Algorithm to reform criminal sentencing in Pa. faces deluge of criticism

The algorithm is supposed to make the criminal sentencing in Pa. fairer. Critics say it will exacerbate inequities.

State Correctional Institution at Camp Hill, Pennsylvania

State Correctional Institution at Camp Hill, Pennsylvania (AP Photo/Marc Levy)

Nearly a decade after being tasked with the assignment, a state commission is still grappling with a mandate to create a risk assessment algorithm for Pennsylvania judges to use during criminal sentencing procedures.

The algorithm is intended to make the criminal justice system fairer and cut the state prison population by making the sentencing process more objective — smoothing out disparities in punishments ordered by different judges.

But even after some the Pennsylvania Commission on Sentencing tweaked the algorithm to appease opponents, the newest version of the proposed tool is getting poor marks from advocates.

During more than two hours of public testimony in Philadelphia on Wednesday — one of five hearing scheduled across the state in December — some of the 11-member commission were present to hear wall-to-wall opposition, which included several calls for lawmakers to scrap the legislation that kickstarted the body’s work.

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“We need to treat everyone in this system as a person, not a number,” said Lorraine Haw, a member of the Coalition to Abolish Death by Incarceration.

The proposed algorithm is designed to predict recidivism, defined by the commission as the likelihood someone will be arrested and convicted within three years of being released from prison or completing probation.

That risk — characterized as either low, medium or high — is calculated based on a person’s age, gender, prior convictions and other pieces of criminal history.

In Pennsylvania, where the incarceration rate for black people is nine times the rate for white people, witness after witness told the commision the risk assessment tool would reinforce racial disparities.

Nyssa Taylor, criminal justice policy counsel with the ACLU of Pennsylvania, called it unconstitutional because the algorithm is weighted differently for men and women.

“All men receive one point in the risk assessment score and women receive zero. Our state and federal courts have said that that is explicit gender discrimination. Gender discrimination is prohibited at sentencing,” said Taylor in an interview after her testimony.

Critics also emphasized that the commission’s own analysis shows that their algorithm is particularly flawed.

The commission found the current version of their risk assessment tool is 85 percent accurate when it comes to identifying low-risk defendants.

The total dips to 52 percent when it comes to identifying high-risk defendants.

“That’s a coin flip,” said Rev. Gregory Holston, executive director of POWER, an interfaith organization that fights for social justice.

The commission will hear testimony later this week in Pittsburgh and Warren County.

The next formal meeting for the body is in March. Executive Director Mark Bergstrom said he’s committed to fulfilling the commission’s mandate, but acknowledges the possibility of an impasse.

“Our system right now is not great and we need to take steps to improve it, but we have to make sure we’re not causing harm,” said Bergstrom.

After comparing the algorithm to the sometimes errant auto-correct function on smartphones, Rep. Stephen Kinsey, D-Philadelphia, said he’d support repealing the commission’s mandate.

State Sen. Shariff Street, D-Philadelphia, said he thinks there’s “substantial” support in the Senate to change the mandate.

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