Why PATTERN shouldn't determine "priority release" during COVID

Along with more than 150 organizations, we called on the Attorney General to rescind guidance which said that only individuals assessed as minimum risk by PATTERN — a risk assessment tool built as a result of the First Step Act — should receive “priority treatment” for release during the COVID-19 pandemic.

RE: The use of the PATTERN risk assessment in prioritizing release in response to the COVID-19 pandemic

Dear Attorney General Barr:

On behalf of The Leadership Conference on Civil and Human Rights (The Leadership Conference), a coalition of more than 220 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States, and the undersigned organizations and individuals, we write to express our grave concerns with your March 26, 2020 memo to the Federal Bureau of Prisons (“Bureau of Prisons” or “Bureau”), concerning the prioritization of home confinement in response to the COVID-19 pandemic. We ask that you rescind this memo in its entirety, and want to share particular concerns with the use of PATTERN — a risk assessment system built as a result of the First Step Act — as a factor in determining which currently incarcerated individuals may receive “priority treatment” in transfer and release decisions. Further, we ask that you immediately work to safely reduce the federal prison population using your broader existing authority, as well as the expanded authority afforded to you under the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act.

COVID-19 is spreading rapidly in cramped U.S. prisons and jails, where hundreds of thousands of vulnerable people face sickness and death. Already, hundreds of prisoners and staff have tested positive, and the first federal prisoner died from COVID-19 on March 22, 2020. This is a health emergency that urgently requires expedited releases from incarceration to enable social distancing and to protect people in prison and jail, correctional staff, and communities.

On March 26, 2020, you issued a memorandum directing the Bureau of Prisons to transfer some vulnerable people from prisons to home confinement in the name of minimizing their exposure to COVID-19. We believe the restrictions you identify in this memo for home confinement eligibility are extremely troubling. In particular, you indicate the Bureau should rely upon an assessment tool, PATTERN, which numerous civil rights and legal organizations have previously warned is problematic and likely to perpetuate racial disparity in decision-making. Moreover, your directive to the Bureau regarding PATTERN’s use for home confinement decisions during an emergency health crisis was not its intended use, and limits transfer prioritization to those assessed as “minimum risk.” The use of a tool like PATTERN to make life or death decisions is alarming and serves to justify leaving tens of thousands of people — mainly people of color — unprotected and at the mercy of a deadly pandemic.

Your memo instructs that only people who receive a “minimum” risk score from the PATTERN tool will receive “priority treatment.” According to data furnished by the Department of Justice in February, individuals classified as minimum risk are the smallest cohort of the federal prison population, compared to the groups identified as low, medium, or high risk. Also, based on an analysis of PATTERN using a sample of the federal prison population, and reported by the National Institutes of Justice, only 7 percent of Black men in the sample were classified as minimum, compared to 30 percent of White men. This indicator alone should give the Department of Justice great pause in moving forward with the memo’s directive.

Experts have repeatedly criticized PATTERN, noting that the tool is scientifically unverified, and that the assumptions built into its design encode bias against Black people, Latino people, poor people, unhoused people, and people with mental illness.

Given the unprecedented and immediate risk that COVID-19 poses to people in prison and prison workers, we categorically reject the use of PATTERN or any other recidivism risk assessment tool to justify leaving vulnerable people incarcerated.

Recommendations

1. The undersigned organizations and individuals recommend that the Department of Justice and Bureau of Prisons use their many authorities to decarcerate as many people as possible through all avenues of release, from all facilities under their control, as soon as possible. No release should be conditioned on electronic monitoring, nor should those afforded accelerated release be subject to heightened surveillance.

2. The undersigned organizations call on the Department of Justice and Bureau of Prisons to abandon the use of PATTERN and all other recidivism risk assessment tools for any form of release recommendation or decision-making, now and in the future.

3. PATTERN risk scores cannot inform assessment of medical risk and should not play any role in determining who receives access to adequate healthcare. As jail and prison protocols are developed to facilitate accelerated release and accommodate CDC safety guidelines for those incarcerated and facility personnel, punitive measures such as solitary confinement must not take the place of adequate health care. Moreover, institutional protocols must ensure that public health measures do not have collateral effects on the behavioral records—automated and otherwise—of those incarcerated.

Our Specific Concerns with PATTERN

I. Predictions of recidivism are wholly inappropriate for informing medical release and public health in the context of a pandemic.

• Because PATTERN’s forecast of “general recidivism” is based on an incredibly broad definition of “re-offend”, it is highly likely to produce assessments that are biased against Black people and people of color, and that disproportionately impact those experiencing homelessness, or living with mental health issues.

• The memo says that the risks of detention must be weighed against the risks of release; however, the “general recidivism” score produced by PATTERN does not help in making this assessment.

• When tools conflate the likelihood of arrest for any reason with risk to public safety, a large number of people will be labeled a threat without sufficient justification. Risk assessments that include minor offenses or technical violations in their definition of “risk” will inflate risk scores and incarceration rates and exacerbate racial inequalities. In the context of COVID-19 and this memo, this means a much higher risk of illness and of fatality.

