While there's been a lot of focus on how risk assessment tools treat different racial demographics, little attention has been paid to another issue that may be just as problematic: how gender factors into risk scores. Researchers say accounting for the differences in gender ensures that risk assessments are more accurate, but exactly how they do so may run into constitutional challenges.

Legaltech News found one gender-specific risk assessment tool currently implemented in at least two states: the Women's Risk and Needs Assessment (WRNA), which like the the Ohio Risk Assessment System (ORAS), was created by the University of Cincinnati. Kansas uses the WRNA to assess parolees' risk in a women's prison in Topeka, while Montana deploys it for women on probation or parole throughout its Department of Corrections.

Amy Barton, a spokesperson for Montana Department of Corrections, explains that while the WRNA uses gender-neutral risk factors, it also looks at more "gender-responsive factors," including "relationship support and conflict, parental involvement and stress, self-efficacy, prior physical and sexual trauma, housing safety, mental health and anger/hostility."

The reason WRNA is needed in the first place is because most risk assessment instruments are validated (i.e. created) on a population that is majority male, in large part due to current gender imbalance in the criminal justice system (i.e. more men than women commit crimes and become incarcerated).

Dr. Teresa May, department director of the Community Supervision & Corrections Department in Harris County, Texas, also notes that on a whole, men have higher recidivism risk than women. "What we know is when you look at gender, almost always—and in fact I don't know of an exception—the average rearrest rate [for women] is always much lower than men."

Without accounting for these differences, a risk assessment could end up scoring women as higher risk than they actually are.

To be sure, there are other ways to account for gender differences in risk scores without using a gender-specific tool. Some tools, for example, such as Oregon's Public Safety Checklist (PSC) and Pennsylvania's Sentence Risk Assessment Instrument, use gender as a risk factor, essentially assigning men higher potential risk scores than women.

Jurisdictions can also have separate risk level cutoff scores for men and women. May notes with that when Texas implemented the Ohio Risk Assessment System (ORAS) in its criminal justice system, it "used separate cut points to make sure women are not being overclassified—that is, [assigned] higher risk than they really were."

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Legal Battles

There's an ongoing debate over whether using  gender as a risk factor, or assigning different cutoff risk levels to both males and females, violates the 14th Amendment. "Basically the Supreme Court of the U.S. has pursued what's called an anti-classification approach to the equal protection law, which prohibits explicit use of factors like gender and race in making decisions," says Christopher Slobogin, professor of law at the Vanderbilt University Law School.

He adds, "It is permissible, constitutionally, to use race or gender if there is a compelling state interest in doing so. But generally speaking, the use of race and gender is unconstitutional to discriminate between groups."

However, in Slobogin's own opinion, he does not think the "Constitution is violated simply because a risk assessment arrives at different results for similarly situated men and women." He argues that a tool that uses gender as a risk factor and one that has different cutoff scores for genders are functionally the same, adding in those adjustments makes the instruments more accurate.

But others see it differently. Sonja Starr, professor of law at the University of Michigan Law School, for example, recently told the Philadelphia Inquirer that "use of gender as a risk factor plainly violates the Constitution." 

Still, constitutional challenges against risk assessment tools in court have yet to materialize. But Slobogin, noting the amount of risk assessment tools used in sentencing, believes it's only a matter of time. "I think right now, there are some cases brewing."

There has been at least one case on the state level that addressed the legality of using gender in risk assessment. In Wisconsin v. Loomis, the Wisconsin Supreme Court ruled that the use of gender by Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool does not violate a defendant's due process right. Specifically, the court noted, "The inclusion of gender promotes accuracy, it serves the interests of institutions and defendants, rather than a discriminatory purpose."

Whether the use of gender in risk assessment tools violate other states' laws is still to be determined. Slobogin notes that states like Arkansas, Florida, Ohio and Tennessee "have statutes that prohibit sentencing on gender," among other factors.

However, "on the other hand, these statues often say something like, the state must be neutral in using gender… and I could read that to mean so long as the instruments are accurate with respect to how women or men are treated, then that's a neutral treatment," he adds.