Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk

52 Pages Posted: 26 Feb 2021 Last revised: 12 Apr 2021

See all articles by Amy Cyphert

Amy Cyphert

West Virginia University - College of Law

Date Written: 2020

Abstract

The First Step Act, a seemingly miraculous bipartisan criminal justice reform bill, was signed into law in late 2018. The Act directed the Attorney General to develop a risk and needs assessment tool that would effectively determine who would be eligible for early release based on an algorithmic prediction of recidivism. The resulting tool—PATTERN—was released in the summer of 2019 and quickly updated in January of 2020. It was immediately put to use in an unexpected manner, helping to determine who was eligible for early release during the COVID-19 pandemic. It is now the latest in a growing list of algorithmic recidivism prediction tools, tools that first came to mainstream notice with critical reporting about the COMPAS sentencing algorithm.

This Article evaluates PATTERN, both in its development as well as its still-evolving implementation. In some ways, the PATTERN algorithm represents tentative steps in the right direction on issues like transparency, public input, and use of dynamic factors. But PATTERN, like many algorithmic decision-making tools, will have a disproportionate impact on Black inmates; it provides fewer opportunities for inmates to reduce their risk score than it claims and is still shrouded in some secrecy due to the government’s decision to dismiss repeated calls to release more information about it. Perhaps most perplexing, it is unclear whether the tool actually advances accuracy with its predictions. This Article concludes that PATTERN is a decent first step, but it still has a long way to go before it is truly reformative.

Keywords: First Step Act, recidivism, algorithmic prediction, PATTERN, COVID-19, criminal justice, reform, risk assessment, machine learning, department of justice, transparency, racial disparity,

JEL Classification: K14

Suggested Citation

Cyphert, Amy, Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk (2020). Seton Hall Law Review, Vol. 51, 2020, WVU College of Law Research Paper No. 2021-003, Available at SSRN: https://ssrn.com/abstract=3793685 or http://dx.doi.org/10.2139/ssrn.3793685

Amy Cyphert (Contact Author)

West Virginia University - College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

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