Sandra G. Mayson

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impacts. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race; (2) adjustments to algorithmic design to equalize predictions across racial lines; and (3) rejection of algorithmic methods altogether. This Article’s central claim is that these strategies are at best superficial and at worst counterproductive because the source of racial inequality in risk assessment lies neither in the input data, in a particular algorithm, nor algorithmic methodology per se. The deep problem is the nature of prediction itself. All prediction looks to the past to make guesses about future events. In a racially stratified world, any method of prediction will project the inequalities of the past into the future. This is as true of the subjective prediction that has long pervaded criminal justice as it is of the algorithmic tools now replacing it. Algorithmic risk assessment has revealed the inequality inherent in all predictions, forcing us to confront a problem much larger than the challenges of a new technology. Algorithms, in short, shed new light on an old problem. Ultimately, the Article contends, redressing racial disparity in prediction will require more fundamental changes in the way the criminal justice system conceives of and responds to risk. The Article argues that criminal law and policy should, first, more clearly delineate the risks that matter and, second, acknowledge that some kinds of risk may be beyond our ability to measure without racial distortion—in which case they cannot justify state coercion. Further, to the extent that we can reliably assess risk, criminal system actors should strive whenever possible to respond to risk with support rather than restraint. Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that supports the risk.

Yale L. J. 2218 (2019) Yale Law Review,

By Lila Kazemian

This paper reviews the empirical literature on desistance from crime among adolescents and adults and the factors that explain (dis)continuity in criminal behavior in the transition to adulthood. It also highlights the implications of this knowledge base for various criminal justice agencies. Drawing on the research literature and relevant theoretical frameworks, the paper offers nine key recommendations on desistance-promoting criminal justice policy and practice.  Our criminal justice interventions would benefit from a paradigm shift that expands from an exclusive focus on recidivism to the consideration of positive outcomes that may result in reduced involvement in crime. Program evaluations that prescribe to this new paradigm should: (a) integrate the well-established fact that desistance from crime occurs gradually and that setbacks are to be expected; (b) consider changes in individual and social outcomes in addition to behavioral measures; (c) offer a balanced assessment of both failure and success outcomes and invest resources in tracking progress before, during, and after any given intervention; and (d) provide incentives for success. Biosocial research has suggested that from a cognitive perspective, emerging adults (18-24 years old) may resemble adolescents more than adults. It would then be logical to extend assumptions about reduced culpability to individuals up to the age of 24. Young adult courts are an example of such an accommodation. The age crime curve confirms that most individuals are likely to give up crime during emerging adulthood; in many cases, criminal justice processing during this period may be counterproductive and might delay the process of desistance from crime that would otherwise occur naturally. Prosecutors play a key role in fostering desistance by avoiding further processing for individuals who do not pose a significant threat to public safety. Longer prison sentences are not effective in promoting desistance from crime and reducing recidivism. Confinement disrupts the desistance process in many ways, and it should be used only as a last recourse. When possible, jurisdictions should favor alternatives to confinement for both juveniles and adults. Few individuals remain active in crime after the age of 40. Barring exceptional circumstances for those who pose a clear threat to public safety, there is no empirical basis for incarcerating individuals for decades past mid-adulthood. Because the decision to give up crime is regarded as a gradual process rather than an abrupt event, preparation for release from confinement should ideally begin early in the sentence for those cases where incarceration is deemed necessary. Individuals can make constructive use of their time in prison if they can find meaning to their sentence, get to the root of the reasons that brought them to prison in the first place, and develop a plan for their return to society. These are essential components of the desistance and reintegration processes. Interactions with law enforcement may disrupt desistance in many ways that are not necessarily well understood by officers. Given that most initial contacts with law enforcement do not result in further criminal justice processing, arrests that do not lead to a conviction constitute a poor measure of criminal behavior and may create unnecessary stigma that hampers the desistance process. This stigma disproportionately affects individuals belonging to socially marginalized groups. Convictions or incarcerations may be more valid indicators of official crime. The stigma of a criminal record has enduring effects on the ability to successfully reintegrate into society. Expungement laws can help offset some of the negative consequences of the stigma of a criminal record. The mere prevalence of past offending is insufficient to assess the future risk of reoffending. We need to account for other dimensions of the criminal record, including the recency and intensity of involvement in past crimes. Housing and employment policies that adopt a blanket ban against individuals with a criminal record cannot be justified based on public safety concerns and are detrimental to the process of desistance from crime. 8. 9. Many state and local jurisdictions have developed promising initiatives and interventions that draw on principles of the desistance paradigm, but few have been rigorously evaluated. Partnerships between policymakers, practitioners, and academics are crucial to conducting more systematic assessments. We also need to better understand whether the level of responsiveness to any given intervention varies across demographic groups (specifically age and gender), criminal history characteristics, and histories of trauma. Efforts to promote desistance from crime are not the sole responsibility of one agency. The most promising desistance-promoting policies and practices rely on ongoing partnerships between the various agents of the criminal justice system and community resources, including law enforcement, prosecution, corrections, and community organizations.    

(Washington, DC: U.S. Department of Justice, National Institute of Justice, 2021), NCJ 301497. 2021. 38p.

By Matthew B Robinson

The book provides a thorough summary of the relationships between race, ethnicity, crime, and justice practice and discusses the existence of disparities in criminal and juvenile justice practices and highlights the impact of race and ethnicity on the law, policing, courts, and corrections.It addresses the issue of institutionalized discrimination against different racial and ethnic groups in American institutions, including the criminal law and mainstream media.

Carolina Academic Press, 2021, 317 pages