But judges have cited scores in their sentencing decisions. In August 2013, Judge Scott Horne in La Crosse County, Wisconsin, declared that defendant Eric Loomis had been "identified, through the COMPAS assessment, as an individual who is at high risk to the community." The judge then imposed a sentence of eight years and six months in prison.
Loomis, who was charged with driving a stolen vehicle and fleeing from police, is challenging the use of the score at sentencing as a violation of his due process rights. The state has defended Horne's use of the score with the argument that judges can consider the score in addition to other factors. It has also stopped including scores in presentencing reports until the state Supreme Court decides the case.
"The risk score alone should not determine the sentence of an offender," Wisconsin Assistant Attorney General Christine Remington said last month during state Supreme Court arguments in the Loomis case. "We don't want courts to say, this person in front of me is a 10 on COMPAS as far as risk, and therefore I'm going to give him the maximum sentence."
That is almost exactly what happened to Zilly, the 48-year-old construction worker sent to prison for stealing a push lawnmower and some tools he intended to sell for parts. Zilly has long struggled with a meth habit. In 2012, he had been working toward recovery with the help of a Christian pastor when he relapsed and committed the thefts.
After Zilly was scored as a high risk for violent recidivism and sent to prison, a public defender appealed the sentence and called the score's creator, Brennan, as a witness.
Brennan testified that he didn't design his software to be used in sentencing. "I wanted to stay away from the courts," Brennan said, explaining that his focus was on reducing crime rather than punishment. "But as time went on I started realizing that so many decisions are made, you know, in the courts. So I gradually softened on whether this could be used in the courts or not."
Still, Brennan testified, "I don't like the idea myself of COMPAS being the sole evidence that a decision would be based upon."
After Brennan's testimony, Judge Babler reduced Zilly's sentence, from two years in prison to 18 months. "Had I not had the COMPAS, I believe it would likely be that I would have given one year, six months," the judge said at an appeals hearing on Nov. 14, 2013.
Zilly said the score didn't take into account all the changes he was making in his life — his conversion to Christianity, his struggle to quit using drugs and his efforts to be more available for his son. "Not that I'm innocent, but I just believe people do change."
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Florida's Broward County, where Brisha Borden stole the Huffy bike and was scored as high risk, does not use risk assessments in sentencing. "We don't think the [risk assessment] factors have any bearing on a sentence," said David Scharf, executive director of community programs for the Broward County Sheriff's Office in Fort Lauderdale.
Broward County has, however, adopted the score in pretrial hearings, in the hope of addressing jail overcrowding. A court-appointed monitor has overseen Broward County's jails since 1994 as a result of the settlement of a lawsuit brought by inmates in the 1970s. Even now, years later, the Broward County jail system is often more than 85 percent full, Scharf said.
In 2008, the sheriff's office decided that instead of building another jail, it would begin using Northpointe's risk scores to help identify which defendants were low risk enough to be released on bail pending trial. Since then, nearly everyone arrested in Broward has been scored soon after being booked. (People charged with murder and other capital crimes are not scored because they are not eligible for pretrial release.)
The scores are provided to the judges who decide which defendants can be released from jail. "My feeling is that if they don't need them to be in jail, let's get them out of there," Scharf said.
Scharf said the county chose Northpointe's software over other tools because it was easy to use and produced "simple yet effective charts and graphs for judicial review." He said the system costs about $22,000 a year.
In 2010, researchers at Florida State University examined the use of Northpointe's system in Broward County over a 12-month period and concluded that its predictive accuracy was "equivalent" in assessing defendants of different races. Like others, they did not examine whether different races were classified differently as low or high risk.
Scharf said the county would review ProPublica's findings. "We'll really look at them up close," he said.
Broward County Judge John Hurley, who oversees most of the pretrial release hearings, said the scores were helpful when he was a new judge, but now that he has experience he prefers to rely on his own judgment. "I haven't relied on COMPAS in a couple years," he said.
Hurley said he relies on factors including a person's prior criminal record, the type of crime committed, ties to the community, and their history of failing to appear at court proceedings.
ProPublica's analysis reveals that higher Northpointe scores are slightly correlated with longer pretrial incarceration in Broward County. But there are many reasons that could be true other than judges being swayed by the scores — people with higher risk scores may also be poorer and have difficulty paying bond, for example.
Most crimes are presented to the judge with a recommended bond amount, but he or she can adjust the amount. Hurley said he often releases first-time or low-level offenders without any bond at all.
However, in the case of Borden and her friend Sade Jones, the teenage girls who stole a kid's bike and scooter, Hurley raised the bond amount for each girl from the recommended $0 to $1,000 each.
Hurley said he has no recollection of the case and cannot recall if the scores influenced his decision.
The girls spent two nights in jail before being released on bond.
"We literally sat there and cried" the whole time they were in jail, Jones recalled. The girls were kept in the same cell. Otherwise, Jones said, "I would have gone crazy." Borden declined repeated requests to comment for this article.
Jones, who had never been arrested before, was rated a medium risk. She completed probation and got the felony burglary charge reduced to misdemeanor trespassing, but she has still struggled to find work.
"I went to McDonald's and a dollar store, and they all said no because of my background," she said. "It's all kind of difficult and unnecessary."