Many RATs use age-related factors as part of their assessment of risk.
Our research found over 190 jurisdictions using tools with factors related to age, linking younger ages to higher risk scores. Age can be found in items such as questions that ask for someone’s current age, as well as their age at first arrest.
Age at first arrest is a common metric, which illustrates police behavior in arresting a young person and does not take into account what happened after an arrest – such as if the charges were ultimately dropped. Age at first arrest does not consider how much time has passed since this initial arrest, or the social and political circumstances that may have lead certain groups to be arrested at disproportionate rates.
Youth counts against someone in other ways as well, hidden inside other factors. Not owning a home, being unemployed, or not holding advanced degrees may earn someone a higher risk score – all of which are common amongst young people.
Youth is often considered risky but what counts as “young” varies widely: the Public Safety Assessment (PSA) assigns a higher risk of new arrest for violence to people 20 or younger but a higher risk of new arrest overall to those 22 or younger. ORAS-PAT assigns higher risk scores to age at first arrest for people under 33. The CPAT has a sliding scale of increased risk: those over 35 receive 0 points, 25-34 receive 10 points, 20-24 receive 12 points, and 19 and younger receive 15 points. The Montgomery tool, used in jurisdictions across Maryland, counts being at least 50 years old as a mitigating factor that reduces risk.
Being young often counts against someone as heavily or even more heavily than their criminal history. For example, CPAT allocates 15 points to “Age at First Arrest” and only 10 points to having a “Past Prison Sentence.” The ORAS-PAT allocates “Age at First Arrest is 33 and younger” with the same number of points as “Three or more Prior Jail Incarcerations.” With the PSA, simply being 22 or younger gets the same amount of points towards new criminal activity as having three or more prior violent convictions.
Even more extreme: in results from COMPAS, “age alone can explain almost 60% of the variation”1Megan T. Stevenson and Christopher Slobogin: Algorithmic Risk Assessments and the Double-Edged Sword of Youth, Washington University Law Review and Vanderbilt Law in scores — more than race, gender, current charge, or even criminal history.
Plus, despite the fact that age is so heavily weighed, scores are not always transparent about how much of a high score is due to age alone.
One mistake in a person’s youth will follow them indefinitely when the overweighting of age in a risk calculation is embedded into an algorithm. Under these tools, a young person is inherently considered higher risk long before any encounter with the criminal legal system.
Youth is also criminalized even though the Supreme Court has stated that in juvenile cases youth should be a mitigating factor and that youths have lower responsibility than adults for criminal activity.2Barry C. Feld: Punishing Kids in Juvenile and Criminal Courts, University of Chicago Press Journals
Research has shown that young people are less able to consider long-term consequences of their actions.3Elizabeth S. Scott and Laurence. D. Steinberg: Rethinking Juvenile Justice, Harvard University Press Adolescents are less competent in decision-making, less able to use reasoning, and have lower levels of emotional and psychological development than adults, making them more impulsive and more likely to bend to peer influence.
All of this means that youth lack clear judgement and are more likely to make mistakes because of their immature cognitive abilities. However, placing them in a high-risk category based on their age automatically punishes them more harshly than adults with better reasoning skills.
The juvenile legal system was set up on the basis that young people are more amenable to treatment4Malcolm C. Young and Jenni Gainsborough: Prosecuting Juveniles in Adult Court: An Assessment of Trends and Consequences, The Sentencing Project and is meant to focus on supporting a young person’s needs. Indeed, therapeutic interventions have proven far more effective with youth populations than intensive discipline or punitive measures.5Susan Young, Ben Greer, and Richard Church: Juvenile delinquency, welfare, justice and therapeutic interventions: a global perspective, BJPsych Bulletin
Black people and other people of color are more likely to be arrested as youth, which makes age-related factors in pretrial RATs strongly linked to race.
Youth of color, especially Black youth, are vastly overrepresented in the juvenile legal system. The disproportionate presence of youth of color in the juvenile legal system “suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races.”6Kristin Henning: Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform, Cornell Law Review
Racial disparities follow youth throughout the entire legal process, from arrest onwards,7Kristin Henning: Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform, Cornell Law Review making youth a factor deeply correlated with race when included in RATs.
Youth of color are far more likely to be pulled into the legal system than white youth: Nationally in 2015, Black youth were 5 times as likely, Native American youth were 3.1 times as likely and Latinx youth were 1.6 times as likely as white youth to be incarcerated.8The W. Haywood Burns Institute for Justice Fairness & Equity: Unbalanced Youth Justice: Disparity Gap Incarceration Rate & About
Studies have shown that Black youth are disproportionately over-arrested, overrepresented in cases referred to juvenile court, disproportionately detained, more likely to be formally processed, and less likely to be placed on probation instead of incarcerated.9Christopher Hartney and Fabiana Silva: And Justice for Some: Differential Treatment of Youth of Color in the Justice System, National Council on Crime and Delinquency
Black youth and other youth of color are overrepresented in juvenile detention centers and adult prisons10Lincoln Anthony Blades: The Criminal Justice System Discriminates Against Children of Color, Teen Vogue all across the country.
Latinx youth are 43% more likely than white youth to be waived into the adult criminal legal system, and Black youth are 8.6 times more likely than their white peers to be sentenced to adult prisons.11Campaign for Youth Justice: Key Facts: Youth in the Justice System
This over-emphasis on age in risk assessment tools is the result of the increased criminalization of youth12Nancy A. Heitzeg: Education or Incarceration: Zero Tolerance Policies and the School to Prison Pipeline, Forum on Public Policy as young people, especially youth of color, have been caught up in mass incarceration. In the past 25 years, punishments for juveniles have become increasingly severe13Elizabeth S. Scott and Laurence. D. Steinberg: Rethinking Juvenile Justice, Harvard University Press as the courts have shifted towards punishment for youth instead of help and support.
Zero-tolerance policies and increased police presence in schools criminalize minor infractions and increase youth contact with the juvenile legal system.14Advancement Project, Education Law Center, FairTest, The Forum for Education and Democracy, Juvenile Law Center, & NAACP Legal Defense and Educational Fund, Inc: Federal Policy, ESEA Reauthorization, and the School-to-Prison Pipeline These policies build the school to prison pipeline, which disproportionately impacts youth of color.
Youth have been increasingly tried and punished as adults in a system of ever tougher laws for adolescents. Emphasizing age so heavily in risk assessments is another way of treating young people as dangerous criminals rather than serving their needs and of embedding racial bias.