“Risk Assessment” Cannot Solve Systemic Injustice of Prisons

After 40 years of waging a failed war on crime in poor communities, conservative and progressive policy makers finally are being compelled to release the pressure valve and find ways to reform our troubled criminal justice system. The increasingly prevailing solution involves risk-assessment tools that often quantify the experience of incarcerated people to determine the extent to which they pose a public safety threat. But can the framework of risk measure the redemptive power of a second chance? And to what degree are the factors that determine “risk” situational – access to jobs, housing and community support, for example – and therefore potentially beset with race and class biases?

With more than 2.3 million people incarcerated, 7 million under some form of correctional supervision and more than 650,000 people returning from prisons each year, America is in the midst of a moral crisis. That crisis won’t be ameliorated by simply measuring re-entry and programmatic “outcomes” or hinging the success of people returning from incarceration on some Wall Street investor’s need for a substantial return on investment on a Social Impact Bond. We instead need parallel audacious national and local reforms that pry us away from our insatiable thirst for punishment and replace our current system with one that we can be proud of as Americans – one that is fair, compassionate, rehabilitative and allows for redemption.

For the past 40 years, we have eroded the fabric of our democracy by checking our conscience at the courtroom door. After four decades of waging a failed war on crime in poor communities, we’ve spent $1 trillion and arrested 45 million people, and drugs are as inexpensive as ever and more widely available. The prison system, serving as an economic engine for rural communities across America, is bursting at the seams. In states such as California, where the prison population has grown 750 percent in the past 30 years, the Supreme Court has demanded a solution to crowding, only to be met with the shuffling of prisoners into local jails to avoid complying with the spirit of the court’s decision. Prisons across the country are filled with mentally ill and aging people who pose little threat to public safety, inside facilities that lack the resources or will to provide them with adequate health care. Because we’ve transferred our public health and education problems into the criminal justice arena, low-level drug users are imprisoned instead of treated, and young people, mostly poor people of color, are ripped out of schoolyards and carted off to prison yards.

However, the economic downturn of 2008, coupled with the $80 billion cost of our prison system, finally have inspired some policymakers and forced others to begin to release the proverbial pressure valve on a system that has failed abysmally. With an eye toward reform, states have turned to a number of “risk assessment” tools to determine who should be released from their overburdened facilities. For instance, New York state relies on a Risk Assessment tool called Compas to analyze a prisoner’s potential for release during parole hearings. Factors such as the nature of the crime, age, marital status, ties to the community and education level are quantified to determine the extent to which a person poses a threat to public safety. Similar systems are in place in state parole boards across the country.

Picking up on the trend, criminal justice reform advocates across the country are gaining traction by adopting policy reform framing that capitalizes on the “measurement of risk” terminology. We now know that people age out of crime and therefore geriatric prisoners pose a very low risk to public safety. People with access to education while in prison significantly lower their risk of returning to prison, and even US Attorney General Eric Holder has touted the value of removing felony disenfranchisement laws to lower recidivism. Yet even with all this available evidence and these tools that are touted as the reformer’s toolbox of evidence-based practice, the most significant risk-related reforms amount to tinkering with a behemoth of a system.

So far the US government has made only mostly symbolic efforts toward overhauling this dysfunctional system. President Obama, who has used his pardon authority parsimoniously throughout his presidency, recently commuted the sentences of eight people convicted of drug crimes under mandatory-minimum laws only. Like the 8,000 other people who are languishing in prison under these laws, each had been sentenced to absurdly long terms in federal prison for low-level drug offenses. The president now seeks other “worthy” candidates for pardon – but the standard set is so high that it seems only “perfect victims” of the drug war are worthy of release. Even if the focus of pardons is confined to people incarcerated for nonviolent drug offenses, people with multiple convictions for drug use and sale also should be considered, because these coupled behaviors often suggest a cycle of addiction and relapse. However, even this type of evidence-based policy seems to go too far within this cautious “reform” environment, and the president instead hangs his hat on what’s politically palatable.

Other surface-level, barely perceptible measures have been taken regarding sentencing. The attorney general’s office has issued a series of progressive sentencing guidelines to prosecutors of low-level drug offenders, but local prosecutors are in no way compelled to follow those guidelines. In 2010, Congress moved to address drug war sentencing disparities with the Fair Sentencing Act, offering a meager bump in the right direction. Yet, all of these gestures do little to effectively respond to a crisis that has devastated communities and created a permanent underclass with little hope of breaking the cycle of poverty.

The multitude of collateral consequences associated with criminal convictions, including barriers to housing, education, employment, public benefits and voting, further marginalize and alienate the very people we should be working to introduce to the fabric of our communities. There is no better way to incentivize criminal behavior than to send a message to formerly incarcerated people that they have no stake in their own communities. While risk assessment tools and evidence-based research and practices are a vital part of reform efforts, they do not absolve us of our moral responsibility as a country. Couching reform in “risk” offers the kind of cowardly political “out” that makes it easy to bury the faces and ignore the stories of people, families and entire communities whose lives have been devastated by prison time.

What risk assessment tools can’t measure is the power of redemption, a human capacity that belongs to people who have committed all sorts of crimes, including murder. Are we so morally bankrupt that we do not believe that people have the capacity to change? We’ve reduced human beings saddled with criminal convictions to statistical probabilities, but what do we now owe the communities that have been ravaged by such gross indifference?

While the identification, assessment, and prioritization of risk may assuage racially coded fears bolstered by sensational media accounts of violence, those processes do not call to account the decision-makers who built their careers on the backs of people swept off the streets and thrown into prison cells, or the millions of Americans who allowed this to happen on their watch. Clearly, the neutral and politically safe terminology of “risk assessment” allows decision-makers the ability to avoid the more loaded and truthful conversation we need to have about systemic racism.

However, with a criminal punishment system on full-throttle, America won’t solve its prison crisis using the same logic used to construct those prisons. In the name of reform, we have settled on an automated and mechanical solution to a bizarre and inhumane system, weighing each individual life using factors that excuse us of our responsibility to those lives. Yet, America too has a chance at redemption. But first, as with slavery, Women’s Rights, HIV/AIDS and Internment Camps, Americans must wake up, be honest and courageous and say, “We were wrong.”