, to life without parole was unconstitutional. There had been years of brain science which showed that children’s brains develop more slowly, they are less able to think of long-term consequences, they’re more impulsive, like impulse control doesn’t come into play until later.

Adam: Right.

Victoria Law: Um, and so basically somebody who does something when they are 17 has a very different thought process and a very different sense of impulse control or lack of long-term consequences than somebody who is 27 or 37 or 47. So therefore they should not be held to the same legal standard. So basically what this did was state that life without parole for juveniles was unconstitutional and required states to address this. And four states decided that they were not going to make this retroactive. Meaning that if you had been sentenced to life without parole as a juvenile prior to the Supreme Court decision, too bad so sad for you. And Louisiana was one of those four states. Fast-forward to 2016 and Henry Montgomery, who had been sentenced to life without parole for the 1963 shooting of a deputy when he was 17 years old brought a case before the courts and his case made its way up to the Supreme Court arguing that he should be allowed to be considered for resentencing because under Miller v. Alabama, his brain capacity had not fully formed yet, he was 17 years old and retroactivity should apply to him. And the Supreme Court actually ruled in his favor. So he had sued the State of Louisiana, which is the state we’re now talking about, and the Supreme Court ruled that Miller was indeed retroactive and they had to have resentencing hearings for children or people who had been convicted as children even before the 2012 hearing. So then lawmakers in Louisiana initially introduced a bill that would prohibit life without parole for all juveniles, including those who had been sentenced to first degree or second-degree murder.

Adam: To be in compliance with Miller.

Victoria Law:  To be compliant with Miller and Montgomery. And what happened was the state’s district attorney association, so the Association of State Prosecutors lobbied against this bill and pushed for it to only apply to people who had been convicted of second-degree murder. And what ended up happening was the law said that life without parole would be prohibited for all juveniles moving forward but if a child had been indicted for second-degree murder or first-degree murder before August 1, 2017. And keep in mind that indicted simply means that a grand jury said there’s enough evidence to move ahead with a trial, you have not been convicted, you have only had charges brought against you. Um, prosecutors could still seek life without parole. So you don’t even have to have been convicted by August 1, 2017. You merely have to had charges brought against you. And in nearly one third of the 258 cases, prosecutors decided to seek life without parole. They filed legal notices that said ‘We are going to seek life without parole sentences for these 92 people.’ So it was a conscious decision. It wasn’t a default.

Adam: Yeah. You note in your piece how much prosecutors had a hand in shaping the legislation, um, is that common in these things and is it also true to say, as a follow-up to that, that there seems to be a kind of default punitive mentality, now maybe this is rather obvious, all prosecutors are like this to some extent, but is it just taken for granted in that profession that the goal is to just get as many years in jail as possible, even if it was something that happened 60 years ago or 50 years ago?

Victoria Law: Well, prosecutors have a tremendous amount of power and people who go into the prosecutor’s office are there to convict people. You know tenure as prosecutor depends on how many convictions you get, not how many people you’ve actually helped. So a prosecutor probably would not last very long if they said ‘Henry Montgomery as a 17 year old black kid in 1963 Louisiana might’ve benefited from these things instead of being sent to prison for life.’ Like you don’t get very far in your career, I think, if you are a warm and fuzzy prosecutor.

Adam: Right, right. Maybe my question was Pollyannish, but I guess is there any pumping of the brakes in these kinds of scenarios or is it just mindless like screw them all, throw them in jail and throw away the key?

Victoria Law: I think for the most part, yes, because prosecutor’s offices are intended to prosecute and charge and gain convictions and send people to prison or punish them in some way, um, whether it’s prison or indefinite probation or electronic monitoring or something, something. But it is to get the convictions. It is not to do some sort of restorative justice or transformative justice or change societal conditions so that these actions don’t happen anymore.

Adam: So to the extent to which the district attorneys of Louisiana decide post Montgomery to re-pursue cases and 92 out of the 258 they were making that determination based on ones they thought they could win. Not necessarily ones they thought were the most just.

