UCLA Criminal Justice Law Review

Risk assessment algorithms lie at the heart of criminal justice reform to tackle mass incarceration. The newest application of risk tools centers on the pretrial stage as a means to reduce both reliance upon wealth-based bail systems and rates of pretrial detention. Yet the ability of risk assessment to achieve the reform movement’s goals will be challengedif the risk tools do not perform equitably for minorities. To date, little is known about the racial fairness of these algorithms as they are used in the field. This Article offers an original empirical study of a popular risk assessment tool to evaluate its race-based performance. The case study is novel in employing a two-sample design with large datasets from diverse jurisdictions, one with a supermajority white population and the other a supermajority Black population.

Statistical analyses examine whether, in these jurisdictions, the algorithmic risk tool results in disparate impact, exhibits test bias, or displays differential validity in terms of unequal performance metrics for white versus Black defendants. Implications of the study results are informative to the broader knowledge base about risk assessment practices in the field. Results contribute to the debate about the topic of algorithmic fairness in an important setting where one’s liberty interests may be infringed despite not being adjudicated guilty of any crime.

One of the flaws in the operation of the criminal justice system is not only the failure to be attentive to cost, but an arrogance that somehow you can never put a price on justice. Even if incarceration provides significant benefits, the sober realization that it comes at a significant cost has been long missing from judge and jury decisionmaking.

How do police select suspects for witnesses to identify? There is currently no standard for the quantity of evidence required before investigators can order an identification procedure. Because eyewitness misidentification continues to be the leading cause of wrongful convictions, law and policy should guide police discretion at this investigatory stage by requiring detectives to show an evidentiary basis for placing suspects in lineups, showups, or photo arrays. The American Law Institute has proposed an addition to the Model Penal Code requiring police to have a strong basis in factual evidence before conducting identification procedures. The American Psychology-Law Society called for an evidence-based suspicion standard. Current law provides Fifth Amendment due process challenges to the suggestiveness of such procedures post hoc but does not address the reasons police may apply them to subjects ab initio, which is a Fourth Amendment concern. Reviewing Terry v. Ohio (1968), Justice Brennan’s dicta in Davis v. Mississippi (1969), and Maryland v. Buie (1990), this Article outlines Fourth Amendment-based arguments for developing a standard of evidence for initiating identification procedures, concluding that the reasonable suspicion standard of Terry is insufficient, and an articulable facts standard should be implemented.

The United States Constitution guarantees all citizens the same basic rights and privileges; however, citizens with criminal convictions are subject to a number of regulatory restrictions on fundamental rights (such as disenfranchisement, ineligibility for public housing and benefits, employment discrimination, etc.) regardless of the seriousness of the offense. These restrictions are called collateral consequences, and they effectively relegate citizens with criminal convictions to a state of second-class citizenship. The U.S. Supreme Court has published several opinions construing Section 2 of the Thirteenth Amendment, also known as the Enabling Clause, as not only abolishing slavery but also empowering Congress to eradicate all badges and incidents of slavery. However, the U.S. Supreme Court has provided little guidance on what constitutes the badges and incidents of slavery, and Congress has scarcely used its authority under the Enabling Clause. The countless collateral consequences that follow criminal convictions are many of the same “badges and incidents of slavery” imposed on slaves during the institution of slavery, and Congress has the authority to eradicate them via the Enabling Clause.This Comment urges Congress to eliminate all collateral consequences that follow criminal convictions and puts forth a three-part analysis to aid courts in identifying modern badges and incidents of slavery.

This Comment considers a previously unexamined, and particularly vile, consequence of the movement towards consumer arbitration clauses: their impact on incarcerated people and their families. Incarceration is physically, emotionally, and financially ruinous for both the incarcerated and for families who are routinely forced to subsidize their loved one’s incarceration through paying for things like phone calls and basic needs that prisons fail to meet. The burden on families has only increased as governments have contracted various aspects of correctional systems out to private companies that charge exorbitant prices for basic services, knowing full well that consumers have no choice but to comply if they want to provide for and stay connected to incarcerated loved ones. This system would be inhumane enough without the added element of forced arbitration. This Comment hopes to shine a light on how mandatory arbitration clauses make an already exploitative situation all the worse. Not only are families of the incarcerated charged outrageous and illegal prices to communicate with and protect their loved ones, but mandatory arbitration ensures that they have no real ability to hold responsible companies accountable.

Police unions are part of the problem in American policing. Could police unions also be part of the solution? This Comment begins by putting into practice the dialectic we must achieve at a societal level by detailing the ways in which police and Black Americans have been positioned to be in conflict from the seventeenth century to the present, and by discussing the formation of police unions. American society needs truth-telling about the history and present context that drives police officers into deadly conflict with Black Americans to heal, trust, and effectuate a more perfect system for public safety. This Comment wrestles with the need to understand several truths at once: that police organized into unions in part to protect the rank-and-file from managerial abuse; that the American policing system is in many ways designed and implemented against Black Americans; that police unions organized in the Civil Rights Era to protect police officers from discipline for following orders; and that deep, structural change should include police unions. Less fundamental changes that leave in place the core of American policing, without examining its racist foundations and incentives toward brutality and lethal force, will not serve to bring about lasting reconciliation. This Comment reviews several ways to improve the management of police departments put forth by labor and policing scholars and suggests that the promise of such reforms could motivate participation in a truth process. The conversation about policing reform in the United States has expanded and deepened tremendously in the past year, and it continues to evolve and take on new dimensions. This Comment urges policymakers to create a truth process as part of police reform and suggests that the process be implemented via the police unions because the voices of police organizations that represent rank-and-file officers are a critical ingredient for meaningful change.