Former New Jersey Attorney General, Anne Milgram (D) has been working for the Laura and John Arnold Foundation to better predict risk of reoffending in a criminal justice context. Ms. Milgram first got attention when a story about her and her work appeared in the Nov. 2013 edition of the ABA Journal. Ex-NJ attorney general works to reform the pretrial process with a Texas foundation’s backing. Recently, Milgram unveiled her work in a TED lecture, Why smart statistics are the key to fighting crime. Applying what she calls “moneyball” to criminal justice, rather than creating a strict “redemption period” as noted by Profs. Blumstein and Nakamara, Milgram build a risk assessment tool to enable judges to determine
whether, when someone has been arrested, whether they pose a risk to public safety and should be detained, or whether they don’t pose a risk to public safety and should be released. Everything that happens in criminal cases comes out of this one decision. It impacts everything. It impacts sentencing. It impacts whether someone gets drug treatment. It impacts crime and violence.
The Laura and John Arnold Foundation is, according to the ABA article
a small, private philanthropic group established in 2008 by Houston hedge fund billionaire John Arnold and his lawyer wife, Laura, to promote advances in critical areas like education, medicine and law.
Milgram’s initial mission: “To look at the entire criminal justice system and identify the areas with the greatest need and the greatest opportunity for reform and structural change.”
As noted in the ABA Journal, two years of research in to a top-to-bottom review of the American criminal justice system, allowed Milgram and her “five-person team” to
home in on a defined target: the pretrial process. This stage of the justice system, Milgram says, contains two basic system errors. The first is that a large number of low-level, nonviolent offenders remain incarcerated despite the likelihood that, if released, they’d return to court when required and would not re-offend. The second is that high-risk, violent offenders are getting released.
This team “developed a Web-based tool called the public safety assessment to assist courts in the pretrial determination of whether a defendant stays in jail or gets released from custody.” In the TED lecture, Milgram notes that
we collected 1.5 million cases from all around the United States, from cities, from counties, from every single state in the country, the federal districts. And with those 1.5 million cases, which is the largest data set on pretrial in the United States today, we were able to basically find that there were 900-plus risk factors that we could look at to try to figure out what mattered most. And we found that there were nine specific things that mattered all across the country and that were the most highly predictive of risk. And so we built a universal risk assessment tool. . . It focuses on things like the defendant’s prior convictions, whether they’ve been sentenced to incarceration, whether they’ve engaged in violence before, whether they’ve even failed to come back to court. And with this tool, we can predict three things. First, whether or not someone will commit a new crime if they’re released. Second, for the first time, and I think this is incredibly important, we can predict whether someone will commit an act of violence if they’re released. And that’s the single most important thing that judges say when you talk to them. And third, we can predict whether someone will come back to court.
Milgram adds in her lecture that detention decisions should not remove a “judge’s instinct and experience”, but subjectivity results in
incredible system errors, where we’re incarcerating low-level, nonviolent people and we’re releasing high-risk, dangerous people, is that we don’t have an objective measure of risk. But what I believe should happen is that we should take that data-driven risk assessment and combine that with the judge’s instinct and experience to lead us to better decision making. The tool went statewide in Kentucky on July 1, and we’re about to go up in a number of other U.S. jurisdictions. Our goal, quite simply, is that every single judge in the United States will use a data-driven risk tool within the next five years. We’re now working on risk tools for prosecutors and for police officers as well, to try to take a system that runs today in America the same way it did 50 years ago, based on instinct and experience, and make it into one that runs on data and analytics.
Milgram’s work was recently featured in an NCSL article, Predicting pretrial success.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More