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A new risk assessment tool for sentencing in PA criminal cases—reform or more harm? | Opinion

Patriot-News - 9/7/2019

On September 5, 2019, the Pennsylvania Commission on Sentencing adopted a Sentence Risk Assessment Instrument that has been subject to harsh criticism and lacks public approval. After years of consideration, the commission has now acted to make the criminal sentencing system more unfair and no more reliable than a coin flip.

I have seen first-hand, both as a prosecutor and now as a defense attorney, the challenges our courts face in issuing criminal sentences, and reforms are badly needed to assist Pennsylvania’s judges. Unfortunately, the commission has now acted to increase the risk of systemic irregularities.

In 2010, the Pennsylvania General Assembly mandated that the commission create a risk assessment tool to aide in the sentencing of criminal defendants. The purpose of the 2010 mandate was to develop an instrument to assist the courts in considering whether an individual is at risk for re-offending or whether alternative sentencing programs (such as Drug Treatment Court or Veterans Court) would be effective.

The commission was also instructed to use empirical data to determine what factors help predict recidivism, and ultimately, adopt a risk assessment tool to be used by courts in sentencing. In recent years, many different instruments have been considered, including a mathematical algorithm. The commission has now adopted a final sentencing instrument that uses a “risk assessment score,” based on various risk factors, to determine whether a defendant is viewed as high or low risk for recidivism.

While most agree that the goal of improving sentencing for criminal defendants is worthwhile and necessary, there continues to be significant disagreement about how to get there. The instruments considered and now adopted by the commission have been criticized as biased, in part because the underlying arrest and recidivism data is considered to be biased. Concerns have also been raised that the use of factors--such as zip code and education level--would disparately impact ethnic groups that already have a higher likelihood of arrest and are disproportionally sentenced and punished for the same offenses as other groups. Lawyers, scholars, and sociology experts have testified that the good intentions of the commission will now be undermined by a sentencing tool that will actually cause more disparity for groups that are already at a disadvantage.

In adopting the update to the sentencing instrument, the commission acted against the overwhelming testimony received at recent public hearings held in August 2019 in Harrisburg, Philadelphia, and Pittsburgh. I testified before the commission at the Pittsburgh hearing on August 22, on behalf of the Pennsylvania Association of Criminal Defense Lawyers (PACDL). PACDL also provided prior testimony regarding the sentencing instrument, and has made clear to the commission that criminal defense lawyers generally believe the proposal should have been rejected and that the commission’s mandate should now be rescinded.

The sentencing instrument as adopted considers certain factors such as age, gender, geographic data, and education level, which would have the effect of disproportionally identifying African-American and Hispanic defendants as high-risk for recidivism. The underlying data relied upon to identify such risk factors has been shown to be racially biased, and thus should be deemed unreliable and inaccurate.

Members of the public who made comment to the commission shared these concerns. During particularly poignant testimony, an African American male questioned how the commission and its new instrument would treat him. Years ago, the young man served time resulting from a felony conspiracy charge. He chose to enter a guilty plea because he could not afford to fight the charge and did not qualify for court-appointed representation. He has since dedicated his life to community service, but under many of the instruments in use by probation departments he would be considered “high risk” due to the felony conviction, his residential zip code and his peers.

Another concern is that the instrument as adopted will rely on assessment tools currently in use by probation departments to assess supervision status. These tools vary widely in terms of the factors relied upon and their statistical accuracy. Defense attorneys will have a difficult time advising their clients about what they will be asked and how their underlying characteristics will be assessed. Because neighboring counties may be relying on different assessment tools, there is a real concern about disproportionate sentences. For example, a defendant with cases in multiple counties may be treated very differently by each county depending on the data relied upon by the assessment instruments.

Now that the commission has adopted the Sentence Risk Assessment Instrument, it is up to the General Assembly to stop implementation of this new tool and for defense counsel to demand transparency about its implementation, question the data relied upon in each county, and challenge potentially unconstitutional treatment of their clients.

Laurel Gift is a partner with Schnader Harrison Segal & Lewis LLP and is vice president of the Pennsylvania Association of Criminal Defense Lawyers. Gift served as a senior deputy attorney general for the Pennsylvania Office of Attorney General and as an assistant district attorney in Allegheny County.

Danielle T. Bruno, who contributed to this article, is an associate with Schnader Harrison Segal & Lewis LLP in the firm’s litigation services department.

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