Wnited States Senate ‘WASHINGTON, DC 20510 February 5, 2018, ‘The Honorable Judge William H. Pryor, Jt ‘The Honorable Jefferson Sessions Acting Chair Attorney General United States Sentencing Commission United States Department of Justice (One Columbus Circle, NE 950 Pennsylvania Ave NW Suite 2-500, South Lobby ‘Washington, DC 20530 ‘Washington, DC 20002 Dear Attomey General Sessions Judge Pryor, and Sentencing Commission: Last month it was revealed that the United States Sentencing Commission (USSC) did not ‘comply with instructions from the Department of Justice (DOL) in 2014 to prepare a study of algorthm-based risk assessment tools and their uses in federal sentencing and corrections. We are writing o find out why the USSC failed to complete the study and to encourage it to do so within the next six months. ‘The Sentencing Reform Act of 1984 requires the DOJ"s Criminal Division to submit tothe USSC an annual report which comments on sentencing guidelines, suggests warranted changes, and assesses the USSC’s work,! The annual report sent tothe USSC on July 28, 2014 requested a study as well as policy statement on the proper role of risk assessment inthe federal criminal Justice system.? It expressed DO1’s concer about the use of risks and needs assessments in sentencing and corrections, Specifically, it cautioned against the growing trend of basing imprisonment terms on factors suchas education level, employment history, Family circumstances, and demographic information, instead of the ime committed and proven in court, Three days later, in a speech to the National Association of Criminal Defense Lawyers, then U.S. Attomey General Eric Holder expressed similar concerns and urged the USSC to study the use of data in front-end sentencing and to issue a report with recommendations based on careful, independent analysis.» Despite these clear and imperative instructions, the requested report was not released in 2014 or 2015. (On June 15, 2016, the Electronic Privacy Information Center (EPIC) submitted a Freedom of Information Act (FOIA) request to DOJ regarding DOL's use of various algorithm-based tisk assessinent fools. (Attachment A) In March 2017 EPIC filed a lawsuit seeking release ofthe records requested, including a copy ofthe report requested in 2014 by Attomey General Holder and the Criminal Division, Last month after having conferred with “knowledgeable Department 228 USC. $9940). * Lae ftom Jonathan Wroblewski, Dieta ofthe Office of Policy Legion to Pai Sars, Chur ofthe Sentencing Commission Gul 29201), valle a wn std anc/201 4080/20 donna ster-fi-072816 pa {htt Gana i ai, Rens ote Nan Assan fii Df Layes St Ana Meeting (Aug 1, 201), aval at iss justi ‘tiona-ssciatontiminldenslawyers: Shpersonnel”, DOJ finally acknowledged to the court in a December 14, 2017 Join Status Report ‘that the USSC simply did not isue the report on rsk assessment tools as instructed by Attorney General Holder and the Criminal Division in July 2014 (Attachment B) We are requesting that you provide the Senate Judiciary Committee and the Senate Commerce, Science, & ‘Transportation Committee an update about the status ofthat report as soon as possible. We ‘would also appreciate information on whether the USSC ever actually attempted to conduct the evaluation as requested, and why the accompanying report was never issued ‘The use of rsk assessment tools in the criminal justice system is widespread and steadily increasing. There re currently several pieces of legislation before Congress which would require the Bureau of Prisons to use risk and needs assessment systems. At all levels, policy makers and others need to better understand what factors influence decisions in the eriminal justice system, Risk assessments make judgments about individuals based on group tendencies, which raises {questions of faimess. There are valid concems that some algorithms may exacerbate racial disparities by relying on socioeconomic factors correlated with rae or ethnicity to set bail, determine sentencing, and even contribute to ultimate determinations of guilt or innocence.* Given these concerns about faimess and transparency, we are troubled thatthe Commission has not taken the time to explore this issue We urge the USSC to take these concerns seriously and request that within the next six months it ‘complete a study of algorithmic risk assessment tools and also issue a policy statement to guide Jurisdictions implementing these tools. ‘Thank you for your attention to this important issue and for your consideration of ur requests, Sincerely, i" Booker he ‘Schatz z United States Senator United States Senator “Lael ekbouse, Big Data May Be Reinforcing Rail Bias Inthe Criminal utice Sem, Washington Post, Fe. 10,2017 crab hp. sashes com apnea itn bering inch ist lia Angwin Jeff Larson, Racial Bie i Criminal Rik Scores Matiemavicaly ees no somes beinsemista athena invinble