Victoria Law: Yes. And then we’re also seeing that in many cases the ones that they are pursuing are disproportionately against African Americans who were convicted as juveniles.

Adam: Right. That was my next question. So let’s, let’s talk about the racial aspect of this.

Victoria Law: Yes. So African Americans make up three quarters of the cases in which state prosecutors are seeking new life without parole sentences. In one parish in Louisiana, the district attorney filed notices that he was going to seek life without parole for four out of five people who had been convicted as juveniles and sentenced to life without parole originally and he was seeking new life sentences for four of the five. The four people he is seeking life sentences against are black; the one person he is not is white. So that tells you volumes about this.

Adam: Yes, it does. Yeah. Because I know that African Americans make up, well let’s say roughly a third of the population, 32 percent of the population in Louisiana, but they make up, what percent did you say of?

Victoria Law: They make up 74 percent of people serving life without parole sentences in the Louisiana prison system. So it is a huge disproportion. And then have people who had been convicted as juveniles and sentenced to life without parole. They make up 75 percent of cases in which state prosecutors are seeking new life sentences.

Adam: Um, can you tell us where the United States lies in the broader thinking on this globally? Is putting children in jail for life something that other countries really do in the quote unquote “Western” world or, or, or is this, is this unique to us in terms of punitiveness? Because I think in the Miller case there was an element of that we were behind some kind of global standard in a way.

Victoria Law: In terms of say if we were to compare ourselves to say Europe, Europe does not routinely send children to prison for life, for anything. And as a matter of fact, they routinely do not send most people to prison for these outrageously long prison terms that the United States does. So the United States, uh, we have a huge number of people in prisons in the United States, especially in comparison to the other countries, particularly in the western hemisphere. And then we also have huge numbers of people serving tremendously long, if not life sentences, because a 75 to life sentence for a 30 year old essentially sentences that person to die in prison. A 250-year sentence for an anybody year old sentences that person to die in prison. So either tremendously long sentences like that or life sentences, especially when you compare them to sentences meted out for similar types of violence and harm in other western hemisphere countries.

Adam: Um, I know that in the Miller case Justice Elena Kagan specifically cited new developments in psychology and brain science.

Victoria Law: Yes.

Adam: Now obviously the people who just want to throw people in jail, specifically black people in jail and throw away the keys, don’t really care, but presumably there’s some sort of Justice Kennedy type character both here and in other cases that sort of can be swayed by this. To what extent do new developments in brain science inform this conversation? And is it something that actually you think sways a lot of people?

Victoria Law: I think that the developments in brain science inform a lot of this discussion because had it not been for these findings in neuroscience that have been shown again and again and again, we might not be having Miller v. Alabama and Montgomery v. Louisiana or these rulings, because there wouldn’t necessarily be scientific backings around this to say like, these children are not the quote unquote “worst of the worst.” It’s that children lack impulse control. Children lack the ability to think longer term. So if I do this, then this might happen. If I do this, I might end up in a cage for the next 250 years. There’s just not that sense of long-term planning and consequences as any listener who has ever been around a child or a teenager for any period of time can attest you know there just isn’t that long-term thinking.

Adam: Right. And so in the issue of the Supreme Court, and their conclusion had to kind of carve out that said there is a “rare juvenile offender” who “reflects irreparable corruption.” Which was kind of a way of saying that if there are sort of uniquely evil, “the worst of the worst,” I think is actually a term that was used. To what extent have prosecutors taken this, this wedge and used it to their advantage?

