Requirement 7: Policymakers must ensure that public policy goals are appropriately reflected in these tools Requirement 7: Policymakers must ensure that public policy goals are appropriately reflected in these tools
The use of risk assessment tools has the potential to obscure—and remove from the public eye—fundamental policy decisions concerning criminal justice. These include choices about the point at which societal risk outweighs the considerable harm of detention to a defendant and their family, and how certain a risk must be before the criminal justice system is required to act on it (i.e., how accurate, valid, and unbiased a prediction needs to be before it should be relied upon to deprive an individual of liberty). Use of these tools also includes choices about the nature and definition of protected categories and how they are used. In addition, important decisions must be made about how such tools interact with non-incarcerative measures aimed at rehabilitation, such as diversion measures or provision of social services. These are challenging policy questions that cannot and should not be answered by toolmakers alone, and will instead require active engagement from policymakers, judicial system leaders, and the general public.
One key example of how seemingly technical decisions are actually policy decisions is the choice of thresholds for detention. California’s S.B. 10 legislation, for example, would create a panel to establish thresholds that define probabilistic risk as “low,” “medium,” or “high” of failing to appear for court, or committing another crime that poses a risk to public safety. See Cal. Crim. Code §§ 1320.24 (e) (7), 1320.25 (a), effective Oct 2020. Meanwhile, the First Step Act requires the Attorney General to develop a risk assessment system to classify inmates as having a minimum, low, medium, or high risk of committing another crime in the future. First Step Act, H.R.5682 — 115th Congress (2017-2018). The selection of these thresholds will ultimately determine how many people are detained versus released.
Risk thresholds like those mandated by S.B. 10 and the First Step Act are policy choices that must be chosen with respect to the broader criminal justice process, specific criminal justice policy objectives, and appropriate data to inform those objectives. Policymakers at both the state and federal level must decide which trade-offs to make to ensure just outcomes and lower the social costs of detention. For example, if a major goal is to reduce mass incarceration in the criminal justice system, thresholds should be set such that the number of individuals classified in higher risk categories is reduced. In addition to gathering input from relevant stakeholders, threshold-setting bodies (whether legislatures, panels, or other agencies) should practice evidence-based policymaking informed by relevant and timely crime rates data, and plan to revisit and revise their decisions on an ongoing basis.