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Christopher T Lowenkamp - One of the best experts on this subject based on the ideXlab platform.

  • risk race recidivism predictive bias and Disparate Impact
    Criminology, 2016
    Co-Authors: Jennifer L Skeem, Christopher T Lowenkamp
    Abstract:

    One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections. Although these instruments figure prominently in current reforms, critics argue that benefits in crime control will be offset by an adverse effect on racial minorities. Based on a sample of 34,794 federal offenders, we examine the relationships among race, risk assessment (the Post Conviction Risk Assessment [PCRA]), and future arrest. First, application of well-established principles of psychological science revealed little evidence of test bias for the PCRA — the instrument strongly predicts arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain higher average PCRA scores than White offenders (d= 0.34; 13.5% non-overlap in groups’ scores), so some applications could create Disparate Impact. Third, most (66%) of the racial difference in PCRA scores is attributable to criminal history — which is already embedded in sentencing guidelines. Finally, criminal history is not a proxy for race, but instead mediates the relationship between race and future arrest . Data are more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

Reva B Siegel - One of the best experts on this subject based on the ideXlab platform.

  • the constitutionalization of Disparate Impact court centered and popular pathways
    2019
    Co-Authors: Reva B Siegel
    Abstract:

    Responding to Owen Fiss’s call for the Court to recognize the constitutional status of the Griggs principle, I question court-centered accounts of constitutional change and examine the constitutional development of Disparate Impact law inside and outside of the courts. To illustrate the important role that democratic actors have played in shaping the development of Disparate Impact law, I sample conflict over Disparate Impact standards across all three branches of the federal government since the 1970s, from the Burger Court to the Roberts Court, in Congress, and in the Reagan, Obama, and Trump administrations. Examining Disparate Impact’s history reminds us that on numerous occasions, Congress has proven more willing than the Court to protect minority rights. Further, this account shows that constitutionalization of Disparate Impact could take forms that Fiss does not anticipate, given conservative opposition to the use of Disparate Impact standards to combat race discrimination (as distinct from discrimination on the basis of religion or disability). Fiss argues that a Court in the coming decades could interpret the Equal Protection Clause to require judges to review the racially Disparate Impact of state action. The history I consider suggests that constitutionalization might instead take the form of a Court interpreting the Equal Protection Clause to prohibit or limit federal laws mandating such review — a prospect that grows with the shifting composition of the Court and growing hostility to Disparate Impact in the Trump administration. This Comment makes the case for a dialogic understanding of our constitutional law primarily on grounds of descriptive accuracy. Situating the Court’s work in dialogue with democratic actors supplies a better understanding of how our law has evolved and is likely to evolve in the coming decades. But I close by offering a brief, normative account that suggests why conflict strengthens our constitutional law. When properly constrained, constitutional conflict can give democratic authority and direction to constitutional law.

  • The Constitutionalization of Disparate Impact — Court-Centered and Popular Pathways
    2019
    Co-Authors: Reva B Siegel
    Abstract:

    Responding to Owen Fiss’s call for the Court to recognize the constitutional status of the Griggs principle, I question court-centered accounts of constitutional change and examine the constitutional development of Disparate Impact law inside and outside of the courts. To illustrate the important role that democratic actors have played in shaping the development of Disparate Impact law, I sample conflict over Disparate Impact standards across all three branches of the federal government since the 1970s, from the Burger Court to the Roberts Court, in Congress, and in the Reagan, Obama, and Trump administrations. Examining Disparate Impact’s history reminds us that on numerous occasions, Congress has proven more willing than the Court to protect minority rights. Further, this account shows that constitutionalization of Disparate Impact could take forms that Fiss does not anticipate, given conservative opposition to the use of Disparate Impact standards to combat race discrimination (as distinct from discrimination on the basis of religion or disability). Fiss argues that a Court in the coming decades could interpret the Equal Protection Clause to require judges to review the racially Disparate Impact of state action. The history I consider suggests that constitutionalization might instead take the form of a Court interpreting the Equal Protection Clause to prohibit or limit federal laws mandating such review — a prospect that grows with the shifting composition of the Court and growing hostility to Disparate Impact in the Trump administration. This Comment makes the case for a dialogic understanding of our constitutional law primarily on grounds of descriptive accuracy. Situating the Court’s work in dialogue with democratic actors supplies a better understanding of how our law has evolved and is likely to evolve in the coming decades. But I close by offering a brief, normative account that suggests why conflict strengthens our constitutional law. When properly constrained, constitutional conflict can give democratic authority and direction to constitutional law.