Victoria Law: I mean we’re still seeing that prosecutors are seeking life without parole sentences. I mean, again, just given the fact that in Louisiana alone, prosecutors are seeking for resentencing one third of cases that might allow people to get lesser sentences and possibly be able to go before a parole board and possibly be able to go home. Henry Montgomery, who filed the case that resulted in the 2016 retroactive Supreme Court decision is now 71 years old. So he has been behind bars since 1963 for shooting, which granted, it took somebody’s life. That person is not able, you know, that person is not going to ever come back. But for that one tragic, awful decision in 1963 when he was 17 years old, he is now 71 years old. He is in prison. He has remained in prison. Um, and he, you know, like will probably die in prison unless he is paroled. So if it were not for that, if it were not for prosecutorial discretion, they could’ve said ‘Hey, he could be sentenced to something else and be able to come home and, you know, spend his remaining time with whomever and his family is still left.’

Adam: Right. There was a perverse, for lack of a better word, irony to one of the reasons why he wasn’t given parole. And the board said because he had not participated in the prison programs.

Victoria Law: Yes.

Adam: Because at the time those were not open to people who had life without parole. So he was stuck in a catch-22.

Victoria Law: Yes. Yes. Earlier this year or late last year, Henry Montgomery was resentenced and actually was allowed to appear before the parole board. And again at the time he was 70 years old, so again from age 17 to age 70 and he was in prison and at the time the Louisiana State Penitentiary, like many prisons across the country, would not allow people serving life sentences to participate in prison programming because prison programs are few, they’re far between, there aren’t enough to go around for the thousands of people that are incarcerated. So the people with shorter sentences are prioritized because the thinking was that they’re going to get out and they are going to need some of these programs or some of these new skills or some of these new whatever the program is supposed to offer for when they go home. And if you were serving either a very, very long sentence or a life sentence, you were not allowed to participate because you might be taking a slot away from somebody who was going to go home. However, the parole board in its short sightedness or myopic vision of how the prison system works, decided that Henry Montgomery had obviously not changed from being the impulsive, reckless 17 year old he was in 1963 because he had not participated in prison programming and they did not acknowledge the fact that he was as somebody sentenced to life without parole, unable to access these programs, and so he was denied parole and he is now 71 years old and he remains in prison. Who knows whether or not he will be able to take the number of prison programs that would satisfy three parole board commissioners the next time he goes before the parole board. And this is something that I’ve heard again and again from people in other states, even before Miller, even before Montgomery, is that as people serving long sentences, they’re often ineligible or de-prioritized for prison programming. And then that’s held against them when they go before the parole board.

Adam: Right. So to what extent did the prosecutors lobby to keep him in jail? At his parole hearing correct?

Victoria Law: Yes. Yes. Um, and they also bring the family members of the person who was killed who are understandably upset and shaken that the person who took their loved one away might be able to go home. And I think that that is something that prosecutors play on, is that they freeze Henry Montgomery or whoever it was in that moment, like Henry Montgomery, even though he is 71 years old, will forever be the set, the 17 year old that is painted as, they didn’t have the term “superpredator” back in 1963, but something akin to a superpredator, who took away their loved one and not somebody who has grown out of that behavior and probably deeply regrets what he has done. Um, and you can never bring a person back, but you can show that you have changed and you are not that same person. But prosecutors whip families into this fear that the person sitting before them is going to do something similar or is going to harm their families even more. And so that it, you know, so they come before the parole board and they are afraid, they are shaking. They’re very emotional. And the parole board sees that as well. And this would probably not be the case if there had not been this driving force to push families into this state in which they think that this person is going to come after them and they and their families are in danger should this person be allowed to go spend what little time they have left on this planet outside of prison walls.

Adam: Moving forward. I know that there are a lot of reform efforts right now in prison broadly speaking and specifically around not just who we lock up, how we locked them up, the racist nature we locked them up, but the amount of years we locked them up is this sort of big thing now. Right? Which again, America excels mostly at that above all, what are the groups that you could sort of name drop that are working to address some of these excesses and try to get prosecutors and the public in general because of course they’re elected so you need the public to be on board, to rethink the way we talk about throwing people in cages and locking away the key, this kind of tough on crime ethos?

