Why the First Step Act is, at best, a ‘baby step’
For David Patton, executive director of the Federal Defenders of New York, The First Step Act should be called the “baby step act,” he told the Daily Appeal by phone. “It’s limited.” This is true for a number of reasons, but in our conversation, Patton focused on the legislation’s heavy reliance on risk assessment tools in determining who is eligible to earn time credits for early release. People forget that it should be a risk “and needs” assessment, he says, and the needs side is important. When needs are part of the equation, we ask not only whether a prisoner might pose a danger to someone else, but rather what makes sense to help with that person’s future. “Does a prisoner need vocational training? Substance abuse or mental health treatment?” To use risk assessment scores instead “to decide directly how much time someone should spend in prison is really problematic, and this bill does that.”
This is not only because risk assessment tools have been shown, time and again, to perpetuate and magnify racial disparities, although that fact looms large for many. “While we applaud the use of evidence to reduce recidivism, the reliance on factors like a person’s history, educational background, and other demographic factors to classify them risks exacerbating and further embedding historical and institutional patterns of bias, particularly against individuals of color,” experts Colleen Chien and Clarence Wardell III write in The Hill. “Similar concerns are being raised by the civil rights community about the application of risk assessment tools in pretrial detention contexts in dozens of jurisdictions and of sentencing tools in 28 states. These automated systems, often built on incomplete and biased data, are part of what Michelle Alexander has called ‘newest Jim Crow’ and Virginia Eubanks has called the ‘digital poorhouse.’” [Colleen V. Chien and Clarence Wardell III / The Hill].
This is not a theoretical worry: These tools are already dictating who is behind bars and who goes home, and they are only as good as their design. Last year, ICE changed its computerized risk assessment software “so that it always recommends detention for apprehended immigrants to conform to Trump’s ‘zero tolerance’ stance on illegal immigration,” reports Motherboard. “This change led to an almost immediate increase in the detention of immigrants with little to no criminal history, who would’ve normally been released on bond until their court date.” And in California, what could have been a landmark bail reform bill became a step backward when it created a presumption of detention and left the task for developing risk assessment tools “to each locality” ultimately giving “judges total discretion to decide whether to release an individual and on what conditions,” which many believe will lead to more people detained pretrial, not fewer, according to professor Erwin Chemerinsky.
The First Step Act, for its part, tasks the attorney general with developing and adopting the assessment system “to provide prisoners with tailored treatment based on whether they were minimum, low, medium, or high risk,” Chien and Wardell note. The bill would require the attorney general to consult with an independent review committee when developing the tool and would require regular reporting on overall recidivism and on racial disparities. But it “falls short” because the attorney general is not accountable to the committee and because there is no mechanism for sharing prisoner-level data or for disclosing details about what factors will be relied upon by the risk assessment system or how. Chien and Wardell recommend that lawmakers or the Department of Justice enact provisions mandating more transparency that would release de-identified data to researchers and relevant communities, along with details about the resulting system. They also ask that members of the civil rights community be invited to serve on the independent review committee. [Colleen V. Chien and Clarence Wardell III / The Hill]
“Risk factors” that are used to construct assessment tools broadly fall into two categories, according to the National Center for Biotechnology Information: static factors, which are “generally unchangeable information such as previous offense history” and dynamic factors, which include “current symptoms, use of alcohol or illicit substances, and compliance with treatment.” These dynamic factors are changeable and offer the opportunity for intervention. Patton points out, however, that it’s unclear how anyone could meaningfully measure dynamic factors for people who are incarcerated. “I’m not aware of any scoring system that’s been validated by science or research for people who are in institutions” and “it’s not clear one could be validated.” Patton says that leaves us with the possibility of using a scoring system that doesn’t yet exist, or using the tools that are out there today, which produce biased results. Either way, he says, “you would not want to use that score to directly impact the length of someone’s sentence as opposed to the programming someone gets.”
That is why Patton’s office told lawmakers that if they wanted to adopt a system with an objective, evidence-based risk and needs assessment to individualize the programming, they should not tie early release credits directly to those assessment scores, but rather measure success within those programs. The question should be, “are they in fact doing the programs that your scoring system says they should do?” Not only did the First Step Act fail to do that, Patton said, but “they compounded the problem further by having a whole host of exclusions for eligibility criteria.” And “the fact that only people in the low-risk categories are eligible means that people at higher risk won’t have incentives to do risk reduction programming. That’s not just bad policy,” he adds. “What it likely means is that you’re actually crowding out the programming, making it less likely that the people most in need of programming will get it.”
“Finally,” write Chien and Wardell, “it is unclear whether prison administrators will be required to follow the tool’s recommendations—studies of similar systems show that judges often deviate, leading, in the case of Kentucky for example, to judges overruling the presumptive default to deny release without bail to persons of low or moderate risk two-thirds of the time.” Patton agrees. “There is a whole history that gives us reason to believe it won’t be implemented in the most productive way. Sitting here today, the Bureau of Prisons could be letting people out earlier than they do, they don’t take full advantage of prerelease custody and halfway houses in the way they’re authorized to. They don’t make recs on compassionate release for older medically disabled inmates. They don’t need this bill to do that.” Could this bill push them to release more people? Sure, he says, but he isn’t optimistic. “Like all things, if the agency is just constitutionally opposed to letting people out early, they are going to drag their feet.”