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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.”

ICE Limits Access To Lawyers For NYC Immigrants In Detention, Citing Protests

Advocates decry court's shift to using teleconferencing for hearings.

Activists moved their signs across the street from 201 Varick on Tuesday.
Emma Whitford

ICE Limits Access To Lawyers For NYC Immigrants In Detention, Citing Protests

Advocates decry court's shift to using teleconferencing for hearings.

On Sunday, President Trump called for abandoning due process for immigrants, tweeting, “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.” In New York City, public defenders say ICE is showing a similar disregard, preventing detained immigrants from meeting with lawyers—and blaming it on protests nearby.

Members of the Metropolitan Anarchist Coordinating Council (MACC) launched an occupation of the immigration court at 201 Varick St. last week, inspired by similar ICE facility occupations cropping up nationally. Dozens of activists set up tarps and folding chairs in front of the building’s loading docks to prevent Department of Homeland Security vans from entering or exiting the building with detainees.

On Monday, ICE announced that all hearings at 201 Varick St. were canceled for the day. “This decision was made in order to ensure the safety of ICE employees, the court, the public and the detainees,” ICE spokesperson Rachael Yong Yow told The Appeal.

Occupiers agreed to move across the street and clear the loading dock areas Monday night, however, after public defenders and immigrant groups, including New Sanctuary NYC and Make the Road New York, stressed the negative consequences of disrupting bond hearings and other hearings aimed at client relief. “We wanted to work with immigrant communities,” Marisa Holmes, a spokesperson for MACC, said Tuesday. “We think being on the other side of the street is allowing hearings to continue, which is important.”

Yet ICE continued to refuse to transport detainees to the courthouse, citing safety concerns. The Executive Office for Immigration Review, which runs the court, confirmed Tuesday that rather than in-person hearings, it would use teleconferencing for all deportation and bond hearings, in which a defendant appears on a screen in the courtroom. Amanda St. Jean, a spokeswoman for the immigration review office confirmed the plan to use teleconferencing until it hears otherwise from ICE. It remained in place Wednesday, even though the occupation had dispersed entirely. “I think this claim that they are concerned about safety sounds like an excuse to punish the occupiers by punishing our clients,” said Scott Hechinger, senior staff attorney and director of policy for Brooklyn Defender Services.

Protesters outside 201 Varick Street on Monday
Credit: Emma Whitford

The shift to teleconferencing upended client intake this week for the New York Immigrant Family Unity Project, a city-funded initiative that has offered free legal representation to detained immigrants facing deportation since 2013. Their services close a legal loophole, since the U.S. Constitution does not guarantee legal representation in immigration court and most of the city’s detained immigrants went unrepresented in court before the project began. The project’s attorneys meet with detained clients scheduled for intake at 201 Varick three times a week.

For project attorneys, intake is a chance to familiarize themselves with complex cases and begin exploring potential relief options, such as filing a green card application or a motion to cancel a removal. ICE recently set up a small area with interview rooms on the building’s 11th floor, where attorneys spend 20 to 40 minutes screening each new client. It is unclear if and how clients will be able to access attorneys now.

During hearings, the emotional advantage of in-person appearances is significant, according to the family unity project. Clients, many of whom have been detained for months, get to see family members in the courtroom. Over video, said Andrea Saenz, a supervising attorney for Brooklyn Defender Services who directs its family unity project contingent, “You can’t hand your client a tissue if they are crying. The judge might not see them as a real person, but as a person on a television show.”

No clients appeared on Wednesday morning. A list posted inside the court showed more than ten unrepresented detainees who would have likely had a chance to meet with the family unity project under normal circumstances, according to Brooklyn Defender Services attorney Zoey Jones.

“Our biggest concern is that now we have no way of communicating with these people,” Jones told The Appeal. “If we can’t speak to them, they won’t understand why they didn’t get to go to court today, or why they don’t have a lawyer.”

Public defenders consider ICE’s decision to cancel detainee transports for three days and counting retaliatory. “There aren’t even protesters there,” said Saenz. “I could have never guessed that this would be the outcome of a small protest, because 201 Varick has been the site of protests for years. I’ve seen people lying down in the street and that didn’t stop court hearings.”

ICE has used protests to justify similar moves elsewhere this month. In Oregon, legal presentations with local immigration attorneys were canceled on June 20, 21, and 22 because “the ICE building was inaccessible due to ongoing protests,” Carissa Cutrell, an ICE spokesperson, told The Appeal. In response to an ACLU lawsuit, a federal judge has ordered the government to provide lawyers with access to the detainees at Oregon’s FCI Sheridan for a minimum of six hours a day for at least the next month, as well as “know your rights” trainings and individualized interviews by attorneys with detainees.

ICE did not immediately respond to a request for comment Wednesday about when it would resume transports to 201 Varick St., although a court employee told one family unity project attorney that operations could be back to normal as soon as tomorrow.

Cory Forman, another attorney who works with immigrants at Varick Street, had a different take after speaking with an ICE representative this week. “They feel that transporting detainees to court poses a risk to their officer’s safety, based on threats that they’ve received and the blocking of vans,” he said. “I specifically asked if this was going to be permanent, how long is this going to go on, and the impression I got is that it will definitely be for the foreseeable future and as long as they feel there’s a risk of safety to their officers, that’s what’s going to happen.”

ICE did not immediately respond to a request for comment on detainees’ access to legal assistance.