  • race conscious but race neutral the constitutionality of Disparate Impact in the roberts court
    2014
    Co-Authors: Reva B Siegel
    Abstract:

    Ricci v. DeStefano, the New Haven firefighters case, raised questions about the constitutionality of the Disparate Impact provisions of federal employment discrimination law. This Article draws on the Court’s subsequent decision in Fisher v. University of Texas at Austin to clarify Disparate Impact’s constitutionality. In Fisher, no Justice expressed concern about Texas’s decision to promote diversity at the state university by admitting the top percent of the state’s high school graduates — state action that is race-conscious in purpose, but race-neutral in form. Approval of the percent plan in Fisher shows that under equal protection law of the Roberts Court Disparate Impact law is not unconstitutional in purpose, as Justice Scalia suggested in Ricci. In Fisher, the Court has demonstrated that government may change the selection standards in competitive processes without triggering strict scrutiny if the government acts (1) with a race-conscious goal of promoting equal opportunity; (2) the government requires a selection standard that is appropriate for the context; and (3) the standard does not classify individuals by race. These principles are satisfied in the ordinary case of voluntary Disparate Impact compliance in which an employer specifies conditions for employment in advance of evaluating applicants for the job in question, as well as in prospective remedies that courts ordinarily order for violations of Title VII.Fisher clarifies that the problem in Ricci was New Haven’s procedurally irregular means of complying with Disparate Impact law: the government discarded the test results of a group of applicants who had invested significant time in studying for a promotion exam, and explained this decision in terms which left the disappointed applicants with the impression that government was discarding their scores to advance the interests of another racially defined group. By avoiding a constitutional judgment and finding New Haven’s manner of complying with the statute unlawful Disparate treatment, Justice Kennedy warns that interventions designed to heal social division should be implemented in ways that endeavor not to aggravate social division.Disparate Impact law can promote equal opportunity, increase employee confidence in the fairness of selection criteria, and so reduce racial balkanization; but for Disparate Impact law to do so, Justice Kennedy seems to be saying in Ricci, Disparate Impact law needs to be enforced with attention to all employees’ expectations of fair dealing.

Jennifer L Skeem - One of the best experts on this subject based on the ideXlab platform.

  • risk race recidivism predictive bias and Disparate Impact
    Criminology, 2016
    Co-Authors: Jennifer L Skeem, Christopher T Lowenkamp
    Abstract:

    One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections. Although these instruments figure prominently in current reforms, critics argue that benefits in crime control will be offset by an adverse effect on racial minorities. Based on a sample of 34,794 federal offenders, we examine the relationships among race, risk assessment (the Post Conviction Risk Assessment [PCRA]), and future arrest. First, application of well-established principles of psychological science revealed little evidence of test bias for the PCRA — the instrument strongly predicts arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain higher average PCRA scores than White offenders (d= 0.34; 13.5% non-overlap in groups’ scores), so some applications could create Disparate Impact. Third, most (66%) of the racial difference in PCRA scores is attributable to criminal history — which is already embedded in sentencing guidelines. Finally, criminal history is not a proxy for race, but instead mediates the relationship between race and future arrest . Data are more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

Kevin Fosnacht - One of the best experts on this subject based on the ideXlab platform.

Robert N Roberts - One of the best experts on this subject based on the ideXlab platform.

  • damned if you do and damned if you don t title vii and public employee promotion Disparate treatment and Disparate Impact litigation
    Public Administration Review, 2010
    Co-Authors: Robert N Roberts
    Abstract:

    What has been the Impact of the U.S. Supreme Court’s 2009 decision in Ricci v. Destefano on the selection and promotion practices of public employers?; Relying solely on circumstantial evidence, the Supreme Court held that the Civil Service Board of New Haven, Connecticut, had engaged in Title VII Disparate treatment discrimination by refusing to certify the results of a promotion examination that led, in turn, to a Disparate Impact on African American firefighters. To limit the discretion of public employers to disregard such selection and promotion exam results, the Ricci majority held that a public employer must “have a strong basis in evidence to believe it will be subject to Disparate-Impact liability if it fails to the take the race-conscious discriminatory action.” This article argues that the decision effectively prohibits public employers from rejecting the results of selection and promotion instruments, even though there is evidence that screening instruments inequitably affect protected groups. It also forces public employers to become more careful in developing selection and promotion examinations or face the possibility of costly Title VII litigation.