As the world’s biggest jailer, the U.S. is now desperately trying to figure out ways to reduce the inmate population to cut down on the $74 billion the nation reportedly spends every year on prisons. But as the federal government and more states consider utilizing secretive questionnaires to decide who should be released on parole and even how long sentences should be, many people inside and outside of the criminal justice system are concerned that the questionnaires are unreliable and may unfairly punish inmates and defendants for being Black and poor.
These questionnaires, used in states like Texas, California, Florida and Arkansas, ask defendants more than 100 questions in some cases, all with the intent of figuring out how likely this person is to commit more crimes, according to a lengthy report on the use of the surveys by the Associated Press. The AP said the questionnaires are often “clouded in secrecy” so that government officials can protect themselves from being deemed responsible if a defendant commits a heinous crime after being let out on parole.
The questions probe areas like a defendant’s education, family, income, job status, history of moving, parents’ arrest history, or whether he or she has a phone. Each answer has a score attached to it, with the total score used to determine a defendant’s fate. As some critics told the AP, the scoring system winds up punishing people for being poor or uneducated by attaching a lower risk to those with steady work and high levels of education.
The system can be especially harsh in its treatment of Black defendants because many of them are going back to families that may still live in neighborhoods where there is a significant criminal element. As more than a third of the nation’s incarcerated are Black, widespread use of such surveys could have serious implications for the Black community.
These are some of the questions listed on the survey used in Michigan: In the last 12 months before this incarceration, how often did you move? Was one of your parents (or parent figure who raised you) ever sent to jail or prison? In the last couple of years before this incarceration, how many of your friends/acquaintances had ever been arrested?
The system hopes to use these methods to save money by freeing up parole and probation officers to focus on the defendants who have a higher risk of reoffending.
“It is a vast improvement over the decision-making process of 20, 30 years ago when parole boards and the courts didn’t have any statistical information to base their decisions on,” said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts, which is working with the U.S. Justice Department on changes to the prison system.
Legislation has been introduced in Congress to start using the surveys in the federal prison system. But at the same time, Attorney General Eric Holder has spoken out against judges using such survey data for sentencing.
“Basing a sentence on something other than the conduct of the person involved and the person’s record, you’re looking, for instance, at factors like the person’s education level, what neighborhood the person comes from,” Holder said. “They’re using this as a predictor of how likely this person as an individual is going to be a recidivist. I’m not at all certain that I’m comfortable with that … I think the result is fundamental unfairness.”
Nazgol Ghandnoosh, a research analyst for the Sentencing Project, an organization dedicated to sentencing reform in U.S. prisons, told Al Jazeera America that research has shown Black and brown defendants who don’t have regular jobs or steady families are likely to be charged with more severe crimes, leading to longer prison sentences.
“A lot of the criteria to measure risk has to do with disparities in race and class to the extent that we’re looking at data factors like employment or level of education or marital status and family resources … things someone is not able to change,” Ghandnoosh said. “We are creating a two-tiered system of sentencing.”
But though the Justice Department has cautioned those in the system not to rely too heavily on the surveys, jurisdictions want to use them to save millions of dollars in prison costs. For example, the AP pointed out that North Carolina could save $560 million by 2017, according to a Justice Department report.
Sonja B. Starr, a University of Michigan law professor who has studied the surveys, told the AP they could wind up punishing people for being poor.
“They are about the defendant’s family, the defendant’s demographics, about socio-economic factors the defendant presumably would change if he could: Employment, stability, poverty,” Starr said. “It’s basically an explicit embrace of the state saying we should sentence people differently based on poverty.”
The surveys also have another severe downside: Sometimes they are wrong. And sometimes people lie when answering them.
The AP related the story of Darren Vann, who did some time in prison a decade ago after dousing his ex-girlfriend with gasoline and threatening to light her on fire. Four years later, Vann was back in jail again after raping a woman in Austin. But after completing his sentence in 2013, Vann got an extremely low score on the 10-question survey assessing his likelihood to commit another sex crime—he got a 1 on a scale from 1 to 6, which supposedly meant there was just a 3.8 percent chance he would commit a future sex crime in the next five years.
Vann lied and said he had never committed a sex crime previously. His previous offense didn’t appear in the system. A year later, not only did he kill a 19-year-old girl he found through an online escort ad, but he also confessed to killing six other women, whose bodies he left in abandoned homes around Gary, Ind.
But Sean Hosman, founder of, a company that created the survey used in Florida, said they are an improvement over past practices and help defendants get a fair shot.
“Too often,” Hosman told AP, “we would do a gut check or you’d use intuition … or assess them based on the color of their skin, or the fact that we knew their brother and they went through here before.”
“We know that our prisons are overcrowded, and pretty much everyone agrees that recidivism, the percentage in which people repeat crimes, is way too high,” said U.S. Sen. John Cornyn, R-Texas, who along with Sen. Sheldon Whitehouse, a Rhode Island Democrat, reintroduced legislation this month that would require the use of a risk assessment tool in the federal prison system.
“We can’t simply incarcerate our way to public safety,” Whitehouse said. “We have to be smart.”