The Need for Transparency in the Age of Predictive Sentencing Algorithms

Author:Alyssa M. Carlson
Position::J.D. Candidate, The University of Iowa College of Law, 2018; B.A., The University of Iowa, 2013
Pages:304-329
SUMMARY

Criminal law scholars devote substantial research to sociological and behavioral studies to determine characteristics common among reoffenders. This research aligns with a massive effort to reform the criminal justice system by reducing recidivism as a means to cure high crime rates and overcrowded prisons. Many scholars believe that by focusing resources on the criminal population that will... (see full summary)

 
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The Need for Transparency in the Age of
Predictive Sentencing Algorithms
Alyssa M. Carlson
ABSTRACT: Criminal law scholars devote substantial research to
sociological and behavioral studies to determine characteristics common
among reoffenders. This research aligns with a massive effort to reform the
criminal justice system by reducing recidivism as a means to cure high crime
rates and overcrowded prisons. Many scholars believe that by focusing
resources on the criminal population that will likely commit future crimes,
overall crime rates will decrease. The effort to reduce recidivism has led to the
creation of objective risk assessment tools. These are essentially algorithms that
purport to predict the likelihood that an individual will commit crime in the
future. While these predictive algorithms were first implemented to determine
parole conditions, they have become increasingly popular among courts and
are now routinely used in all phases of a criminal proceeding. As the demand
for predictive risk assessment formulas increases, many state governments
now look to private companies to develop these methods. However, the move
towards privatization raises issues of transparency, as companies are able to
maintain the secrecy of their algorithms by claiming trade secret protection. As
a result, defendants are unable to ensure the accuracy of the risk score results.
This Note argues that private companies who benefit by providing a public
service should be held to the same transparency requirements as public
agencies, and freedom of information disclosure requirements should be
extended to include proprietary predictive algorithms to achieve this result.
I.INTRODUCTION ............................................................................. 304
II. BACKGROUND ............................................................................... 307
A.RISK ASSESSMENT AS A RESPONSE TO AN OVERBURDENED
JUSTICE SYSTEM ...................................................................... 307
J.D. Candidate, The University of Iowa College of Law, 2018; B.A., The University of
Iowa, 2013. I would like to thank Professor Sarah Seo for encouraging me to write on this topic.
Thank you also to the members of the Iowa Law Review for their hard work during the editing
process, especially Courtney Brokloff, Nicholas Huffmon, and Lindsay Moulton. Finally, a special
thanks to Rich and Mary Jo Parrino, who have been a tremendous source of advice and support
throughout law school.
304 IOWA LAW REVIEW [Vol. 103:303
B.THE BASICS OF PREDICTIVE RISK ASSESSMENT TOOLS ............... 309
C.EXPANSION OF ACTUARIAL ASSESSMENTS IN CRIMINAL
SENTENCING ........................................................................... 313
D.GOVERNMENT TRANSPARENCY AND FREEDOM OF
INFORMATION ......................................................................... 316
III.HOW THE PRIVATE SECTOR IS CAPITALIZING ON TRADE
SECRET PROTECTION TO EVADE PUBLIC DISCLOSURE OF
ITS SENTENCING ALGORITHMS ...................................................... 318
A.A LOOK AT PREDICTIVE ALGORITHMS IN THE COURTS .............. 319
B.INVOKING TRADE SECRET PROTECTION TO AVOID
DISCLOSURE ............................................................................ 321
C.THE VALIDATION PROBLEM ..................................................... 322
IV. REQUIRING TRANSPARENCY FOR RISK ASSESSMENT FORMULAS
DEVELOPED BY PRIVATE, FOR-PROFIT COMPANIES ........................ 324
A.ACCESS TO INFORMATION ........................................................ 324
B.THE BENEFITS OF PUBLIC ACCESS TO RISK ASSESSMENT ............ 326
C.EXTENDING DISCLOSURE REQUIREMENTS TO PROPRIETARY
RISK ASSESSMENT INSTRUMENTS .............................................. 328
V.CONCLUSION ................................................................................ 329
I. INTRODUCTION
As the United States faces unprecedented rates of incarceration,1
criminal law experts seek to decrease recidivism, believing that a small
percentage of the population is responsible for a majority of crime.2 This
theory, known as “selective incapacitation,” is based on the idea “that a small
subset of repeat offenders is responsible for the majority of crime and that
incapacitating that small group would have exponential benefits for the
overall crime rate.”3 Researchers have started developing strategies that use
objective evidence to identify criminals representing the most serious risk to
1. See Claire Botnick, Note, Evidence-Based Practice and Sentencing in State Courts: A Critique of
the Missouri System, 49 WASH. U. J.L. & POLY 159, 159 (2015) (“The number of adults under some
form of correctional supervision in the United States has increased by 270 percent since 1980.”).
2. BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICING, AND PUNISHING IN
AN ACTUARIAL AGE 88–89 (2007).
3. Id. at 88; see also PAMELA M. CASEY ET AL., NATL CTR. FOR STATE COURTS, USING
OFFENDER RISK AND NEEDS ASSESSMENT INFORMATION AT SENTENCING: GUIDANCE FOR COURTS
FROM A NATIONAL WORKING GROUP 2 (2011) (“A sample of felony defendants from the nation’s
75 most populous counties during [2004] revealed that more than 75 percent had a prior arrest
history, and 53 percent had at least five prior arrest charges. Another study of nearly 275,000
prisoners released in 1994 found that two-thirds were rearrested for a new offense within three
years.” (citation omitted)).

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