The most sacred responsibility of any lawmaker is to ensure that we protect the people we serve. That means everybody, not just certain select groups. Unfortunately, when it comes to criminal justice in Idaho, existing practices in the state threaten the very concept of fairness guaranteed to all of its citizens. The current use of risk assessment to determine the fate of people who have been arrested and charged with committing a crime represents a fundamental failing of our system.
So what are risk assessment algorithms and what do they do? Basically, they accumulate a bunch of data, and then using arcane computations, determine which factors correlate with a higher risk of committing a new crime, as well as the risk of failing to appear in court as required. Next, categories of risk are created — either low, medium or high, or using a numerical scale of increasing risk, e.g., one through six. Judges and other government officials then use this information to label people, i.e., put them into categories for purposes of sentencing or setting bail and conditions of release.
Unfortunately, studies have shown that risk assessment is flawed. In 2016, ProPublica published a report entitled Machine Bias: There’s Software Used Across the Country to Predict Future Criminals. And It’s Biased Against Blacks. The title says it all. Research by the authors revealed that the algorithm used in part to predict recidivism for purposes of sentencing, was biased against African-American defendants. Called the COMPAS tool, it was also the subject of a lawsuit in Wisconsin, in which a criminal defendant asserted that it was similarly biased against men.
The subsequent reaction has been extremely strong. Late last year, a policy statement calling for the nationwide elimination of pretrial risk assessments was issued by 110 national civil rights groups, which included the Leadership Conference of Civil Rights Organizations, ACLU, and NAACP.
With all that in mind, what are we doing in Idaho to address and fix the flaws in our system? The answer is stark, problematic and deeply disturbing: absolutely nothing.
Accordingly, this week I introduced legislation that would put Idaho at the forefront of this issue. It aims to ensure that all of our citizens — wherever they came from, whatever they look like and whomever they may be — are able to enjoy the equal protection of our state laws. If we are to be a truly free people, it is crucial that we make every effort to protect individuals from computerized discrimination.
The bill is very straightforward. It states that tools that are not shown to be free of bias against protected classes cannot be used in Idaho. Second, it brings needed sunshine and transparency so that criminal defendants, judges, prosecutors and the general public are able to scrutinize the tool and the recommendations it makes.
For any lawmaker to stand on the sidelines, knowing there are serious issues with bias in these algorithms and to do nothing about this problem, is to evince a lack of courage that is contrary to the values of Idaho going back to statehood. Esto Perpetua, our state motto, means “Let it be perpetual.” In this critical matter, we must also guarantee that the right to equal protection under the law and to be free from discrimination is a perpetual right to all people in our great state.