II. Limiting release to people with a “minimum” risk score will produce significant racial bias.

• By conditioning release decisions on PATTERN risk scores, the Bureau of Prisons is poised to leave Black people and people of color disproportionately exposed to harm. Under this memorandum, only 7 percent of Black men currently incarcerated would receive “priority treatment,” whereas 30 percent of White men would. This disparity is the byproduct of historical patterns in the ways different racial groups are treate differently by the criminal justice system.

• Black people and people of color are treated more harshly than similarly situated White people at each stage of the legal system, which results in serious distortions in the data upon which PATTERN relies. Historical court and arrest data primarily reflect the past and present operations of the criminal justice system, recording who police chose to arrest, how judges choose to rule, and which people are granted longer or more lenient sentences. By relying on this data, PATTERN systematically overestimates the risk of people of color. There are no technical fixes to these problems that could make PATTERN and similar tools safe and fair to use.

• These biases are compounded by the fact that people of color have increased risk of illness and death from COVID-19 infection, due to structural health inequalities.

• The choice of PATTERN’s risk thresholds — in other words, the process of determining how many individuals are rated minimum or low risk by PATTERN — was not done with this pandemic in mind. Under this memo, an individual who is assessed as having an 89 percent chance of “success” upon release (meaning they would not be rearrested or have a technical violation within 3 years) would not be prioritized for potential release.

III. We are in an unprecedented situation, and historical arrest data are irrelevant to any assessment of public safety risk, especially during a pandemic.

• PATTERN’s validity rests on the assumption that criminal history data can serve as a reliable and neutral measure of underlying criminal activity, but such records cannot be relied upon for this purpose.

• Any predictions based on historical arrest data are ill-suited to make predictions about public safety risk in the current moment. Given the extraordinary circumstances under which we are currently living, historical crime data amount to “zombie” data — meaning the data used to build these models do not apply to our current conditions.

• Despite fears of increased criminal activity, local police are reporting that crime levels (including violent crime) have plummeted to some of the lowest levels seen in years. Thus, there is strong reason to believe that the likelihood of arrest for any crime would be much lower than historical patterns indicate.

• Moreover, part of the promise of PATTERN was that it would give people the opportunity to reduce their risk scores by participating in programming. Yet, not enough time has passed for people to take advantage of this opportunity. As a result, it is unlikely anyone has had the chance to meaningfully alter their risk score, let alone be reassessed.

In conclusion, our communities for years have warned decision-makers — including the Department of Justice — and the public about the risk of predictive technologies in high stakes human decision-making systems. Tools like PATTERN are unfair, biased, and wrong on their own merits. But using them in a process to decide who gets the right to access social distance and freedom in the worst global pandemic in generations is particularly wrong. Therefore, we urge you to use your existing and expanded authority under the CARES Act to transfer as many people as possible into home confinement, without any of the limitations articulated in your memo, given that hundreds of thousands of lives are at stake. If you have any questions, please feel free to contact Sakira Cook, Director, Justice Reform Program, The Leadership Conference on Civil and Human Rights, at cook@civilrights.org.

