OLYMPIA — When law enforcement shows up to a domestic violence incident in King County, they fill out a robust form, documenting things like the victim and suspect’s demeanor, mental health, injuries and their first language. “Red flags,” like strangulation, threats of suicide, and whether the suspect has harmed children or pets, are also documented. 

Officials say the data, if synthesized, could be key to identifying trends in which offenders are most at-risk of re-offending.

King County, unlike other counties across the state, uses a unified version of this form across all law enforcement agencies. But currently, the forms are “just sitting in piles,” said Rep. Roger Goodman, D-Kirkland. 

Goodman had been pushing for state funds so that a researcher at Washington State University could start developing a risk assessment tool. Those funds — $50,000 — were recently included in the Legislature’s final budget agreement, which still needs to be sent to the governor’s desk before the end of the session Thursday.

The assessment tool could point out trends to help law enforcement officers, prosecutors and judges make better decisions about whether to arrest, detail pre-trial, or order treatment for offenders.

However, risk assessment tools remain controversial, with several civil rights organizations suggesting they can do more harm than good. Additionally, Washington state is still struggling to gather vital information to inform such a tool.

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But Dr. Zachary Hamilton, the director of the Washington State Institute for Criminal Justice and the person who would lead the creation of the risk assessment tool, said it would enable officials to make informed decisions, instead of “stumbling around in the dark.”

Making decisions in domestic violence cases is really hard to do,” David Martin, a King County senior deputy prosecutor said. 

Martin also noted that those decisions can be a matter of life and death, as domestic violence is a strong predictor of future violent behavior and has a high rate of recidivism.

Martin pointed to a case last year where a Clark County man, despite an extensive history of abuse and prosecutors asking for a higher bail, was able to post bail. Then, the man violated a restraining order and shot his wife multiple times in front of her children.

After the woman’s death, the judge who set the bail told reporters that decisions relating to domestic violence cases are uniquely difficult and unpredictable

Hamilton said the tool could be developed within a year and ready to be tested in King County. It may be too soon to say how the tool would transform the criminal justice system, but if it ends up being a good predictor of violent behavior in King County, Hamilton said, it could be expanded and adapted to fit other jurisdictions. 

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Risk assessment tools’ spotty history

Last month, representatives of domestic violence work groups — including Hamilton and Martin — urged lawmakers to fund the creation of the risk assessment tool, while at the same time recognizing that risk assessment tools have a spotty reputation when it comes to racial bias.

“The science says they aren’t great. They can get a lot better,” Martin said. 

A 2016 ProPublica investigation found that a widely used risk assessment tool, not specific to domestic violence, was rating Black defendants at higher risk to re-offend than their white counterparts, and in many cases was inaccurate. The risk assessment tool took into account an individual’s criminal record, their parents’ records, and if their friends partook in illegal drugs.

The findings called into question whether the assessment tool perpetuated structural racism by keeping communities of color — which are already over-represented in the criminal justice system — in generational cycles of incarceration.

Jaime Hawk, legal strategy director for the American Civil Liberties Union of Washington, said data points can have “baked-in bias” if certain populations are over-policed, over-arrested, or impacted disproportionately in other ways.

“The narrative is that it’s data-driven,” Hawk said. “But if it’s racist data, is that progress?”

The Pretrial Justice Institute also updated its stance in February to oppose the use of risk assessment tools, saying they “can no longer be a part of our solution for building equitable pretrial justice systems.”

In its 2018 report to the Legislature, the group acknowledged that a tool relying heavily on criminal history may be inherently prejudiced.

“The factors and/or the data used in the assessment may be fundamentally biased because of past practices that resulted in inequitable numbers of arrests and convictions of minority populations,” the report read. The report also stated that risk assessment tools specific to domestic violence are “less well-studied” than more general tools.

Hawk also cited a concern that the tools rely on collecting data from defendants without an attorney present.

Hamilton said the opposition represents “somewhat of an over-reaction,” arguing that risk assessment tools, when used correctly, act simply as a “mirror of your population.”

Data from victims

In advocating for a risk assessment tool, the work group presented lawmakers with an additional challenge. While information from victims is important for a robust risk assessment tool, officials told lawmakers that victims continue to be hesitant to provide it out of distrust and fear that it could be used against them by the perpetrator.

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“This is a new area of research and inquiry that needs to be addressed, and quite frankly, we’re struggling with it,” Eric Lucas, a Snohomish County Superior Court judge who serves on the work group, said. “We have one side, we have the perpetrator’s side, but we don’t really have the victim’s side.”

Judge Mary Logan, who serves on the Spokane Municipal Court, said judges like her are “desperate for information on the bench.”

But, according to the work group, victims continue to feel ignored, or even coerced into giving up information. 

“I was kind of stunned when I first heard that, that people felt coerced,” Goodman said after the presentation. 

But it makes sense, he noted. 

“The life experience of a domestic violence survivor is literally on the knife’s edge. Always looking for a plan to stay safe, and always looking over her shoulder,” Goodman said. “So I hadn’t really thought about that.”

Besides feeling a loss of control, the work group also told lawmakers that some victims continue to feel disrespected or patronized at the scene of the crime and in court.

“That’s really important for us to hear,” Logan said. “So now how do we sensitively approach that while still getting as much information we can get to make reasonable decisions?”