A Changing Court: Risk-assessment Algorithms Replacing Judgment?

A Changing Court: Risk-assessment Algorithms Replacing Judgment?

Stephanie Harrison, J.D.

Risk-assessment in courtrooms regarding whether to release a defendant or not has traditionally consisted of the judge reviewing court records and using intuition. Recently, courts have switched to using algorithms to help determine whether a defendant should be released or remain in custody. This switch takes much of the risk-assessment out of the judges’ hands, and in turn eliminates any potential bias.

The algorithm uses nine risk factors to evaluate and anticipate how a defendant will act if released under court supervision instead of held until trial. The risk factors include: age at current offense, current violent offense, pending charge at the time of the offense, prior misdemeanor conviction, prior felony conviction, prior violent conviction, prior failure to appear to a court hearing in the past two years, prior failure to appear older than two years, and prior sentence to incarceration.

The algorithm is meant to aid judges in determining risk by allocating scores for three categories: whether a defendant will commit a new criminal activity, commit a new violent criminal activity, and if the defendant will fail to appear. Each category will be allocated a score from 1-6, the higher the score correlating to a higher risk. Judges would then base their decision to release or not with the help of that score. This system is not meant to replace judicial judgment, but rather aide it.

The issue this presents is that judges do not know the algorithm behind the scores. Because the algorithms are proprietary information, judges are unable to explain how the algorithm determined the scores it allocated to each category. This uncertainness has created the debate of how much emphasis should judges give the algorithm results in making their decisions.

While the uncertainty of this new system remains, attorneys will be an important part of determining its future in the criminal justice system. Counsel will be necessary advocates for defendants not only to help ensure the algorithm is given an appropriate level of consideration, but also to aid those who feel this algorithm unfairly characterizes their behaviors without any explanation.