Victoria Law: Yes. So, I mean, so there are, you know, like in Louisiana, there’s a New Orleans based Louisiana Center for Children’s Rights, which has been working to eliminate juvenile life without parole and has also been tracking the outcomes of Louisiana’s law that is supposed to be following Miller and Montgomery because the law did not actually include a reporting requirement. So they’ve been doing the legwork, the tedious leg work of calling, uh, the offices of judicial district clerks and checking court dockets to find out like exactly how is this law being implemented and we might not know how this law was being implemented and how many black people who had been sentenced to life without parole as juveniles were facing life without parole sentences yet again, had it not been for their work. Um, we can take heart in the fact that there have been organizing campaigns against punitive prosecutors and for more reform minded prosecutors. Like in Chicago, there was the Bye Anita campaign, “bye” as in bye-bye um, Bye Anita campaign organized by mostly young black people who were outraged at the fact that she was not charging the police with the shooting of Laquan McDonald, but was ferociously going after black and brown youth and locking them up. And they went around and they weren’t endorsing, they were not endorsing another candidate, but they would go around to like say, like on the metro and, you know, like public areas and tell people, ‘Did you know there was a prosecutor race coming up? Did you know that this is Anita Alvarez’s record on prosecutions and the prosecutions of black and brown youth, black and brown people? Um, this is her record on prosecuting police officers who shoot people 41 times.’

Adam: Right.

Victoria Law: Um, and they would give people this information. Most people don’t realize that district attorneys are elected offices.

Adam: Yeah.

Victoria Law:  And let alone that they should go out and vote for any district attorney. And their efforts resulted in Anita Alvarez not being reelected as prosecutor. Um, and it resulted in Kim Foxx being elected who has shown herself to be more open, at least in terms of not prosecuting black women who are domestic violence survivors who defend themselves against their abusers and are facing assault, manslaughter or murder charges. So we can take a, a glimmer of hope in the organizing that happens around that. In Philadelphia, Larry Krasner, who is a civil rights attorney, was elected as district attorney and there was a huge amount of organizing particularly from communities and people who had been directly impacted by the prison system and by being prosecuted to say like, ‘This is the person that we want to become district attorney.’ And they went and they canvas different neighborhoods, particularly neighborhoods that have been most impacted and said, ‘Hey, do you know that the prosecutor is an elected office?’ Here is, again, they didn’t quite say ‘Go vote for Larry Krasner,’ but they were like, ‘Here’s a report card that shows where the district attorney candidates stand on criminal justice. Do you have a loved one who has been harassed by police, arrested, locked up, facing charges, you know, impacted by the criminal legal system in some way? Here is, you know, where these different district attorney stand.’

Adam: Right.

Victoria Law: ‘By the way, the election is blah blah blah date.’ And then they did follow up phone calls to remind people that this election was happening and so there was a message sent, you know, in Philadelphia and in Chicago that when people organized, when people know that district attorneys are elected offices, you know, the district attorney in New Orleans is an elected office that perhaps there are repercussions for seeking these overzealous punitive life without parole sentences or over criminalizing people.

Adam: Yeah. I think that’s changed in the last couple of years. I think people are now aware that protesting the police is super important and that will always be important.

Victoria Law: Yes.

Adam: But there is this other side to it and that’s district attorneys, which we talked about in the first episode with Josie Duffy Rice, I thought that was, the sheer sort of scope of their powers. Even things like shaping legislation and, and influencing parole boards. I mean, they from soup to nuts, they basically, they basically-

Victoria Law: And deciding who to charge and who not to charge.

Adam: Right. Which is everything, right?

Victoria Law: Yes.

Adam: I mean prosecutor’s discretion is everything because it is clear there’s a bit of circular feedback where it’s they prosecute the people they think they most likely can convict and therefore most cases they try to convict disproportionately poor and African Americans. So yeah, it’s the whole incentive schemes are perverse and I think people using the reigns of democracy to try to at least push back a little bit even if it’s one percent that’s still one percent less people in jail-

Victoria Law: Yes.

