The NPR Politics Podcast - Racial-Bias Issues Plague Justice Department Early-Release Program

Episode Date: February 2, 2022

Civil rights advocates say an algorithm at the heart the First Step Act, the 2018 bipartisan criminal justice reform law, should be overhauled or scrapped. Also: Kenneth Polite, a Black man who lost a sibling to gun violence is heading the Justice Department's criminal prosecution division.This episode: White House correspondent Asma Khalid, White House correspondent Franco Ordoñez, and national justice correspondent Carrie Johnson.Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, NPR Politics podcast listeners. This is Courtney, and I have just finished my very last sunrise morning run on the Holloman Air Force Base here in New Mexico, where I've just spent the last three months working on Operation Allies Welcome to help Afghan refugees get resettled. This podcast was recorded at 1.06 p.m. Eastern Time on Tuesday, February 1st. Things may have changed since the time that you've heard this, but I know for a fact that thousands of Afghan families will have been resettled across the country into their new homes, hopefully with arms open wide to welcome them. All right, here's the show. Oh, that is a big job. Big, big job. Hey there, it's the NPR Politics Podcast. I'm Asma Khalid. I cover the White House.

I'm Franco Ordonez. I also cover the White House. And I'm Carrie Johnson, national justice correspondent. And today on the show, we're going to talk about some recent newsy developments out of the Justice Department. Back in 2018, Congress passed the First Step Act, a criminal justice reform law that was signed into law by former President Donald Trump. This law was supposed to help people secure early release from federal prison. But so far, there have been big racial disparities in how the Justice Department is deciding who to let out. So let's just start

there. Carrie, you have done reporting on this. So what is the tool that was created by the First Step Act to make these decisions? Yeah, sure. This tool is called Pattern. It's an algorithm that was created by some outside consultants in connection with the Justice Department. And there have been problems since the beginning, in part because when Congress passed this law, they gave DOJ a very short window of time to create this tool. Part of that time overlapped with the government shutdown, we all remember. And the consultants decided to take into account some methods the Federal Bureau of Prisons had already been using to rate the risk of recidivism of people in federal prison. So there were problems from the get-go, terrible problems,

like just basic human errors and math problems, the kind that I would do. Except the point here is that people's liberty was at stake. The Congress tied the ability to take programs and get credits to get out of prison early to this algorithm called Pattern. And only people who were rated a low or a minimum risk would be allowed to take these programs and get credit. So it made a big difference in the daily lives of a lot of people in prison. So Carrie, when you say that this algorithm was looking at rates of recidivism, are you suggesting that the factors that it was considering are not necessarily unbiased in and of themselves?

Well, this was very complicated, right? At the start, they tried to take into account a number of things like criminal history and level of education and the fact of whether somebody had paid restitution to their victims. And social scientists tell me that a lot of those things are subject to racial bias from the get-go, in part because, as we know, certain communities around the country are over-policed. Black and brown people often are over-policed. It rates much higher than white people for marijuana arrests and other kinds of drug-related crimes, among other offenses. And even though the Justice Department tried to fix this tool once and then twice, it still didn't work. On top of that, they adjusted people wrong. So we now know,

according to the Justice Department's own data, something like 14,000 people in prison were put into the wrong risk category. So they've got to be reevaluated. This has just been a mess, really. Carrie, I mean, who can you say that is responsible for these problems? I mean, I just remember, you know, this passing in 2018, and then President Trump running on it in the election, you know, he really touted this in his effort to kind of bring in African American voters, minority voters. I mean, were those kind of like false promises that he ran on? Well, you know, the First Step Act was a significant piece of legislation to deal with people involved in the justice system. Parts of the law made it easier for people to get a lighter sentence going into prison or to win compassionate release if they were in prison. But the second

part of the bill, letting people out of prison early, was always adjusted or pinned to this pattern algorithm. And people like the ACLU, Amra Hachman at the ACLU, say they've been worried about this tool right from the start. From the beginning, civil rights groups cautioned Congress and the Justice Department that use of a risk assessment tool to make these determinations would lead to racial disparities. And they have. Akhman told me that the most recent DOJ data that she saw suggests that of the people who are rated minimum risk eligible for this kind of early release, 7% were black and 21% were white. And that just doesn't seem right or fair. I mean, those numbers, 7% seems like some obvious problems.

I'm just curious, though. I mean, what kind of system do they want? If they don't use pattern or the algorithm, what's the alternative? Yeah, Franco, that's such a good question. And I pose that question to Melissa Hamilton, who studies risk assessments at the University of Surrey. Melissa Hamilton is a really interesting person in part because earlier in her life, she was actually a police officer before she went to law school and then became an academic. And she basically said she thinks that this tool may be

worth saving. She said, consider the alternative. So that's the unfortunate thing is it's better than gut instinct of very flawed humans that we all are. And can we improve it more than marginally? And that's what we're working on. Melissa Hamilton says there are fundamental flaws in the way this tool is working now, but she thinks it can be made better and that it will be made better. So what is the Justice Department saying about this? Are they working to improve the tool? Yeah, they're aware of these racial disparities. They say they're concerned about them. Attorney General Merrick Garland has a team in place to evaluate all this and to try to make this whole process more transparent. But this is going to take a long time, guys. And you know what? The lives of

