Many RATs also include the severity of the charge someone is arrested for as a factor to predict risk. Our research found current charges as a factor in 33 of the 53 distinct risk assessment tools in our database.
Charges can be heavily weighted against an accused person, especially if someone is charged with an offense that is classified as “violent.” It is important to note that RATs assume charges for violent offenses, especially allegations of injury, are true in their calculation of risk. This assumption flies in the face of a person’s presumption of innocence before a trial.
Charges are also often used in conjunction with risk score in a decision-making framework to recommend specific pretrial outcomes, meaning in some cases the charge may be counted against someone twice.
However, it is important to note that the charges are simply an accusation. The accused person generally does not have a chance to dispute the charges before such charges are factored into a RAT, and they can ratchet up a risk score against someone who is legally innocent.
Charges also reflect the choice of a prosecutor in pursuing a case.
Prosecutors have a lot of power in determining the path of an accused person through the criminal legal system. They get to determine what charges to bring against an accused person or whether or not charges are filed at all.
Prosecutors can decide to only press minor misdemeanor charges or more serious felony charges for the same behavior, and even to “stack” charges1Sunita Sah, Christopher T. Robertson, and Shima B. Baughman: Blinding prosecutors to defendants’ race: A policy proposal to reduce unconscious bias in the criminal justice system, Behavioral Science & Policy by charging someone for many different crimes within the same arrest, far above the number or type of charges a prosecutor expects to actually result in a conviction. The power to determine charge severity is especially important if prosecutorial discretion is the difference between a charge that includes violence or allegations of injury and a non-violent charge.
A study in San Francisco found that under the PSA, overbooking on charges that did not result in an actual conviction increased the PSA’s recommended pretrial supervision level in 27% of cases.2Kristian Lum, Chesa Boudin, and Megan Price: The impact of overbooking on a pre-trial risk assessment tool, arXiv.org This means that the practice of stacking unsubstantiated charges is leading to increased levels of wholly unnecessary pretrial supervision.
Studies show that the race of the accused person can matter in these decisions about the severity of charges.3Besiki Kutateladze, Vanessa Lynn, and Edward Liang: Do Race and Ethnicity Matter in Prosecution? A Review of Empirical Studies, Vera Institute of Justice
Black men especially “receive disproportionately harsher treatment at each stage of the prosecutorial decision-making process.”4Sunita Sah, Christopher T. Robertson, and Shima B. Baughman: Blinding prosecutors to defendants’ race: A policy proposal to reduce unconscious bias in the criminal justice system, Behavioral Science & Policy
One study found that how the prosecutor chooses to press charges, especially for charges with a mandatory minimum sentence, varies by race and has a huge impact on ultimate sentencing and jail time. Black men are 1.75 times more likely than others to be faced with charges that carry a mandatory minimum.5Sonja B. Starr and M. Marit Rehavi: Racial Disparities in Federal Criminal Sentences, University of Michigan Law School
Another study found that in Wisconsin, white individuals were 25% more likely to have their charges dropped or reduced than Black individuals.6Carlos Berdejó: Criminalizing Race: Racial Disparities in Plea Bargaining, Boston College Law Review and Loyola Law School, Los Angeles Legal Studies Research Paper
A San Francisco study found that Black individuals are less likely to have cases dropped or dismissed and more likely to have felony charges filed against them than other groups.7John MacDonald and Steven Raphael: An Analysis of Racial and Ethnic Disparities in Case Dispositions and Sentencing Outcomes for Criminal Cases Presented to and Processed by the Office of the San Francisco District Attorney, University of Pennsylvania Department of Criminology and University of California, Berkeley Goldman School of Public Policy
Black youth are also disproportionately likely to be formally charged, referred to court, and charged as adults.8Christopher Hartney and Fabiana Silva: And Justice for Some: Differential Treatment of Youth of Color in the Justice System, National Council on Crime and Delinquency