Disparate impact cases depend on the idea that a law or policy may be facially neutral while in effect imposing a disproportionate impact on a select group. While I have argued that risk-needs tools could survive equal protection analysis even with the most protected categories of race and ethnicity and using the stringent test of strict scrutiny (assuming the statistical footing was adequately strong), others quarrel with this notion. Some have voiced concerns that many of the factors in the instruments are merely proxies for demographic characteristics and should be eliminated on the same terms. (238) Scholars note that education and employment are correlated with race and social class, (239) potentially even serving as statistical stand-ins for race. (240) Even a staunch proponent of risk-needs results in correctional decisions contends that wealth-based measures may be seen as proxies for race and, therefore, ought to be scrutinized carefully by judges as to their legitimacy. (241)
However, disproportionate impact, including burdening a racial minority, is not the only measure for finding unconstitutional discrimination in equal protection law. (242) Per the Supreme Court, "our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact." (243) The "settled rule" is that equal protection "guarantees equal laws, not equal results." (244)
Thus, the Supreme Court has generally rejected proxy arguments absent proof of discriminatory intent, such as holding that a law that restricted low income housing was not regarded as intentionally targeting race, despite clear evidence of disproportionate impact on racial minorities. (245) The Court has not been persuaded by disproportionate results in other cases. Claimants' "naked statistical argument" of a welfare policy's disproportionate impact on a minority group was insufficient in itself to show the requisite racial motivation. (246) In another case, an employment qualification test involving verbal ability, vocabulary, and reading comprehension for police officers was upheld even though it resulted in fewer black applicants passing; the creation and implementation of the test was not deemed to exemplify a discriminatory purpose. (247)
Indeed, stark statistical contrasts in the impact of a policy on protected groups have not sufficed for courts to presume discriminatory intent. Thus, an employment preference given to veterans was inadequate evidence of discriminatory intent based on gender, even when ninety-eight percent of veterans were male. (248) In addition, a federal sentencing law requiring much longer sentences for crack cocaine defendants than powder cocaine offenders was not deemed to have a discriminatory purpose, notwithstanding evidence that ninety-four percent of crack offenders were black. (249) Other appellate courts have agreed that the disparate impact of longer crack cocaine sentences than cocaine, though a distinct proxy for race, was insufficient to constitute an equal protection violation where the evidence of racial animus or discriminatory intent by officials was, at most, contradictory, and other racially neutral reasons were provided. (250)
As a general rule, proxy arguments in terms of disparate impact in the context of risk-needs instruments would likely fail from an Equal Protection Clause perspective. Despite the reality that many of the variables therein disproportionately impact groups based on race, gender, and socioeconomic status, equal protection law will not itself exclude them. There is simply no evidence that the criminologists, forensic scientists, policy advocates, criminal justice officials, or politicians who have embraced evidence-based criminal justice practices in general, and risk-needs assessments in particular, did so for any reason related to a discriminatory animus of a group subject to heightened scrutiny. Certainly, the intent has been to bias high risk and violent offenders specifically, however these do not constitute protected groups, and the resulting relevant rational basis review clearly condones their disparate treatment.
2. Prisoners' Rights
The use of risk-needs tools to inform correctional decisions regarding security classification, institutional placement, programming, probation, parole, and supervisory conditions may implicate civil rights outside of equal protection. A criminal defendant under the supervision of criminal justice authorities, whether pretrial or post-conviction, retains his constitutional rights to the extent they "are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." (251) Nevertheless, this area of constitutional law governing prisoners' rights has taken interesting and unique turns in the course of the last few decades.
For various important legal issues, the Supreme Court has adopted far more lenient standards of review for potential constitutional violations in the context of correctional practices. An exception to the leniency is sentencing, which carries its own legal structure and is addressed separately later. The decisions of correctional officials are treated differently and receive deference from the courts because, "courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform." (252) The Court recognized that the penal system offers a distinctly unique background in which officials are attempting to manage in a uniquely dangerous environment. (253)
Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, "a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint." (254)
As a result, judges are reluctant to intervene in issues of correctional and supervision practices. (255) Thus, judgments regarding prison operation and security "are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." (256) Prisoners' rights law is implicated in two areas, regarding decisions that infringe upon fundamental rights or trigger due process protections.
Correctional subjects do not entirely lose constitutional guarantees, though the Supreme Court has reduced the standard of review for infringements upon most of those rights to a unitary and deferential test. Per the seminal case in prisoners' rights litigation of Turner v. Safley, a correctional policy that otherwise trespasses upon a constitutional right is "valid if it is reasonably related to legitimate penological interests." (257) The Court explained its reasoning for such a low standard in spite of transgressing a fundamental right that would trigger heightened scrutiny in other areas of the law (such as equal protection): "Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration." (258)
The Court has used the Turner v. Safley rationale when evaluating claims by correctional subjects involving intrusions on such fundamental rights as speech, (259) association, (260) religion, (261) searches, (262) and self-incrimination. (263) This means that in the realm of most correctional practices, risk-needs assessments will presumably withstand constitutional muster for a host of decisions, even if the consequences otherwise breach important individual rights. At one point, the Court generally declared that the Turner standard of review "applies to all circumstances in which the needs of prison administration implicate constitutional rights." (264) Still, the Court has since clarified that the deferential stance in favor of the decisions of prison officials is subject to at least one exception: equal protection analysis of explicit race-based prison cell assignments. In the 2005 case of Johnson v. United States addressing automatic cell assignments based solely on race and ethnicity, a majority maintained that the permissive Turner test was appropriate for "rights that are 'inconsistent with proper incarceration,'" and the "right not to be discriminated against based on one's race ... is not a right that need necessarily be compromised for the sake of proper prison administration." (265) The decision was controversial though, with a 5:3 vote (one justice not participating) and a scathing dissent that would have retained Turner's presumptive deference.
Deservedly, Johnson has fostered confusion about other potential exceptions to the Turner standard. Courts are in disagreement, for instance, about whether equal protection claims in corrections law cases regarding other protected categories, such as gender or alienage, continue to be subject to the lenient Turner test or instead deserve protected status. (266) If the answer is the former, then the government's use of gender and alienage in risk-needs tools fare even better in the prisoners' rights area than the previous equal protection analysis requiring a heightened review suggested. Almost certainly, an argument that significant differences in recidivism risk and criminogenic needs between genders or citizenship status is at least reasonably related to governmental interests in a correctional context, per the lax Turner test, could succeed...
Risk-needs assessment: constitutional and ethical challenges.
|Position::||III. Critical Observations of Risk-Needs Assessments A. Constitutional Considerations 1. Equal Protection d. Proxies through Conclusion, with footnotes, p. 261-291|
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