“The main thing that’s concerning me right now is simply getting people lawyers to help with cases,” Saenz said. According to Saenz, most of her clients are in detention for at least two months before their first court date.

“While people are sitting and waiting in detention and they don’t have lawyers, some of them are going to give up. They will just say, ‘Deport me.’ And that’s heartbreaking.”

This story has been updated with quotes from Cory Forman. Additional reporting by Max Rivlin-Nadler.

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Thousands of ‘Lawyer Moms’ Will Swarm Congress To Fight For Migrant Children

'We have a reaction as mothers to what’s been going on.'

Central American asylum seekers wait as U.S. Border Patrol agents take them into custody on June 12, 2018 near McAllen, Texas.
John Moore/Getty Images

Thousands of ‘Lawyer Moms’ Will Swarm Congress To Fight For Migrant Children

'We have a reaction as mothers to what’s been going on.'

What began as an online support group for lawyers with children has become a mobilizing force for thousands of people planning to bombard congressional offices nationwide on Friday in protest of the federal government’s treatment of migrant children and their parents.

Kate Lincoln-Goldfinch, an immigration attorney in Texas, wrote that she recently hit “the lowest moment in [her] career” when she met with an asylum seeker who had been separated from her son under the Trump administration’s new “zero tolerance” policy. According to Lincoln-Goldfinch, the woman had been holding the 5-year-old in her lap when an officer approached and informed her that he would be taking the boy “to the other side.”

My son clung to me and said he didn’t want to leave me,” she told Lincoln-Goldfinch. “The official grabbed him out of my arms and took him away and I just stayed there crying and crying.”

Lincoln-Goldfinch shared her client’s story in a “lawyer moms” online forum and found she was far from alone. The “heart-wrenching” stories these attorneys were hearing from new clients inspired the group to organize, Erin Albanese, an attorney in Washington State, told The Appeal.

Albanese, Lincoln-Goldfinch, and fellow moms decided to confront legislators face to face. They created a separate Lawyer Moms of America Facebook group on June 7 to plan and announce Friday’s Day of Action. Participants plan to drop off letters to demand family reunification and an end to the indefinite detention of migrant children who enter the country.

The online forum was not politically engaged before now. But once the Facebook group was created, the network of lawyer moms and their allies grew exponentially. There are now 15,000 supporters of the Facebook page, and Albanese estimates that roughly 50 percent of the people participating in Friday’s action are lawyers and mothers.

”We have a reaction as mothers to what’s been going on,” Albanese said. “As lawyers, the rights violations and illegality of it all really resonated with us in a different way.”

The action was first envisioned as a protest against the indiscriminate separation of children from their families, which ramped up after the Trump administration announced its zero-tolerance approach to prosecuting undocumented immigrants in April. As directed by Attorney General Jeff Sessions, federal prosecutors are to pursue criminal charges against anyone caught attempting to cross the border into the U.S.  The policy has resulted in migrant children, who can’t legally be detained by federal immigration officials, being torn away from loved ones.

Now, organizers are expanding the scope of Friday’s event to protest the potential incarceration of migrant children under a “temporary detention policy” outlined in an executive order signed by President Trump last week. The order directs the Department of Homeland Security to keep migrant children and parents locked up together. Detained children, including those separated from their families and ones who crossed the border as unaccompanied minors, have already been kept in tents in scorching hot weather, injected with psychotropic drugs against their will, and beaten and berated.

”It’s an issue that’s pretty universal,” Albanese said of the separations. Trump’s executive order did little to assuage the group’s concerns. “[It] appears to provide for migrant families to be detained together indefinitely, essentially creating internment camps,” Albanese said. The order also fails to address the plight of children who have already been separated, as Trump has punted the responsibility of coming up with a reunification plan to Congress.  

Until that happens, children will continue to suffer in detention and flounder during court proceedings, said Minda Thorward, another Lawyer Moms of America organizer based in Washington State. Thorward, who also practices immigration law, said stories of children holding on to drawings of their loved ones resonated with her. “These are people who are already fleeing horrible conditions: domestic violence, gang violence, even just abject poverty. Not having children with their parents just compounds that trauma,” she told The Appeal.

Emotional trauma is not the only consequence of separating children from their parents, Thorward said. Immigration court does not guarantee the right to counsel, which means young people—including babiesmust somehow represent themselves in complex interrogation over why their families left their homes.

“Are they part of a particular social group? Where is a safe place in their country [where] they could live? Did they try to go to the police in order to get protection? None of that is articulable by a 3-year-old or even a 6-year-old,” Thorward said.

The results of this breakdown are already becoming clear. Sitting before a judge last week, a 3-year-old boy in El Paso reportedly stared at a picture book and responded “¡Es un avión!”—It’s a plane!—when asked for his name.

According to Albanese, demanding that members of Congress reunify and assist migrant children is just the starting point for the newly politicized Lawyer Moms of America. The group has already created a list of resources and possible actions for supporters to take, such as calling their governors to pull the National Guard from the border or pressuring state attorneys general to sign on to federal lawsuits against the latest detention orders. Individual lawyer moms have also protested outside detention centers alongside immigration rights organizations. But future political engagement will largely depend on what Congress does.  

“Our goal is to end family separations and indefinite detentions and to reunite the families. Until that is happening, we’ll keep finding ways to raise our voices,” Albanese said. “We’re gonna hold their feet to the fire.”  

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