Risk and Needs Assessment and Race in the Criminal Justice System

By Katy Albis

It is impossible to talk about the justice system without talking about race. In fact, with several high-profile incidents involving violent contact between law enforcement officers and minority residents, so much of today’s conversation about justice policy and practice seems to focus specifically on race. But talking about race and justice in a comprehensive, solution-oriented way requires looking closely at very specific components of the system to determine how racial disparity manifests.

One such component is risk and needs assessment. Risk and needs assessment uses an actuarial evaluation to guide decision-making at various points across the criminal justice continuum by approximating a person’s likelihood of reoffending and determining what individual needs must be met in order to reduce that likelihood.

The use of risk and needs assessment is widespread throughout many jurisdictions in the U.S., but this year has seen multiple challenges to its use, including a May article by ProPublica that argued that one specific risk and needs assessment tool used in Broward County, Florida, is racially biased and leads to disparate outcomes for black defendants.

A Wisconsin Supreme Court case that drew further national attention to risk and needs assessment questioned the constitutionality of using risk and needs assessment in sentencing decisions. The appellant argued that his risk score unfairly took his gender into account and led to a sentence that was not individualized. Unanimously upholding the decisions of Wisconsin’s lower courts, the seven justices agreed that the risk and needs assessment tool was used properly in the appellant’s sentencing and that judges may continue to use it to inform sentencing.

The use of risk scores in sentencing remains controversial, however, especially in light of remarks made in 2014 by former U.S. Attorney General Eric Holder. At the National Association of Criminal Defense Lawyers 57th Annual Meeting and 13th State Criminal Justice Network Conference, Holder expressed concerns that these assessments “may inadvertently undermine our efforts to ensure individualized and equal justice.”

At the same time, some say that risk and needs assessment can actually combat bias 
in the criminal justice system when it is used appropriately. As the use of risk and needs assessment continues to grow, it is important for jurisdictions to have checks in place to ensure proper implementation.

“These (assessments) were designed to keep bias out, but without good adherence and fidelity to the model, we’re still going to have some room for bias to creep into the assessment process,” said Dr. Sarah Desmarais, a North Carolina State University psychology professor whose research focuses on risk assessment, at the 2015 Second Chance Act national conference in Washington, D.C.

Regular validation—a study that evaluates a risk and needs assessment tool’s accuracy—however, is necessary to ensure that the assess­ment is equally accurate across all racial groups. The validation study should be conducted by an independent party and should examine each item on the tool by race to isolate any items that may be contributing to bias, according to experts.

Beyond the validation study, consistent training and retraining of staff who administer the tool can prevent bias from entering the risk and needs assessment process. The state of Hawaii, for example, uses risk and needs assessment for case planning and supervision, and recently held statewide retraining and recertification for assessors after learning that its risk scoring procedures were outdated and inconsistent.

But even when a risk and needs assessment tool is validated and administered properly, 
its benefits can be limited unless the results are used to refer people to the correct programming and treatment to meet the individualized needs identified by the assessment. And while risk and needs assessment has consistently been shown to be more accurate than predictions of risk made without it, it should not be the only piece of information used to inform decisions through the criminal justice process.

Notably, risk and needs assessment does not mitigate high arrest rates for blacks, Hispanics and Latinos; high rates of police use of force against blacks; and other systemic issues that continue to pervade the national conversation about racial disparity in the criminal justice system.

The Council of State Governments’ Justice Center developed a multi-point inspection protocol for assessing and improving the quality of risk and needs assessment implementation, called the Risk Assessment Quality Improvement checklist. To learn more about this tool, contact Bree Derrick at bderrick@csg.org.

3 Things you can do to prevent bias in risk assessment

If agencies in your state are using a risk and needs assessment tool, you should know how the tool is performing and develop a plan to remediate any issues 
(e.g., scoring inconsistencies or low predictive accuracy) you may discover.

1. Validate your assessment tool.

  • Do a validation study that is conducted by an independent party.

  • Determine the tool’s predictive accuracy by race and gender, as well as for your overall population.

2. Assess quality of implementation of the risk and needs assessment tool.

  • Pinpoint the cause of any racial or gender bias that the validation study identified.

  • Conduct inter-rater reliability activities and focus groups to review how scoring protocols are being used in practice.

3. Develop a plan to address any bias with the risk and needs assessment tool itself (e.g., current weighting of items is causing unintended bias) or how it is being implemented and used (e.g., it is not being scored correctly).

  • Establish protocols to continually monitor the administration of risk and needs assessment tools.

  • Provide regular booster trainings to keep staff skills current and accurate.