Ten years after the state legislature mandated that the Pennsylvania Commission on Sentencing create a risk assessment tool to be used at sentencing, the commission finally voted on and passed a proposal in early September.

The vote comes on the heels of more than three years of public hearings in which the commission and criminal law reform advocates debated the details of proposals while thousands of Pennsylvanians spoke out in opposition to the use of risk assessment tools at sentencing.

Let’s talk about the version of the commission’s risk assessment tool that ultimately passed and what is next.

How does the risk assessment tool that passed work?

Before an individual appears at sentencing, a web-based computer program calculates a risk score, according to the risk assessment tool created by the commission. If the individual scores “high” or “low” according to the tool, a notation is added to the sentencing guidelines form instructing the judge to seek “additional information.” The sentencing judge will not receive the person’s risk label, only a notation regarding more information.

Why is the risk assessment tool problematic?

As with previously proposed versions of the risk assessment tool put forth by the commission, the data points in the worksheet used to label an individual as low, medium, or high risk are steeped in racial biases baked into the system. What’s more, the high-risk label is accurate only about half the time — no better than a coin toss.

What’s next?

Unless the state legislature explicitly rejects the risk assessment tool, it will go into effect on July 1, 2020. Beginning in January, the commission will begin six months of training to help judges learn how to use the tool. Some legislators have floated the idea of not only rejecting the risk assessment tool, but overturning the original mandate. Read more about what legislators can do next in this piece from Senators Street and McClinton.

We will continue to monitor proposals before the commission and work to oppose any and all policies that would perpetuate mass incarceration and racial biases. You can sign up for email updates from the ACLU of Pennsylvania to get the latest information about the commission’s next steps and other important civil liberties issues in the commonwealth.

What’s the good news?

The commission members heard you.

The risk assessment tool could have been much worse. Thanks to more than a thousand ACLU of Pennsylvania members who spoke up to oppose the proposal, thousands of other Pennsylvanians who shared their opposition at the Commission, testimony from dozens of impacted community members, and critical feedback from data scientists, advocates, attorneys and many partners, the commission made key changes at the 11th hour so that the version of the risk assessment tool that ultimately passed is far better than the earlier versions.

These changes included scrapping a plan to turn over those individuals deemed to be low and high risk to county probation officers — who are already overworked and under-staffed — to conduct a second even more problematic risk assessment tool and make a final recommendation to the sentencing judge on risk. Moreover, in the current version, a sentencing judge no longer sees the risk labels generated by the tool. Finally, the commission removed many of the extremely problematic factors used to calculate risk. This would have compounded the racial biases that already plague the proposal while slowing the entire sentencing process to a glacial pace that would have meant more people spending more time in jail awaiting sentencing.

Because of your voice, some of the worst pieces of the risk assessment tool were abandoned.

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