NACDL - News Release ~ 09/11/2019

News Release

NACDL Voices Concerns about DOJ’s First Step Act Risk and Needs Assessment System

Washington, DC (Sept. 11, 2019) – Yesterday, National Association of Criminal Defense Lawyers (NACDL) President Nina J. Ginsberg submitted to U.S. Attorney General William Barr NACDL’s comments on the Department of Justice’s First Step Act Risk and Needs Assessment System – PATTERN – published in July. And this morning, NACDL Executive Director Norman L. Reimer delivered remarks concerning the same at the Department of Justice (DOJ) as part of Listening Sessions the DOJ is holding with First Step Act stakeholders. While NACDL supported passage of the First Step Act and its promise of reduced sentences for thousands of defendants and prisoners, the Association is concerned about the fairness and fallibility of algorithmic decision-making, such as is presented by the PATTERN risk and needs assessment system announced this summer by the DOJ.

As explained by NACDL President Nina J. Ginsberg, such algorithmic decision-making, “is only as good as the data it crunches. And, in the criminal justice context, it reproduces and thus exacerbates racial and socioeconomic disparities that often reflect disparate policing and prosecutorial practices, systematic implicit bias, and limited access to fully resourced defense counsel. These observations drive our concerns about the fairness and predictive accuracy of PATTERN’s risk score system.”

In that regard, NACDL’s specific concerns about PATTERN include (i) the weight given to criminal history and its disparate impact on poor people and people of color in the federal prison population, (ii) the disproportionate emphasis on youth at the time of first conviction, (iii) the inadequate recognition of evidence of rehabilitation, (iv) the weight afforded to infractions and the failure to distinguish older infractions, and (v) the lack of transparency which precludes any meaningful assessment as to whether PATTERN “has a high level of predictive performance,” as claimed by the DOJ.

In his oral statement at the Listening Session today, Norman Reimer stressed that a pervasive flaw in PATTERN is the overemphasis given to criminal history, especially when the conviction occurs prior to an individual’s 18th birthday. Mr. Reimer noted that criminal history is often driven by disparate policing practices, implicit bias at all stages of the criminal justice system, and the lack of adequately resourced defense counsel in states and localities. He noted that, “while PATTERN purports to predict recidivism for federal inmates, much of their criminal history is a result of local prosecutions, where the crisis in public defense disadvantages minorities and the poor.”

In its written and oral submissions to the Department of Justice, NACDL has strongly urged full transparency as well as adjustments to the PATTERN risk and needs assessment system, consistent with NACDL’s expressed concerns.

A link to NACDL’s September 10, 2019, Comments to AG Barr on DOJ’s First Step Act Implementation Tools is available here.

Contacts

Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.