people in prison are at stake here, in part because, you know, we have the pandemic raging. It's had a disproportionate effect on people in facilities like prisons. And so advocates are really pushing DOJ to act quickly here. All right. Well, we are going to take a quick break. We'll have more DOJ news to talk about in just a moment. And we're back. And Carrie, you have also recently profiled Kenneth Polite. He's the new head of the Justice Department's Criminal Division. And before we get into who he is, I want you to just explain to us what the role is that he is taking on. Yeah, this is a huge job. Even I didn't realize, I've been covering the building for so long, the head of the criminal division manages 1,200 people all around the world. So that includes the corporate fraud prosecutors, that includes

the public corruption prosecutors around the U.S., and it includes people all over the world who go after drug cartels and international hostage-taking involving Americans and all kinds of other really important cases. So, Carrie, the story that you reported about Mr. Polite says that he comes from a family of law enforcement types, but he's got an unusual life story. I mean, unusual compared to many other DOJ attorneys. His brother was shot and killed. And Carrie, I'm curious what he told you about how these life experiences have affected his career.

Yeah, his dad was a 37-year veteran of the New Orleans police force. His brother is a current officer in Houston, and his half-brother died in an act of gun violence in New Orleans in 2004, what appears to be an act of retaliation. And Polite told me he thinks of his half-brother every day and that it shaped how he approaches issues of crime and justice. My view from the very earliest days of contemplating becoming a prosecutor, wasn't to put people in jail. That's a byproduct of it, but it was frankly to try to save lives and to prevent other individuals and other families from having the same experience. Kerry, that quote to me just really, really resonated. I mean, just thinking back, and you'd

know better than I would, but the traditional roles of prosecutors so often as, you know, be tough, look tough, act tough. And he really seems to be taking or took and taking a very different approach. Is that is that right? I mean, how does he how does he balance that? Yeah, he he says it's not so much of a balance. He he kind of thinks that some of the debates that are happening in Congress in the streets of the country are a little bit simplistic or reductionist. You know, he has these law enforcement officers in his family, but he's perfectly willing to go after cops who break the law. He says that good cops out there want to get bad cops off the street. And with respect to crime, he says he's trying to keep survivors of crime in mind and that he doesn't want anyone else, another family to go through the experience

that his family did. And that informs some of the strategies that he's using and the Justice Department now is using to fight some of the gun violence around the country to not just bring ATF and FBI agents on the streets and work with local law enforcement, but also try to spend money to fund violence prevention programs and social services programs around the country. Carrie, I don't know if you were able to ask him about this, but Republicans have really, you know, accused or pushed on President Biden and blamed him for some of the increase in violence. Does he have an opinion on some of that violence increases in some cities? And what does he think of what Republicans are accusing the Biden administration of? That issue did not come up in my interview. But of course, Franco, you know that gun crime in particular has been a severe

problem since 2020, that the number of homicides in many places around the country are too high, shootings too high. But according to criminal justice researchers and data crunchers, some of those incidents rose in places with Democratic mayors and governors, and others rose in places with Republican mayors and governors. So it's too easy to say that one party has figured out how to handle and contain gun crime. It's a much more complicated picture. And of course, the U.S. Justice Department doesn't prosecute most street crime.

That's the job of state and local prosecutors. And those people are the partners of the Justice Department and people like Kenneth Polite and Attorney General Merrick Garland. But those federal officials are not on the ground every day. So, Carrie, it sounds like from what you had been saying, though, earlier, violent crime is certainly at the top of his agenda. I'm curious, what are some of his other top priorities in this new job? Yeah, he's really interested in cybercrime and ransomware issues that have been plaguing the country and really the world for the last few years. He's also really interested in beefing up prosecutions of companies that break the law. And he didn't mention this, but you know, there are a number of ongoing investigations of public officials, people like Florida Congressman Matt Gaetz,

Republican, and others. No charges have been brought there yet. But we know simmering under the surface are a number of investigations of public officials, not just here in Washington, but around the country. And Carrie, can I just ask you one other thing from your story that I found so interesting? The case where he was prosecuting a defendant, and the defendant actually stood up and thanked him, the prosecutor who was prosecuting him, and then actually asked him to mentor his son? I mean, did that, how does that kind of, you just don't hear that kind of thing very often. No, you don't. And in part, Polite said it's because New Orleans is a small place. And in part, he says it's because he's always viewed his role as a community problem

solver. This episode happened when he was the U.S. attorney in New Orleans in the Obama years, and he showed up for a sentencing, a mandatory life sentencing, of some men who were involved in drug trafficking and some homicides. And one of the defendants stood up and thanked Polite, asked him to serve as a mentor to this man's son. It turned out, Polite learned later, that the two families had attended the same church and his older daughter, Polite's older daughter, had been mentoring this man's son sometimes in the Polite family home. So that just goes to show that, you know, the world is small and that sometimes are these kind of categories that we think in terms of prosecutor, defendant.

His life experience is so rich that it transcends some of these boundaries. Yeah, for sure. All right. Well, we will leave it there for today. Kerry, thank you for doing so much of the heavy lifting on the news today. We really appreciate those. Those were both really interesting stories, and I encourage folks who may have not heard the full reports to actually go check them out online on NPR.org.

I'm Asma Khalid. I cover the White House. I'm Frank Ordonez. I also cover the White House. And I'm Carrie Johnson, national justice correspondent. And thank you all, as always, for listening to the NPR Politics Podcast.