Sincerely,

Organizations

1. 334 East 92nd Street Tenant Association

2. A Little Piece of Light

3. ACLU

4. AI NOW

5. Alabama Justice Initiative

6. All of Us or None, Bakersfield

7. Alliance of Families for Justice

8. Alternate Roots

9. American-Arab Anti-Discrimination Committee

10. Autistic Women & Nonbinary Network

11. Beauty After the Bars

12. Believers Bail Out

13. Bend the Arc

14. Black and Pink Boston

15. Block Builderz

16. Buried Alive Project

17. Carceral Tech Resistance Network

18. California Coalition for Women Prisoners

19. California Legal Research

20. Campaign for Youth Justice

21. Center for Disability Rights, Inc.

22. Center for Justice Research - Texas Southern University

23. Center for Law and Social Policy (CLASP)

24. Center on Privacy & Technology at Georgetown Law

25. Charles Hamilton Houston Institute for Race and Justice

26. Church of Scientology National Affairs Office

27. CJI

28. Coalition for Women Prisoners NYS

29. College and Community Fellowship

30. Community Justice Exchange

31. Cornell University

32. Council on American-Islamic Relations (CAIR)

33. CRIFC

34. Criminal Justice Policy Program, Harvard Law School

35. Criminal Justice Program, UCLA School of Law

36. Critical Race Studies Program, UCLA School of Law

37. CURE (Citizens United for Rehabilitation of Errants)

38. Defender Impact Initiative

39. Defending Rights & Dissent

40. Dignity and Power Now

41. Dream Deferred

42. Dream Deferred Inc

43. Drug Policy Alliance

44. Entre Hermanos

45. Equal Justice Under Law

46. Equality California

47. Essie Justice Group

48. Fair and Just Prosecution

49. Faith in Texas

50. FAM Queen Team

51. Families for Justice as Healing

52. Fjah

53. Florida Legal Services, Inc.

54. Free Hearts

55. Giving Others Dreams - G.O.D

56. Harm Reduction Coalition

57. Haverford College

58. Health in Justice Action Lab, Northeastern University School of Law

59. Human Rights Watch

60. IBW 21st Century Police Accountability Task Force

61. Innocence Project

62. Jewish Council for Public Affairs

63. Just Futures Law

64. Justice For Housing

65. Justice Strategies

66. Justice Support Group

67. JusticeLA

68. Juvenile Law Center

69. LatinoJustice PRLDEF

70. Lawyers' Committee for Civil Rights Under Law

71. The Leadership Conference Education Fund

72. The Leadership Conference on Civil and Human Rights

73. Legal Action Center

74. Legal Services for Prisoners with Children

75. Life After Release

76. Life for Pot

77. Massachusetts Against Solitary Confinement

78. Massachusetts Bail Fund

79. Matters of the Heart

80. Media Alliance

81. MediaJustice

82. Media Mobilizing Project

83. Mijente

84. MomsRising

85. NAACP

86. NAACP Legal Defense and Educational Fund, Inc.

87. National Action Network

88. National Association of Criminal Defense Lawyers

89. National Association of Social Workers

90. National Bar Association

91. National Council for Incarcerated & Formerly Incarcerated Women & Girls

92. National Council of Churches

93. National Disability Rights Network

94. National Immigration Law Center

95. National Lawyers Guild

96. NETWORK Lobby for Catholic Social Justice

97. New Beginnings Reentry Services, Inc.

98. New Direction Coaching & Consulting, LLC

99. New Haven Women's Resettlement Working Group

100. NYU Law Center on Race, Inequality, and the Law

101. OVEC-Ohio Valley Environmental Coalition

102. Participatory Defense Hubs

103. People's Paper Co-op

104. Pillars of The Community Participatory Defense

105. PolicyLink

106. Presbyterian Church (USA) Office of Public Witness

107. Pretrial Justice Institute

108. Prison Policy Initiative

109. Public Justice Center

110. ReEntry Matters

111. Reintegrated Voices

112. Release Aging People in Prison/RAPP

113. Reproductive Justice Inside

114. Resilience OC

115. Richmond Community Bail Fund

116. Rise and Resist

117. Robert F. Kennedy Human Rights

118. S.T.O.P. - Surveillance Technology Oversight Project

119. Silent Cry Inc.

120. Silver State Equality-Nevada

121. Southeast Asia Resource Action Center

122. State Vs Us Magazine

123. T'ruah: The Rabbinic Call for Human Rights

124. Texas Civil Rights Project

125. The Bail Project

126. The Black Sex Worker Collective

127. The Daniel Initiative

128. The Decarceration Collective

129. The Greenlining Institute

130. The Healing Project

131. The National Council for Incarcerated and Formerly Incarcerated Women and Girls

132. The National Reentry Network for Returning Citizens

133. The Tadini House

134. The Talking Drum Incorporated

135. The United Methodist Church - General Board of Church and Society

136. Tucson Second Chance Community Bail Fund

137. UCLA School of Law

138. Upturn Toward Justice in Technology

139. UnidosUS

140. Union for Reform Judaism

141. Union Theological Seminary

142. United Methodist Women

143. University of Chicago Law School

144. Washington Lawyers' Committee for Civil Rights and Urban Affairs

145. What’s Next Washington

146. Witness to Mass Incarceration

147. Women Against Mass Incarceration

148. Women on the Rise

149. Women Who Never Give Up, Inc

150. Working Families Party

151. WV Citizens for Clean Elections

152. Young Women’s Freedom Center

Individuals

1. Chelsea Barabas; Doctoral Candidate, MIT

2. Ruha Benjamin, PhD; Associate Professor, Princeton University

3. Meredith Broussard, PhD; Associate Professor, New York University

4. Joy Buolamwini; Founder, Algorithmic Justice League

5. Sasha Costanza-Chock, PhD; Associate Professor, MIT

6. Kate Crawford, PhD; Distinguished Professor, Co-Founder, Co-Director, AI Now Institute,

NYU

7. Colin Doyle; Criminal Justice Policy Program, Harvard Law School

8. Bernard E. Harcourt, PhD; Professor of Law & Political Science, Columbia University

9. Stefan Helmreich, PhD; Professor & Elting E. Morison Chair, MIT

10. Martha Minow; 300th Anniversary University Professor, Harvard University

11. Cathy O’Neil, PhD; Author, Weapons of Math Destruction

12. Rodrigo Ochigame; Doctoral Candidate, HASTS, MIT

13. Heather Paxson, PhD; Professor of Anthropology, MIT

14. Seth J. Prins, PhD MPH; Assistant Professor, Columbia University

15. Vincent Southerland; Executive Director, Center on Race, Inequality, & the Law, NYU School of Law

16. Meredith Whittaker, Co-Founder, AI Now Institute and Minderoo Research Professor, NYU

17. Jordi Weinstock; Lecturer on Law, Harvard Law School