Efforts to move the U.S. criminal justice system to evidence-based policymaking and public-safety-oriented decision-making are laudable and extremely important. As a matter of historical and international comparison, the U.S. incarcerates an abnormally high number of people (in absolute numbers, per capita, and per crime rate: see Figures 1-3). Thus, significant reforms to address that problem are justified and urgent based on the available data. This context has driven the adoption of risk assessment tools, and it is crucial to note that nothing in this report should be read as calling for a slowing of criminal justice reform and efforts to mitigate mass incarceration.
Rather, our aim is to help policymakers make informed decisions about the risk assessment tools currently in deployment and required under legislative mandates, and the potential policy responses they could pursue. One approach is for jurisdictions to cease using the tools in decisions to detain individuals until they can be shown to have overcome the numerous validity, bias, transparency, procedural, and governance problems that currently beset them. This path need not slow the overall process of criminal justice reform. In fact, several advocacy groups have proposed alternative reforms that do not introduce the same concerns as risk assessment tools. Brandon Buskey and Andrea Woods, Making Sense of Pretrial Risk Assessments, National Association of Criminal Defense Lawyers, (June 2018), https://www.nacdl.org/PretrialRiskAssessment. Human Rights Watch proposes a clear alternative: “The best way to reduce pretrial incarceration is to respect the presumption of innocence and stop jailing people who have not been convicted of a crime absent concrete evidence that they pose a serious and specific threat to others if they are released. Human Rights Watch recommends having strict rules requiring police to issue citations with orders to appear in court to people accused of misdemeanor and low-level, non-violent felonies, instead of arresting and jailing them. For people accused of more serious crimes, Human Rights Watch recommends that the release, detain, or bail decision be made following an adversarial hearing, with right to counsel, rules of evidence, an opportunity for both sides to present mitigating and aggravating evidence, a requirement that the prosecutor show sufficient evidence that the accused actually committed the crime, and high standards for showing specific, known danger if the accused is released, as opposed to relying on a statistical likelihood.” Human Rights Watch, Q & A: Profile Based Risk Assessment for US Pretrial Incarceration, Release Decisions, (June 1, 2018), https://www.hrw.org/news/2018/06/01/q-profile-based-risk-assessment-us-pretrial-incarceration-release-decisions. Accordingly, the choice is not simply between current systems like cash bail and newer algorithmic systems.
Another option is to embark on the project of trying to improve risk assessment tools. That would necessitate procurement of sufficiently extensive and representative data, development and evaluation of reweighting methods, and ensuring that risk assessment tools are subject to open, independent research and scrutiny. The ten requirements outlined in this report represent a minimum standard for developers and policymakers attempting to align their risk assessment tools—and how they are used in practice—with well-founded policy objectives.
While the widespread use of risk assessments continues, administrative agencies and legislatures driving deployment have a responsibility to set standards for the tools they are propagating. In addition to the ten requirements we have outlined in this report, jurisdictions will also need to gather and incorporate significant expertise from the fields of machine learning, statistics, human-computer interaction, criminology, and law in order to perform this task. At this stage, we should emphasize that we do not believe that any existing tools would meet properly set standards on all of these points, and in the case of Requirement 1, meeting an appropriately set standard would require major new data collection efforts.
PAI believes standard setting in this space is essential work for policymakers because of the enormous momentum that state and federal legislation have placed behind risk assessment procurement and deployment. But many of our members remain concerned that standards could be set with the aim of being easy to meet, rather than actually confronting the profound statistical and procedural problems inherent in using such tools to inform detention decisions. It would be tempting to set standards that gloss over complex accuracy, validity, and bias problems, and to continue deployment of tools without considering alternative reforms.
For AI researchers, the task of foreseeing and mitigating unintended consequences and malicious uses has become one of the central problems of our field. Doing so requires a very cautious approach to the design and engineering of systems, as well as careful consideration of the ways that they will potentially fail and the harms that may occur as a result. Criminal justice is a domain where it is imperative to exercise maximal caution and humility in the deployment of statistical tools. We are concerned that proponents of these tools have failed to adequately address the minimum requirements for responsible use prior to widespread deployment.
Going forward, we hope that this report sparks a deeper discussion about these concerns with the use of risk assessment tools and spurs collaboration between policymakers, researchers, and civil society groups to accomplish much needed standard-setting and reforms in this space. The Partnership on AI would, where it is constructive, be available to provide advice and connections to the AI research community to facilitate such efforts.