Adam: Or one percent less years on the prison sentence. So. Well, thank you so much for coming on Victoria. I really appreciate it. That was great.

Victoria Law: Thanks for having me.

Adam: That was Victoria Law, journalist and author of Resistance Behind Bars: The Struggles of Incarcerated Women. This has been The Appeal Podcast. You can follow us on Twitter @TheAppealPod or Facebook at The Appeal Podcast. You can also subscribe on iTunes at The Appeal. I’m your host Adam Johnson. The show is produced by Florence Barrau-Adams. Executive producer Sarah Leonard. Thanks for joining us, we’ll see you next week.

More in Explainers

The Danger of Automating Criminal Justice

Advocates in Philadelphia say a new tool to assist judges in sentencing could perpetuate bias.

Members of Mothers in Charge, an advocacy group, with State Rep. Joanna McClinton (in green), who opposed the proposed tool, at a recent hearing.
Credit: Reuben Jones

The Danger of Automating Criminal Justice

Advocates in Philadelphia say a new tool to assist judges in sentencing could perpetuate bias.


On a recent Wednesday afternoon, activists and attorneys packed a Philadelphia courtroom. But they weren’t there to support a defendant or oppose a ruling—they were questioning the use of a new tool designed to aid judges in sentencing.

Over the course of three hours, 25 people testified during the public comment period against a risk assessment instrument proposed by the state’s Commission on Sentencing. All 25 argued that the tool, based on an algorithm, would perpetuate racial bias in criminal sentencing. A similar hearing was held a week later in Pennsylvania’s capital, Harrisburg, and again there were no supporters among those who testified.

“The fundamental problem is that the tool doesn’t actually predict the individual’s behavior at all,” said Mark Houldin, policy director at the Defender Association of Philadelphia. “It predicts law enforcement behavior.” He continued: “As we know, [arrest rates] can depend on people’s race and the neighborhoods that are targeted by police activity.”

Predictive algorithms have been used in the court system for years, most prominently in decisions around pretrial detention. One such tool developed by the Laura and John Arnold Foundation is used in at least 29 jurisdictions, including three entire states. A smaller number of jurisdictions use risk assessment at sentencing—roughly 13 in all—and Pennsylvania is poised to follow suit.

The instrument being discussed in Pennsylvania is essentially a scorecard of factors including age, gender, number and type of both prior and current convictions, along with juvenile run-ins with the law, all of which are used to generate a score. Theoretically, the score rates a person’s likelihood of recidivism three years after being sentenced to probation, or following incarceration.

Supporters say such tools can counter human biases in sentencing by using data instead, reducing the impact of a racist judge, for instance, by giving him or her a more objective source of information. Ultimately, that could help reduce prison populations without threatening public safety, they say. But opponents believe discrimination is baked into the data, and perpetuated with the backing of “science.”

Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts, is a supporter. “Proponents of the tools argue—with good evidence—that when they are well-designed and well-implemented, the tools improve the accuracy of the diagnoses and responses [by judges], and improve consistency and transparency in decisions that are being made,” he said. But he acknowledges critics’ concerns. “There is such extensive evidence now of racial biases in other parts of the system that lawyers and advocates have rightly recognized that risk tools are an area where bias could be creeping in as well, especially as their use grows.”

The debate has come to a head in Pennsylvania. At a hearing on the risk assessment last year, only three people testified to a nearly empty room; this time, the room was full. Houldin attributes the surge of participation, in part, to the overall push for criminal justice reform in Philadelphia, sped by the election of District Attorney Larry Krasner last fall. “We’re at a point where people in Philadelphia aren’t just realizing that there is a problem but demanding that there is a solution,” he said. Many of the prominent organizers who propelled Krasner into office were also in the room to watch or to testify on the sentencing tool, as were two high-ranking members of his office.

Barring a legislative change, the implementation of a sentencing risk assessment tool is inevitable in Pennsylvania because of a 2010 law that mandated courts to do so. The law, which passed without much fanfare, was part of a package of reforms to reduce the state’s prison population. The intent of the statute was to aid judges in determining which offenders could be safely diverted to community supervision or residential treatment programs, said Mark Bergstrom, the state Commission on Sentencing’s executive director.

The commission, which is responsible for developing the proposed tool, was supposed to vote this week on whether or not to adopt the current version. But after the dramatic public hearing, the vote was postponed until December. This window will provide “an opportunity where we can ask those who have been critical to present proposals they have for an alternative approach,” Bergstrom said.  

He thinks the tool has been unfairly criticized by people who think it’s meant to dictate a sentence. “It’s not about more punishment or different punishment,” he said. “It’s about looking at what kind of needs the offender has.” A closer look at someone who scores very high, for example, could reveal a history of substance dependency which would be exacerbated by time in prison. In theory, the judge would use that information to recommend an alternative such as residential addiction treatment.

But critics argue that in practice it could lead to an opposite outcome. Just labeling a person high-risk inherently clouds a judge’s perception of that person and “will impact sentences greatly,” Houldin said.

Opponents are particularly concerned about the fact that the tool uses prior arrests in its definition of recidivism. Critics say that low-income and minority neighborhoods are often over-policed, so people who live there are more likely to have been arrested—even if never convicted. By the commission’s own analysis, the instrument predicts that Black offenders are a full 11 percentage points more likely to reoffend than are their white counterparts.

Bergstrom said that he appreciated the concern for using number of arrests but said, “I’m not sure how we can develop an instrument, which we’re required to do, if we can’t use criminal justice data or demographic data.”

This gets to the core of the argument against these tools. “We are not eliminating bias from the decision making, we’re embedding it even deeper,” said Hannah Jane Sassaman, a Soros Justice Fellow studying risk assessment. “It’s really important for jurisdictions to go through the extraordinary culture change,” to create a more equitable justice system, Sassaman says. She fears that predictive instruments will give jurisdictions political cover to seem like they’re making changes without truly reforming.

Rather than trying to identify high- and low- risk defendants, Sassaman suggests, every defendant’s history should be considered in court. “We need to be encouraging judges, and giving them more resources, to ask about a person’s humanity,” she said. Pre-sentencing investigations “should be whole and complete.” This would enable a judge to consider in every case whether prison time is an appropriate sanction.

Nationally, there is scant research on how effective predictive algorithms are at reducing prison and jail populations. While the implementation of such tools are often heralded as advances, they may do little in practice. One of the few published studies examined Kentucky’s use of a pretrial risk assessment tool. It found that there was only a small increase in pretrial release, and that over time “judges returned to their previous habits.” Within a couple of years, the study found, the pretrial release rates in Kentucky were actually lower than they were before the tool was implemented, and lower than the national average.

Douglas Marlowe, chief of science, law, and policy at the National Association of Drug Court Professionals, trains judges on how to use predictive tools. In his view, one of the biggest problems with the tools comes down to semantics. “Risk, need, responsivity. These are the least understood terms in the criminal justice system. You won’t get five people to agree on the definition,” he said. When a judge sees that a person is “high-risk” or “high-need,” his or her reaction could be to give the person a longer sentence. But, Marlowe explains, depending on the individual circumstance, this could be the polar opposite of what the score indicates. “High-risk could mean that this person really needs residential treatment, and not prison at all,” he said. He suggested that practitioners “strike the word ‘risk’ from the criminal justice lexicon and replace it with ‘prognosis.’”

Marlowe sees the use of algorithms in the criminal justice system as inevitable, which he considers a positive development. But, he cautions, judges need to be rigorously trained and their conduct must be scrutinized. “You don’t just throw a tool at a problem and then move on,” he said. Using an analogy from the medical field, he added: “A scalpel in the hands of a layman is a knife.”

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